Judgment These five Appeals are directed against conviction of seven appellants by the learned Additional Sessions Judge, Sewree, Mumbai for the offences punisha Sections 395, 397, 170 and 342 of the Indian Penal Code and sentences of R.I. for seven years with a fine of 5000/-or in default S.I. for one year on th counts, R.I. for one year with a fine of ` 1000/-or in default S.I. for one month on the third count, R.I. for one month with a fine of ` 500/-or in default S.I. for se on the fourth count imposed upon the appellants on the conclusion of Sessions Cases Nos.971 of 2006 and 218 of 2007 before him. The learned Judge acq appellant Mohammad Sajid Abdul Majid Momin, accused No.1 of the offence punishable under Section 342 of the Indian Penal Code and acquitted all the ap the offence punishable under Section 135 of the Bombay Police Act. 2. Facts which are material for deciding these appeals are as under:- On 19th July, 2005 at about 11:00 a.m. when Gaurang Shah and members of his family were busy in household activities in their flat, one of the appellant through half open door of the house about one Jayant. He was told that there was no person by name Jayant in the family. The miscreant was asked as to wh address given, whereupon the miscreant insisted that the address given was the same where complainant's family resided. He told that he was from the In Department. Gaurang Shah went up to the door and found six more persons. All of them entered complainant's house and asked him to call all the family mem miscreants displayed their weapons and detained family members at various places in the house. They forced family members to open cupboards and took and jewellery. They tied up the complainant and gaged him by pasting a tape over his mouth and then decamped with the booty. 3. The complainant managed to untie himself and untied his father. He also released other family members and rushed outside in search of the miscreants, not to be found. He went to the police station and gave a report describing the miscreants. An offence was registered and investigation commenced. T performed panchanama of spot and arrested some of the miscreants in July, 2006 i. e. about an year after the incident. He also released other family members and rushed outside in search of the miscreants, not to be found. He went to the police station and gave a report describing the miscreants. An offence was registered and investigation commenced. T performed panchanama of spot and arrested some of the miscreants in July, 2006 i. e. about an year after the incident. Accused No.7 Prakash Bane was a 23rd November, 2006. In course of investigation, the police recovered a chopper from accused No.2 Prakash Patade. On the basis of information given b No.1 Mohammad Sajid Abdul Majid Momin, three necklaces and an ear ring were recovered from one Rupkala Art, a Jewellery Shop. Another chopper was at the instance of accused No.4 Ganesh Katawate. On the information given by accused No.3 Mahendra Bhuvad, a ring was recovered. The articles seized w to the complainant in presence of panchas and the complainant identified those articles. A panchanama was drawn up. 4. On 31st July, 2006 the Special Executive Officer was requested to hold identification parade. In the identification parades held in Arthur Road Prison and C Thane, some of the accused persons were identified. After the arrest of accused No.7 Prakash Bane, he was also subjected to identification parade in Ar Prison, Mumbai before another Special Executive Officer. After completing investigation in respect of first 6 accused persons, charge sheet, which ca numbered as Sessions Case No.971 of 2006, was filed, and after completing investigation about the complicity of accused No.7, a supplementary charge filed, which came to be numbered eventually as Sessions Case No.218 of 2007. After the cases were committed by the learned Additional Chief M Magistrate, 22nd Court, Mazgaon, Mumbai to the Court of Session, the learned Additional Sessions Judge to whom the case was made over, charged the ap the offences punishable under Sections 395, 397, 170, 342 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Since they pleaded they were put on trial at which the prosecution examined in all 18 witnesses in its attempt to prove guilt of the accused. After considering their evidence in defence of false implication, the learned Additional Sessions Judge convicted and sentenced the appellants as mentioned earlier. Aggrieved thereby, they this Court. 