JUDGMENT 1. - All the criminal appeals including jail appeals arise out of common facts and judgment, hence same are being decided by this common judgment. 2. Criminal Appeal Nos. 1109/205, 104/2006 and 0245/2007 filed by the accused appellants, whereas Criminal Jail Appeal Nos. 48/2006, 028/2006, and 029/2006, sent through post, have been filed against the judgment of conviction and sentence dated 29-10-2003 passed by Addl. District and Sessions Judge S.No.2 Kishangarhbass, Alwar (for short 'the trial Court') by which it convicted and sentenced the accused appellants as under: Accused appellant Hamida for the offence under section 412 IPC: Ten years Rl and Rs. 5,000/- fine. In default of payment of fine, he shall further undergo one year SI. Accused appellant Hamida for the offence under section 397/120B IPC Seven years Rl and Rs. 5,000/- fine. In default of payment of fine, he shall further undergo one years SI.Accused appellants; Jagdish @ Surendra, Rajesh @Tunda, Vijay @ Landi, Harchandi @ Dharamveer, Vikram @ Tatari and Sanjay @ Papdi for the offence under section 397 IPC:Seven years Rl and Rs. 5,000/- fine. In default of payment of fine, he shall further undergo one year SI.Brief facts of the case are that one Jitendra Yadav submitted a written report Ex. P9 at P.S. Tijara on 2-04-2000 wherein it was alleged that today in the night at 12 his wife and mother were sleeping; at that time, all of a sudden 6-7 person entered into the house armed with gun, katte, kulhadi and sariya. They closed the wife and mother of the complainant in a room and threatened that if they make noise then they will be shot and they decamped with one 12 bore licensed gun, five necklaces of silver, 3 golden rings, one silver ring, 2 golden Om, pandi of gold and silver of his son, Ganth of gold weighing one and half tola, 3 pairs silver payjeb, one pair golden rings, one silver chain, Rs.2000/- cash, one gent's watch and one lady's watch etc. 3. On the basis of this written report, the police registered an FIR No. 114/200 for the offence under sections 457 and 380 IPC. Later on the police added section 395 IPC. 4. After investigation the police submitted charge-sheet against the accused persons for the aforesaid offences. 5. 3. On the basis of this written report, the police registered an FIR No. 114/200 for the offence under sections 457 and 380 IPC. Later on the police added section 395 IPC. 4. After investigation the police submitted charge-sheet against the accused persons for the aforesaid offences. 5. The trial Court after hearing framed charges against the accused persons for the aforesaid offences, who denied the charges, pleaded not guilty and claimed to be tried. 6. The prosecution in support of its case produced as many as 18 witnesses and certain documents were got exhibited. 7. Thereafter, the statements of the accused persons under section 313 Cr.PC were recorded. In defence the accused persons produced as many as two witnesses. 8. The trial Court after hearing both the parties, convicted and sentenced the accused persons for the aforesaid offences vide judgment dated 29-1-2005. 9. The accused appellants being aggrieved with the impugned judgment of conviction and sentence dated 29-10-2005 have preferred instant appeals. 10. I have heard both the counsel appearing for the respective parties and carefully scanned the entire material made available to me. 11. Counsel appearing for the accused appellants submit that at the time of passing the impugned judgment of conviction and sentence the trial Court has not properly considered the statements of the prosecution witnesses as also other material made available to him. According to them no offence has been committed by the accused appellants under the Code. The name of the accused appellants did not find place in the FIR. Neither the feature nor any identification of the clothes worn by the miscreants, as mentioned in the report, nor in the statement recorded under section 161 Cr. P.C. According to them Trilok Singh is the main witness but the prosecution has failed to produce him. The doctor has also not been examined in this case. The trial Court has also failed to consider that complainant Jitendra has the approach and influence in the police department as his grand father was working in the police department and at present his son Ravindra is working in the police. Neither any foot print has been taken from the place of incident nor there is any incriminating evidence on record to connect the accused appellants with the crime. Neither any foot print has been taken from the place of incident nor there is any incriminating evidence on record to connect the accused appellants with the crime. The trial Court has also failed to consider that the so called recovery of silver necklace, 3 pairs of payjeb of silver, one chain of silver and one ring of the silver has not been got identified by the investigating agency. There is no iota of evidence on record to connect the accused appellants with the crime for the offence under section 120B IPC. In addition to above arguments Mr. R.K. Mathur, counsel for accused appellant Sanjay @ Papdi, further submits that the trial court has failed to consider that on what basis accused appellants were identified, is not evident. The identification parade held in this case is mere paper formality while it was not possible for a person to identify an accused after a long period of 4 Years. 