JUDGMENT:- These appeals are directed against the conviction of the appellants by the learned 2nd Additional Sessions Judge, Was him for offence punishable under Section 395 of the Penal Code and sentence of rigorous imprisonment for seven years with fine of Rs.500/- imposed upon him. 2. Facts, which led to conviction of the appellants, are as under: One Ramesh, a Salesman of Sanjay Oil Mill at Akola had supplied coconut oil tins to shopkeepers at Nanded and had collected the price paid by the shopkeepers. On 7-7-1996, he was returning in the same mini-truck along with driver Gajanan and one Machhindra. At about 10 a.m., they stopped the vehicle near Village Medshi for easing themselves. Ramesh and Machhindra alighted from the truck while driver Gajanan continued to sit. Two tempo Trax vehicles came near the mini truck and 8 to 10 persons, including three Sardarjis, descended from the tempo Trax. They started beating the driver of the mini truck. Ramesh and Machhindra rushed to the truck and they too were beaten. Cash amount of Rs.1,90,000/ - was robbed. The mini truck was driven by the dacoits to a forest. Victims were undressed and left in the forest. The robbers decamped with money in the mini truck. The victim somehow reached Patur Police Station and gave a report, whereupon an offence was registered against 8 to 10 unknown persons. 3. Investigation was transferred to Police Station, Malegaon within whose jurisdiction the offence had taken place. On 12-7 - I 996, accused Satish. Mohd. Ratlq. Ashok and Pralhad were arrested. Appellants Anwarkhan and Charansingh were arrested on 20-3-1996 and 5-11-1996 respectively. Upon disclosure by Mohd. Rafiq (original appellant No.1 in Criminal Appeal No.156 of 1998, who died during pendency of appeal), cash amount of Rs.5,000/- was seized from his house. It is not necessary to refer to seizures from other accused persons. A sum of Rs.7,000/- was seized at the instance of appellant Anwarkhan from the house of his father-in-law upon a memorandum. Appellant Charansingh stated that he had purchased a motor-cycle out of the stolen amount. He also claimed to have paid a sum of Rs.500/- to Mahendra Sarode. The motor-cycle, a dagger and a cash of Rs.500/were seized at the instance of appellant Charan singh. Appellant Charansingh stated that he had purchased a motor-cycle out of the stolen amount. He also claimed to have paid a sum of Rs.500/- to Mahendra Sarode. The motor-cycle, a dagger and a cash of Rs.500/were seized at the instance of appellant Charan singh. The police caused a test identification parade to be carried out by the Executive Magistrate, at which both the appellants Anwarkhan and Charansingh were duly identified by the witnesses. 4. Upon completion of investigation, a charge-sheet was sent up against in all six persons, of whom Satish was absconding. The remaining five accused were put to trial. Since they pleaded not guilty to the charge of offence punishable under Section 395 of the Penal Code, in its attempt to bring home the guilt of the accused, the prosecution examined in all 18 witnesses. After considering the evidence tendered in the light of defence of denial raised by the accused persons, the learned Additional Sessions Judge acquitted accused No.3 Ashok and accused No.4 Pralhad of the offence charged. Appellants Mohd. Rafiq, Anwarkhan and Charansingh were convicted and sentenced as indicated above. Appellant Mohd. Rafiq died during the pendency of the appeal and, therefore, the proceedings, insofar as he was concerned, abated as per order dated 17-9-2007. 5. I have heard Shri. D.R. Rupnarayan, learned Advocate for appellant in Criminal Appeal No.156 of 1998, Shri. R.M. Daga, learned Advocate for appellant in Criminal Appeal No.203 of 1998, and Shri. O.D. Kakde, learned Additional Public Prosecutor for the State. With the help of the learned counsel for the parties, I have gone through the record. 6. The learned counsel for appellant Anwarkhan submitted that there are six reasons why the prosecution case should be rejected. First, there is a difference in the number of miscreants mentioned in the FIR at Exhibit 90. where it is stated that 8 to 10 unknown persons had robbed the complainant, whereas in the evidence of PW-8 Ramesh and PW-10 Gajanan, there is a reference to only 7 or 8 persons. As rightly pointed out by the learned APP, according to PW-8 Ramesh, three persons caught hold of their hands and asked them to sit in the vehicle and 6 to 7 persons had brandished a knife. He submitted that whether the number of persons were 8 to 10 or 6 to 7 is hardly a material contradiction. 7. As rightly pointed out by the learned APP, according to PW-8 Ramesh, three persons caught hold of their hands and asked them to sit in the vehicle and 6 to 7 persons had brandished a knife. He submitted that whether the number of persons were 8 to 10 or 6 to 7 is hardly a material contradiction. 