5. I have heard the learned counsel for the appellants and the learned APP for the respondent _ State. After considering their evidence in defence of false implication, the learned Additional Sessions Judge convicted and sentenced the appellants as mentioned earlier. Aggrieved thereby, they this Court. 5. I have heard the learned counsel for the appellants and the learned APP for the respondent _ State. With the help of both the learned counsel I have gon the evidence on record. The evidence against the persons accused could be tabularised as under: dateofT.I. dateofarre Name ofaccused No. st Recoveryif any date/s Exh.no. WitnessesP.W.No./Name para Exh.no. WitnessesP.W. No./Name Remarks de 18/I.O.P.I.Desai 6,15/Panc [i] has Sabinadid Ibrahim 9/ SEOVilasPatil notidentify ornaments Threenecklaces, Shaikh, 4/panch . SajidMomin (ii) 1 12.7.06 one pair of 19.7.06 5 1/51 A Subhash Shirsat 17.8.06 26 Shamrao 13/purcha [ii] Not identifie earrings 13/purcha ser Dilip d by any ser Dilip Kothari eye Kothari witness 14/Sabina Memon[i] [iii] Doesnotidenti A/2, identifie s A/6 Vijaydeep 18/I.O.P.I.Desai as the 2 PrakashPatade 2 13.7.06 chopper,ring 19.7.06 1 6/16A 1,2/Panch aMurlidhar s 31.7.06 25 9/ SEOVilasPatil 4/panch person awhose t Patil[iii Shamrao [i instance ], Laxman v] recovery was 5/victim made. Gaurang [iv]PW4 7,11/eye admits witnesses signature Harshal, s & Meh admits that TI parades were held only on cross by APP. 9/ SEOVilasPatil 4/panch 18/I.O.P.I.Desai Shamrao [i 8,15/Panc v] MahendraBhuvad 13.7.06 3 [brass?] ring 23.7.06 6 2,62A has Ganesh 31.7.06 25 5/victim Gaurang, Subhash 7,11/eye Shirsat witnesses Harshal, Mehul 9/ SEOVilasPatil 18/I.O.P.I.Desai 1,6/Panch 4/panch Shamrao [i as v] GaneshKatwate 4 13.7.06 chopper 20.7.06 1 8,18A Murlidhar 31.7.06 25 5/victim Patil, Gaurang, Ibrahim 7,11/eye Shaikh witnesses Harshal, Mehul 9/ SEOVilasPatil 18/I.O.P.I.Desai 4/panch Shamrao 6,15/Panc [i 52,52A89.89 has ii] [v] Notrelevantno AmitPathak 5 24.7.06 chopper 1.8.06 A[v] Ibrahim Shaikh, 17.8.06 26 5/victim Gaurang about spot Subhash 7,11/eye Shirsat witnesses Harshal, Mehul 9/ SEOVilasPatil 4/panch VijaydeepBhole [vi] 6 31.7.06 chopper 7.8.06 90/90A 18/I.O.P.I.Desai 15/Pancha s Subhash 21.8.06 27 Shamrao [i ii] 5/victim Gaurang [vi] [P.W.1Murlidh does not say Shirsat, 7,11/eye anything] witnesses Harshal, Mehul 10/SEOVinodDivecha 9/ SEO 18/I.O.P.I.Desai Vilas [vii] Vishal 4,8/panch Patil statesthat he as 4,8/panch melted Shamrao, as bangles,r PrakashBane 7 23.11.06 Twobangles 7.12.06 2 8,28A Ganesh, 7/ 21.12.06 29 Shamrao, Ganesh emade them & purchaser 5/victim sold to Vishal Gaurang other Bhati 7,11/eye customers [vii] witnesses . Harshal, Mehul 6. PW-5 Gaurang Shah the first informant, states about the manner in which the incident took place. He states that one of the miscreants took him to the ro there was a cupboard. Harshal, Mehul 6. PW-5 Gaurang Shah the first informant, states about the manner in which the incident took place. He states that one of the miscreants took him to the ro there was a cupboard. Jewellery had been removed from one of the cupboards. He stated that he and his brother were asked to open the other cupbo avoided, but eventually the miscreants opened the other cupboard and carried away cash from the said cupboard. He claims to have released his family mem the miscreants left and then gave a report vide Exhibit 34 to the police. He stated that Gold ornaments weighing 530 Grams, Silver ornaments weighing 300 G ` 1,50,000/-in cash were stolen. He claims to have identified in July, 2006 some of the ornaments. He states that on 31st July, 2006 in Arthur Road Jail he accused No.2 Prakash Patade, accused No.3 Mahendra Bhuvad and accused No.4 Ganesh Katawate. On 17th August, 2006 in Central Prison, Thane he accused No.5 Amit Kumar. He stated that either on 21st or 31st August, 2006 in Arthur Road Prison he identified accused No.6 Vijaydip Bhole and on 21st D 2006 he identified accused No.7 Prakash Bane. In cross examination he admitted that the ornaments were not shown to him at the police station by mixing other ornaments. He admitted that some of the things which he stated in his examination-in-chief were not in his report. He stated in cross-examination th July, 2006 as also on 21st August, 2006, he, his father and brother had gone together at the venues of identification parade. He stated that there was no p turban in the identification parade held on 31st July, 2006. He stated that the place where the Test Identification Parades were held in Arthur Road Prison wa by net but the person standing outside could see what was happening at the venue of Test Identification Parade. 