12. Further, Mr. Sinsinwar, counsel appearing for the accused appellant Hamida submits that the accused appellant Hamida be released for the period already undergone by him in confinement as he has remained in judicial lock up for more than 5 years one month and 24 days out of total 10 years sentence and if not then his sentence be reduced from 10 years to 7 (seven) years as also the benefit of remission be given to him under the provisions of Section 432 Cr.PC. 13. To support his case Mr. Sinsinwar, Advocate has placed reliance upon following judgments: (1) Naryan Prasad and others v. State of M.P., reported in 2006(1) WLC (SC) Cri. 53 : 2006(2) SCC (Cri.) 161. Head note C of which is relevant, runs as under: "Penal Code = 1860-S. 412 and Section 411- Receiving stolen property pertaining to dacoity-No evidence to show that accused had full knowledge that ornaments purchased by them, were subject dacoity-One of the accused, N, claiming that he had purchased them under receipt from some person but that person not examined as defence witness-Hence held, all accused can at best be charged under Section 411 - Sentence of imprisonment reduced to three years from ten years." (2) Narayan Singh and others v. State of Madhya Pradesh, 1993 Cr. L. J. 3669 , head-note of which runs as under: "Penal Code (1860), Ss 395, 412- Dacoity-Presumption that accused are dacoits-Can be invoked only when possession of stolen articles is recent-Accused arrested after lapse of 3/4 months-Cannot be held to be dacoits merely because certain stolen articles were recovered from them-Liable to be convicted under Section 412 for receiving stolen property." (3) Amar Singh and others v. State of Madhya Pradesh, AIR 1982 SC 129 , Head-note of which runs as under: "Penal Code (45 of 1860), Ss 412, 395-stolen property-Recovery very soon after dacoity took place-Theft of property in course of dacoity proved-Held that accused could not be convicted under Section 395 on basis of presumption under Section 114, Evidence Act-Conviction altered to that under Section 412 IPC-Sentence reduced from 4 years to two years Rl. Judgment of Madhya Pradesh High court, Reversed (Evidence Act (1872) Section 114). 14. So far as other accused appellants (except accused appellant Hamida) are concerned, counsel appearing on their behalf submit that all the accused appellants have remained in judicial lock for more than 5 years, one month and 24 days out of 7 years, thus, the accused appellants be released for the period already undergone by them in confinement, if not then they be given the benefit of remission under the provisions of Section 432 Cr.P.C. 15. Mr. Pradeep Shreemal, Public Prosecutor for the State controverted the afore-mentioned submissions and submits that the trial Court has passed the impugned judgment of conviction and sentence after considering all the material made available to him. Thus, impugned judgment of the trial Court is just and proper and no interference is required to be called for in the impugned judgment. 16. I have heard the learned counsel for the parties and gone through the entire record and judgment of the trial court. So far as merits of the case are concerned Mr. Thus, impugned judgment of the trial Court is just and proper and no interference is required to be called for in the impugned judgment. 16. I have heard the learned counsel for the parties and gone through the entire record and judgment of the trial court. So far as merits of the case are concerned Mr. Sinsinwar, learned counsel appearing on behalf of the appellant Hamita during the course of arguments mainly confined his arguments for releasing the accused appellant Hamida for the period already undergone by him, as the accused appellant Hamida in this case has remained in judicial custody for more than 5 years, one month and 27 days, I do not think it proper to release the accused appellant Hamida for the period already undergone by him but looking to the facts and circumstances of the case as also the record of the case made available to me, his sentence can be reduced from 10 years to 7 (seven) years. 17. So far as releasing of other accused appellants for the period already undergone by them in confinement is concerned, it is not a fit case where the other accused appellants can be given the benefit of releasing the accused appellants for the period already undergone by them in confinement. 18. So far as the benefit of remission to all the accused appellant's is concerned, the State Government can consider the same keeping in view their antecedents in Jail and looking to their future. 19. In the result, this criminal appeal filed by accused appellant Hamida is partly allowed and the impugned Judgment dated 29-10-2005 passed by Addl. District and Sessions Judge S. No. 2, Kishangarhbass, Alwar passed in Sessions case No. 52/2004 is modified and the accused appellant Hamida, who has been sentenced to 10 years Rl, his sentence is reduced to 7 (seven) years. 20. So far as other accused appellants are concerned, the appeals filed on their behalf are dismissed and the impugned judgment of conviction and sentence dated 29-10-2005 passed by the trial court is maintained. 21. The State Government is directed to consider the matter of remission of sentence of accused appellants within a period of 15 days from the date of receipt of a certified copy of this Judgment, keeping in view their antecedents in Jail and looking to their future. 22. 21. The State Government is directed to consider the matter of remission of sentence of accused appellants within a period of 15 days from the date of receipt of a certified copy of this Judgment, keeping in view their antecedents in Jail and looking to their future. 22. Rest part of the Judgment of the trial Court is maintained.Appeal Partly Allowed in Respect of H-Other Appeals Dismissed. *******