7. The learned counsel next submitted that in the FIR, it is stated that a sum of Rs.59,000/- was forcibly taken away by the miscreants, whereas PW-8 Ramesh stated that a sum of Rs.1,88,000/- to 1,90,000/- was robbed. In the FIR, a sum of Rs.59,000/- has been mentioned in column No.(b). But in the transcript of oral report, there is reference to robbery of Rs.l,90,000/-. Therefore, this discrepancy is also immaterial. 8. The learned counsel next submitted that the FIR does not mention that the cash stolen had any marks of identification. Though PW-8 Ramesh stated that the shopkeepers, who had paid him, had signed on the top-most currency note in each bundle and claimed to have stated so to police, he could not explain why this was missing from his statement. However, this omission was not put up to the Investigating Officer. Hence, it loses significance. 9. Such shop-keepers have been examined. PW-4 Mohd. Aslam stated that he paid a sum of Rs.21,000/- in bundles of currency notes of the denominations of Rs.50/- and Rs.20/-. He stated that he had signed the topmost currency note in these bundles. The bundles of currency notes of Rs.20/- was marked as Articles 1 and 2 and bundle of currency notes of Rs.50/- was marked as Article 2. It was suggested to him in cross-examination that in fact he had not signed the notes when he had handed over the notes to PW-8 Ramesh. He denied the suggestion that he signed the top-most currency note of bundle of Rs.50/- on 13-7-1996 at the instance of the police. Though he claimed that it was his practice to sign on the top-most currency note in each bundle, he could not assign any reason as to why this was not mentioned in his statement. However, even this omission was not put to the Investigating Officer and hence is insignificant. 10. Identification of bundles of currency notes of Rs.50/- and Rs.20/- by PW4 Mohd. However, even this omission was not put to the Investigating Officer and hence is insignificant. 10. Identification of bundles of currency notes of Rs.50/- and Rs.20/- by PW4 Mohd. Aslam, however, is of no use in connecting the present appellants Anwarkhan and Charansingh to the seizures effected, PW12 PSI Prakash Dukare stated that accused Mohd. Rafiq i.e, the deceased appellant, was in his custody and he recovered a sum of Rs.5,000/ - at the instance of Mohd. Rafiq vide memorandum and panchanama Exhibits 101 and 102, The bundle of currency notes of the value of Rs.50/- is identified by this witness as Article 2. As far as the bundle of notes of Rs.20/-, which is identified as Article 1, is concerned, it seems to have been seized from original accused Ashok Kamble vide memorandum and panchanama at Exhibit 127 and seizure at Exhibit 128. This can be seen from the evidence of PW -17 Mitha Rathod, who was a panch on this panchanama as well as Exhibits 101 and 102. 11. PW-5 Kamal Agrawal claimed to have paid a sumofRs.9,000/- to PW-8 Ramesh. He stated that he had paid the amount, among others, in two bundles of currency notes of Rs.10/- each. He identified those bundles as Articles 4 and 5 before the Court. He stated that he had signed for his convenience on the top-most notes in the two bundles. He stated that he did not remember whether he told the police about his practice of mentioning the number of notes on the top-most notes in every bundle. He also did not remember whether the police had obtained his signature on the bundle after it was seized. In view of this, his evidence is of no help in identifying the bundles of notes at Articles 4 and S to be the ones which he handed over, first, because he does not positively state having told the police about his practice of mentioning the total number of notes on the bundle and also because he cannot categorically deny that his signature was obtained on the bundles by the police after seizure was effected. 12. PW -13 Mohd. Javed stated that on 6-7-1996 he had paid a sum of Rs.15,000/in cash in currency notes of denominations of Rs.10/-, Rs.20/- and Rs.50/- to PW-8 Ramesh. 12. PW -13 Mohd. Javed stated that on 6-7-1996 he had paid a sum of Rs.15,000/in cash in currency notes of denominations of Rs.10/-, Rs.20/- and Rs.50/- to PW-8 Ramesh. He identified a bundle of currency notes of Rs.50/- as Article 6 stating teat the top-most note in the bundle bore the figure 100' as also his special mark. 13. PW -II Ganesh was examined to prove seizure of a sum of Rs.7,000/- vide memorandum and panchanama a. Exhibits 97 and 98. He, however, turned hostile and denied that any such statement was made or any such amount was seized. 