7. PW-7 Harshad Shah is a father of Gaurang. He corroborates Gaurang substantially on the manner in which the incident took place. He stated that cash o kept in his brief case was taken away apart from cash of ` 1,00,000/-and ornaments etc. from the cupboards. He stated that after one year he was called Police Station where he had gone along with his son Gaurang and nephew Nilesh where he identified all the Gold ornaments. He stated that cash o kept in his brief case was taken away apart from cash of ` 1,00,000/-and ornaments etc. from the cupboards. He stated that after one year he was called Police Station where he had gone along with his son Gaurang and nephew Nilesh where he identified all the Gold ornaments. He stated that they were identification of accused persons four times. First, in the Arthur Road Jail, he identified three accused persons i. e. accused Nos.2, 3 and 4. On the second o Thane Central Prison, he identified accused No.5. In the third parade, in Arthur Road Jail, he identified accused No.6 and lastly, again in Arthur Road Jail, he accused No.7. He was categorical that accused No.1 was not seen at the time of incident in the house. He admitted that several things which he had stated Court were not in his statement before the police. 8. PW-11 Mehul Shah is complainant's cousin, who was present at the time of incident and corroborated substantially the evidence of PWs 5 and 7. He too he had been to identify the appellants at Test Identification Parade in Arthur Road Prison and Thane Central Jail. He stated that he had identified accused Kumar in Thane Central Jail, accused No.7 Prakash Bane and accused No.3 Mahendra Bhuvad in Arthur Road Prison (when they were in fact not paraded but stated that he could not identify the person, who had come to the house with turban, and also could not remember whom he had identified in the first ide parade in Arthur Road Prison. 9. PW-9 Special Executive Officer Vilas Patil stated having conducted identification parade in Arthur Road Jail on 31st July, 2006 at which PW-1 Gaur identified accused Mahendra Bhuvad and Ganpat Katawate as well as Prakash Patade. He stated that the other eye witnesses too identified these per witness proved panchanama of this Test Identification Parade vide Exhibit 25. He stated that again on 17th August, 2006 he conducted Test Identification Thane Central Jail where Gaurang Shah and two other eye witnesses identified accused No.6 Vijaydip. Accused No.1 too seems to have paraded at this p was not identified by any one. Accused No.1 Mohammad Sajid Abdul Majid Momin was identified by a Gold Smith as the person, who had come with a Musl and sold ornaments worth ` 62,000/-to him. Accused No.1 too seems to have paraded at this p was not identified by any one. Accused No.1 Mohammad Sajid Abdul Majid Momin was identified by a Gold Smith as the person, who had come with a Musl and sold ornaments worth ` 62,000/-to him. The witnesses proved the memo of his Test Identification Parade vide Exhibit 24. The witness further stated th August, 2006 he had again conducted Test Identification Parade at Arthur Road Prison where the witnesses are stated to have identified accused No.6 Vijayd who is supposed to have visited house of the complainant wearing tie. He also stated that he did not know about any interaction between the first and t identifying witnesses after the first had identified the suspects, and before second came. In cross examination, this witness as also PWs 5, 7 and 11 st dummies were different in age, heights, complexion and built from the suspects. 10. PW-10 Vinod Divecha is another Special Executive Officer, who conducted Test Identification Parade vide Exhibit 29. Curiously, there is no examination this witness and the prosecutor seems to have simply given up the witnesses for cross examination. PW-8 Ganesh Surve stated that he was panch a Identification Parade held by PW-10 Vinod Divecha in Arthur Road Prison vide Exhibit 29. 