14. PW-18 P.I. Gawande stated that on 30-8-1996 upon interrogation Anwarkhan agreed to produce a sum of Rs. 7,000/concealed by him in a tin box in the house of his father-in-law. He produced a bundle of currency notes of Rs.50/- and two bundles of currency notes of Rs.10/-. PW-18 P.I. Gawande states that the bundles shown to him were the same. However, they were not identified by him before the Court as a specific article number and, therefore, it will be difficult to connect the bundle to Article 6 identified by PW-13 Mohd. Javed as the bundle of notes given by him to PW-8 Ramesh. It may also be pointed out that this witness does not identify the bundle of currency notes of Rs.10/- each as Article 4 or S, which had been identified by PW-S Kamal Agrawal. 15. The learned APP, however, submitted that this failure of the prosecution to connect the appellants to the seizure of notes effected is not of vital importance. He submitted that had the case rested on circumstantial evidence alone, then this deficiency in the prosecution evidence would have altered the fortune of the appellants. He submitted that the case rests on the ocular testimony of the complainant and other witnesses, who had duly identified both the appellants Anwarkhan and Charansingh as the persons, who participated in the robbery. Therefore, according to the learned APP, this deficiency in identification of bundles of notes is insignificant. 16. In fact, identification of the appellants has also been attacked by the learned counsel for the appellants as a reason why the prosecution case ought to be thrown out. Therefore, according to the learned APP, this deficiency in identification of bundles of notes is insignificant. 16. In fact, identification of the appellants has also been attacked by the learned counsel for the appellants as a reason why the prosecution case ought to be thrown out. There is no doubt that the miscreants were not known to complainant PW-8 Ramesh as well as PW10 Gajanan, who was driver of the vehicle, and who are the two eye-witnesses, who have been examined to prove the prosecution case. According to PW-10 Gajanan as well as PW-8 Ramesh, they had been called upon by the Executive Magistrate to identify the miscreants in different identification parades held by the police. PW -8 Ramesh states that on 8-7-1996, he had been called at Nanded Police Station where the police had shown photographs of the culprits. He identified accused Charansingh from those photographs. The learned counsel for appellant Charansingh submitted that since no panchanama of having shown such photographs is made, the evidence in this regard becomes suspect. In cross-examination, PW8 Ramesh stated that he did not remember how many photographs of persons wearing turbans and sporting beards and mustaches were in the album, which was shown by the police. However, he denied that the police had shown photograph of only one Sardmji (Sikh). He could not state as to whether there were photographs of other Sardarjis in the album. Though the learned counsel for the appellants submitted that displaying the photograph of a suspect before actually putting the suspect to identification parade reduces the importance of the identification parade, the learned APP rightly submitted that in order to investigate into the offence, the police had to find out the identify of miscreants and, therefore, they had rightly shown the album containing several photographs to the victim. He submitted that absence of a panchanama about showing photographs would not vitiate the action taken by the Investigating Officer. He submitted that the cross-examination of the witness clearly rules out that the police had shown photograph of only appellant Charansingh and, therefore, in fact, victim PW-8 Ramesh had picked up Charansingh from several other photographs including photographs of SardaIjis, which were shown to him. This having been established from the evidence of PW -8 Ramesh. it would not be open for the defence to assail the evidence in respect of identification parade subsequently conducted. 17. This having been established from the evidence of PW -8 Ramesh. it would not be open for the defence to assail the evidence in respect of identification parade subsequently conducted. 17. PW-10 Gajanan stated that he had identified appellant Anwarkhan in the identification parade dated 1-10-1996. He states that appellant Anwarkhan had tom his clothes and beaten him. He as well as PW -8 Ramesh stated that in another identification parade held on 20-12-1996 at the office of Executive Magistrate, Malegaon, both of them had identified appellant Charansingh. This identification parade was held by PW-16 Laxman Mahinge, who was serving as Executive Magistrate and Naib Tahsildar at Malegaon. He seems to have held first identification parade on 30-7-1996 at which deceased appellant Mohd. Rafiq and two other accused persons Satish and Pralhad were put to identification parade. In identification parade held on 1-10-1996, appellant Anwarkhan was identified by witnesses Macchindra, Gajanan, Kedarnath and Shatrughna. Of them, only Gajanan has been examined as PW-10. 18. The learned counsel for appellant Anwarkhan submitted that Anwarkhan was arrested on 23-8-1996. Exhibit 109 is the letter dated 2-9-1996, whereby police had requested the Executive Magistrate to hold identification parade for appellant Anwarkhan. There is an endorsement on this letter that the identification parade would be held on 6-9-1996. Executive Magistrate PW-14 Laxman Mahinge clarified that since the accused was not produced on that day, the parade could not be held. He states that the Tahsildar then asked him about two to three days before 1-10-1996 to hold the identification parade on 1-10-1996 and, therefore, he fixed the identification parade on 1-10-1996. Though it is true that the identification parade ought to have been prompt! y held after the accused was arrested, the delay does not appear to be intentional or in order to take any advantage of appellant Anwarkhan being in custody. It is not shown that after 2-9-1996, appellant Anwarkhan continued to be in the custody of police. He might have been in magisterial custody and since he was not produced from jail, he could not be paraded on 6-9-1996. As rightly pointed out by the learned APP, in the month of September every year, there are several festivals, like Ganesh Festival and Durga Festival, etc" and it is difficult to ensure police authorities to escort under trial prisoners even to Courts. As rightly pointed out by the learned APP, in the month of September every year, there are several festivals, like Ganesh Festival and Durga Festival, etc" and it is difficult to ensure police authorities to escort under trial prisoners even to Courts. Therefore, there is nothing wrong in Tahsildar's fixing the date of identification parade as 1-10-1996. 19. PW-8 Laxman Mahinge stated that on 1-10-1996, Anwarkhan was made to stand in a row of five dummies and thereafter the four witnesses were one after the other required to identify the culprit. He proved the memorandum of the identification parade at Exhibit 110. The memorandum shows that Anwarkhan had been given an opportunity to change his place and had in fact changed his position after two witnesses Macchindra and Gajanan had identified him. Witness Gajanan had specifically stated before the Magistrate that appellant Anwarkhan had obstructed the vehicle, removed the clothes of the witness and assaulted the witness. The cross-examination of the Executive Magistrate does not indicate that there was any occasion for the witnesses to see the accused in isolation before the accused was paraded. Hence, the evidence in respect of the parade cannot be assailed. 20. The learned counsel for the appellants submitted that this parade dated 110-1996 is vitiated because one of the dummies used in this parade Shri. D.S. Kamble had also been a dummy in earlier parade dated 30-71996, at which the other accused persons, i.e. Macchindra, Satish and Pralhad were paraded. The memorandum in respect of that parade was also proved by PW-14 Shri. Mahinge at Exhibit 102. There can be no doubt that ideally the Executive Magistrate should have chosen different dummies for each parade. If the witnesses, who were to identify the accused were to be the same. However, as rightly pointed out by the learned APP, in this case, use of only one dummy Shri. D.S. Kamble in the first and the second parades does not vitiate the identification of appellant Anwarkhan, because there were four other persons, who had not been seen by the witnesses in earlier parade, to enable the witness to exclude those persons or to single out Anwarkhan. He rightly submitted that the parades had been held with a gap of almost two months and, therefore, inclusion of one dummy from the earlier parade in the subsequent parade would not be significant. He rightly submitted that the parades had been held with a gap of almost two months and, therefore, inclusion of one dummy from the earlier parade in the subsequent parade would not be significant. Therefore, the objections to the identification of appellant Anwarkhan on this count have to be rejected. 21. It seems that appellant Charansingh was arrested last and a request for holding identification parade of Charansingh was received by the Executive Magistrate vide Exhibit 117 on 17-12-1996 and he promptly fixed 21-12-1996 as the date on which the parade was to be held. The memorandum of this parade is at Exhibit 115. It seems that some of the witnesses were not present at the identification parade dated 5-12-1996 and, therefore, a fourth parade was held on 21-12-1996 at which appellant Charansingh was paraded along with five dummies. At this parade, both PW-8 Ramesh and PW-IO Gajanan identified appellant Charansingh. It is true that though appellant Charansingh was Sikh, no Sikh was used as a dummy at these parades. Therefore, it is the contention of the learned counsel for appellant Charansingh that it was possible for the witness to single out Charansingh as the only Sikh amongst non-Sikhs and, therefore, he submitted that this identification is vitiated. However, the fact that Charansingh photograph had already been identified by PW -8 Ramesh on 8-7-1996 from an album of photographs in the Police Station, i.e. soon after the incident, cannot be lost sight of. This would add to the weight of the evidence of PW -8 Ramesh, though the identification parade held on 21-12-1996 may in itself be inadequate to provide corroboration to identification in Court. 