11. In addition to the witnesses referred to above, among those examined is, PW-3 Madan Dhediya, a panch at the spot panchanama Exhibit 21 recorded by 19th July, 2005. The situation on the spot observed by this witness corroborates the version of the first informant. 12. PW-4 Shamrao Bhavekar and PW-8 Ganesh Surve are panchas in whose presence three sealed packets containing ornaments were opened by the poli July, 2006. They stated that the panchanama was drawn vide Exhibit 23 and the packets were sealed vide Exhibit 24. PW-4 Shamrao Bhavekar was decla and upon cross examination by the learned APP, he admitted that the complainant and witnesses were shown the ornaments in his presence. 13. PW-12 Vishal Bhati is a Jeweller, who states that accused No.7 Prakash Bane had sold to him two Bangles for ` 12,000/-about 7-8 months before seizure had melted, remade and sold to other customers. 14. PW-13 Dilip Kothari is another Jeweller, who states that he knew PW-14 Sabina Memon, who had sold some ornaments to him in August, 2005 for a 62,000/-. 14. PW-13 Dilip Kothari is another Jeweller, who states that he knew PW-14 Sabina Memon, who had sold some ornaments to him in August, 2005 for a 62,000/-. He stated that on 19th July, 2006 he had produced the ornaments before the police. He also claimed to have identified accused No.1 Sajid Mem Identification Parade held in Thane Central Jail. He claimed that he knew accused No.1 Sajid as husband of Sabina. 15. PW-14 Sabina Memon states that accused No.1 Mohammad Momin was a friend of her husband, who had given her Gold ornaments for which she had sum of ` 62,000/-from PW-13 Dilip Kothari, which amount she had paid to accused No.1 Sajid Momin. She, however, refused to identify the ornaments. 16. PW-16 API Gulab Mahadik states about proclamation of prohibitory orders under Section 37 of the Bombay Police Act (for making out offence punisha Section 135 of the Bombay Police Act). PW-17 PSI Sahebrao Patil received report vide Exhibit 34 and performed panchanama of spot vide Exhibit 21. PW-18 Desai conducted investigation and states about disclosures by accused persons and recoveries made. 17. The learned counsel for appellant Sajid Momin submitted that the learned trial Judge could not at all have even charged the appellant of the offence p under Section 395/397 of the Indian Penal Code, since there was absolutely no evidence of his complicity in the dacoity. Even according to the prosecution, h stated to be present at the time of dacoity. The allegation of his complicity comes from what co-accused allegedly disclosed to police during investigation “the planned the heist” which, apart from being inadmissible, is not even stated in evidence. He submitted that even alleged recovery of gold ornaments at his in 19th July, 2006 was insufficient to brand him as receiver of property involved in theft. For this purpose, he placed reliance on Judgment of Supreme Court i Rajasthan versus Talevar & Anr., reported at 2011(3) Crimes 61 (SC). 18. Though the learned APP sought to make out that accused No.1 Sajid Momin was mastermind behind the dacoity, there is absolutely no evidence of his in in dacoity. For this purpose, he placed reliance on Judgment of Supreme Court i Rajasthan versus Talevar & Anr., reported at 2011(3) Crimes 61 (SC). 18. Though the learned APP sought to make out that accused No.1 Sajid Momin was mastermind behind the dacoity, there is absolutely no evidence of his in in dacoity. As regards recovery of ornaments at his instance on 19th July, 2006 vide Exhibit 51/51A, an year after the incident, or identification of ornaments PWs 5, 7 and 11, vide Exhibit 23, it is difficult to believe that a jeweller purchasing ornaments would keep them intact for almost one year from August, 20 2006. This is, particularly so, since FIR Exhibit 34 does not contain any description of these articles 6A, B, C and article 7 allegedly seized at the instance o No.1 Sajid Momin. These reasons would also hold good for recoveries of ornaments at the instance of other accused persons. In fact, PW-12 Vishal Bha jeweller candidly stated that he melted the bangles purchased, prepared new bangles and sold them to another customer. Therefore, the recovery of two ban instance of appellant Prakash Bane vide Exhibit 28/28A or identification of those bangles article 8 by PWs 5, 7 and 11 is meaningless. As far as seizure of instance of appellant Prakash Patade vide Exhibit 16/16A is concerned, this was not the stolen ring but one allegedly purchased by him from ` 5000/-which share of booty. 