22. PW-18 Investigating Officer PI Gawande stated that on 7-11-1996 appellant Charansingh made a statement while in police custody about purchase of a motor-cycle from a stolen amount and concealment of a dagger used in the commission of offence at his house. This memorandum was recorded at Exhibit 119 in presence of PW-15 Gunwanta, who, however, refused to support the prosecution. PW-18 Investigating Officer PI Gawande stated that accused Charansingh led them to the house and produced Kawasaki motor-cycle and documents pertaining to the motor-cycle as well as a dagger, which were seized vide Exhibit. 120. This memorandum was recorded at Exhibit 119 in presence of PW-15 Gunwanta, who, however, refused to support the prosecution. PW-18 Investigating Officer PI Gawande stated that accused Charansingh led them to the house and produced Kawasaki motor-cycle and documents pertaining to the motor-cycle as well as a dagger, which were seized vide Exhibit. 120. The cross-examination on the question of seizure of dagger is, however, superficial and contains only a suggestion that Charansingh did not make any statement and nothing was seized in pursuance of such a statement by Charansingh PW -8 Ramesh had not referred to the dagger. However, PW -10 Gajanan identified the dagger (Sura) as the same by which appellant Charansingh had caused injury to him. 23. The learned Counsel for appellant Charansingh submitted that first, the evidence of PW-18 Investigating Officer PI Gawande about recovery of dagger does not receive corroboration from the panch examined by the prosecution, He further submitted that the evidence of recovery under Section 27 of the Evidence Act is a weak type of evidence and cannot in itself be sufficient to fasten criminal liability on an accused, He further submitted that though PW-10 Gajanan claimed to have suffered bleeding injuries and also claimed that he was referred for medical examination, no Medical Officer has been examined and no medical certificate is placed on record, Therefore, according to him, the evidence about seizure of this dagger is of no use in connecting appellant Anwarkhan to the crime. 24. As rightly pointed out by the learned APP, had the case rested solely on the circumstantial evidence, then the argument that the evidence about discovery under Section 27 of the Evidence Act is of a weak character, would have had some force, The case rests on ocular testimony of eye-witnesses, one of whom claims to have sustained injuries at the hands of Charansingh by the same instrument which has been seized, He, therefore, submitted that this evidence lends corroboration to the ocular version of PW-10 Gajanan and, therefore, was rightly believed by the learned Trial Judge. 25. There is obviously no reason for PW-8 Ramesh and PW-IO Gajanan to falsely identify appellants Anwarkhan and Charansingh as two of the several dacoits, who robbed them, There is no reason why the police would pick up these two persons for falsely involving them in a serious crime. 25. There is obviously no reason for PW-8 Ramesh and PW-IO Gajanan to falsely identify appellants Anwarkhan and Charansingh as two of the several dacoits, who robbed them, There is no reason why the police would pick up these two persons for falsely involving them in a serious crime. In fact, it is worthy of note that the offence took place within the jurisdiction of a different district Akola, whereas the appellants were picked upon from Nanded, It seems that the police could go to the roof of the matter and nab the culprits on the basis of clue provided by the victim by identifying appellant Charansingh in the album of photographs shown to the victim, In view of this, the testimonies of PW -8 Ramesh and PW-10 Gajanan sound natural and there is absolutely no reason to disbelieve them insofar as they identified appellant Anwarkhan and Charansingh as the persons, who participated in the dacoity, No fault can be found with the conclusions drawn by the learned Additional Sessions Judge in this regard. 26. As regards the sentence of rigorous imprisonment for seven years and fine of Rs,500/- imposed on both the appellants, considering the nature of crime, it cannot be said that the sentence is harsh, It does not call for any interference. 27. The appeals are, therefore, dismissed, The appellants shall surreneer to their bail within a period of eight weeks to Suffer their sentences, If they do not so surreneer, the Trial Court shall take steps to have them arrested and sent to prison. Appeals dismissed