19. As for recovery of choppers, there is no special mark which could distinguish them enabling PWs 5, 7 and 11 to identify them as brandished by particular a Mercifully the witnesses were not asked to identify choppers. Therefore, the evidence about recoveries effected at the instance of appellants, apart from b evidence, is grossly inadequate to connect appellants to the crime. Learned counsel for Amit Kumar relied on Judgment of Supreme Court in RAMBI OTHERS Versus STATE OF M.P., reported at 1997 Supreme Court Cases (Cri) 1222 for this purpose. 20. This takes me to the identification of appellants (except Mohammad Momin) by PWs 5, 7 and 11 in Court, corroborated by identification at test identificatio held before Special Executive Officers PW-9 and 10. 20. This takes me to the identification of appellants (except Mohammad Momin) by PWs 5, 7 and 11 in Court, corroborated by identification at test identificatio held before Special Executive Officers PW-9 and 10. The learned counsel for appellants submitted that the evidence ought to have been rejected by the le Judge as test identification parades were held over an year after the incident and also much after the appellants concerned were arrested, affording opportu witnesses to see the appellants while in custody of police. For this purpose, reliance was placed on Judgment of this Court in The State of Maharashtra V Alias Kaka Madanlal Soni & Ors, reported at 1998 ALL MR (Cri) 471 and that of Supreme Court in Rajesh Govind Jagesha Vs. State of Maharashtra,r 2000 ALL MR (Cri) 258. There can be no doubt about the proposition that test identification parades have to be held promptly after arrest of accused persons in holding parades would not only expose the prosecution to charge of tampering but would also put a question mark on ability of witnesses to identify culp long gap. However, as rightly submitted by the learned APP, the question of reliability of identification is in the realm of appreciation of evidence and there cannot be any rule about acceptance/rejection of evidence of identification at parades held within/beyond any fixed time. This is so because, if miscreants in crime, successfully evade arrest for over an year or longer period and they have to be acquitted only because of passage of time, serious crime will go un Therefore, delay in holding parade per se cannot always be fatal. 21. As far as delay in holding parade after arrest of appellants, it may be noticed from the table in para 5 that in cases of each of the appellants, parade has within a month. In case of accused Nos.2, 3 and 4, it was held within eighteen days of their arrest, accused No.5 within 24 days of his arrest and accused N within 21 and 28 days of their arrest, which is not abnormal. Therefore, this ground is not available to appellants. 22. The learned counsel for appellants submitted that PWs 5, 7, 11 as also 9 and 10 admit that dummies and the suspects were not similar in their appea therefore, parades are vitiated. Therefore, this ground is not available to appellants. 22. The learned counsel for appellants submitted that PWs 5, 7, 11 as also 9 and 10 admit that dummies and the suspects were not similar in their appea therefore, parades are vitiated. It was also submitted that witnesses had an opportunity to see the suspects, who had been taken for effecting recoveries be paraded and even at the venues of parades. It was submitted that it was not ensured that first identifying witness would not communicate with the next after l parade site. 23. As rightly pointed out by the learned APP, it would be impossible to find dummies exactly similar in built/complexion etc. with each suspect. As far as turba one of the suspects, since it is not that he was a Sikh, he could have paraded himself without a turban. In any case, PW-11 Mehul Shah could not identify t who had come with a turban. So turban did not mark out the accused. PW-18 Investigating Officer, Shri Dinesh Desai had categorically stated that wheneve each accused for effecting recovery, he had covered up the suspect with a veil. There is no reason to disbelieve his word. As to the holding of parade in a pla a wive mesh partition, this in itself would not be enough to conclude that witnesses outside had chance to note, who was being identified or to know from witness before going in as to whom such witness had identified. Evidence of PWs 9 and 10 shows that they had taken all prescribed precautions while co parades. Had the prosecution cooked up evidence of PW-11 Mehul Shah would not have come up with a discrepant version. Ability to observe and retain differs from person to person. Therefore, there is no reason to discard the evidence about identification of appellant Nos.2 to 7 by PWs 5 and 7, and to a cer even by PW-11. 24. The learned counsel for the appellants also submitted that if the evidence about recoveries and identification of property seized is to be excluded, it impermissible to hold the appellants guilty of serious offences of dacoity only on the basis of identification at test identification parade held after one year of th and subsequent identification in the Court. 24. The learned counsel for the appellants also submitted that if the evidence about recoveries and identification of property seized is to be excluded, it impermissible to hold the appellants guilty of serious offences of dacoity only on the basis of identification at test identification parade held after one year of th and subsequent identification in the Court. I am afraid that this argument cannot be accepted because there can be cases where there may be no identifiabl lost, like currency notes, or there may be no recovery of any property at all. If the arguments were to be accepted, it would imply that in every case where t recovery of property or no identification of property recovered, the accused would have to be acquitted, irrespective of whether their complicity is prove evidence or not. In the instant case, there are eye witnesses, who have identified the miscreants and also have described the role played by each of them. T reason to discard this evidence. In view of this, complicity of the appellants would have to be determined on the basis of their identification by eye witnesses. 25. As already observed, the appellant Sajid Mohammad has not been identified as participant in dacoity. More over, it is nobody's case that he was pre dacoity was committed. The ornaments seized at his instance cannot be connected to those stolen by unimpeachable evidence. In view of this, his complici held as not proved beyond the pale of doubt and he would be entitled to be acquitted. As far as other appellants are concerned, their identification by eye witn to be accepted and therefore, their conviction for the offences punishable under Sections 395 read with Section 397, Section 342 and Section 170 of the Ind Code has to be maintained. However, Section 397 of the Indian Penal Code only provides for aggravated sentence for the offence punishable under Section Indian Penal Code, if committed by using deadly weapons. Therefore, there was no warrant for inflicting a separate sentence for these two offences. To that appeals of remaining appellants would have to be allowed. 26. In the result, Criminal Appeal No.852 of 2009 by Mohammad Sajid Abdul Majid Momin is allowed. His conviction for the offences punishable under Sect 397 and 170 of the Indian Penal Code and sentences imposed upon him for those offences is set aside. To that appeals of remaining appellants would have to be allowed. 26. In the result, Criminal Appeal No.852 of 2009 by Mohammad Sajid Abdul Majid Momin is allowed. His conviction for the offences punishable under Sect 397 and 170 of the Indian Penal Code and sentences imposed upon him for those offences is set aside. He is acquitted of those offences and shall be set a not wanted in any other case. Criminal Appeal Nos.218 of 2009, 366 of 2009, 257 of 2009 and 226 of 2010 are partly allowed. Conviction of the appellants is one for the offence punishable under Section 395 read with Section 397, 170 and 342 of the Indian Penal Code. The sentence of R.I.for seven years with 5000/-or in default S.I. for one year separately imposed for the offence punishable under Section 395 of the Indian Penal Code is set aside. The remaining se including sentence of R.I.for seven years with a fine of ` 5000/-or in default S.I. for one year for the offence punishable under Section 397 of the Indian Pena maintained, since the sentence imposed for the offence punishable under Section 397 of the Indian Penal Code is the minimum prescribed for the offence deadly weapons like choppers were used to put the victim in fear of death or grievous hurt.