JUDGMENT :- The appellant herein is convicted for offence punishable under Section 342 r/w. Section 34 of the Indian Penal Code, Section 451 r/w. Section 34 of the Indian Penal Code, under Section 392 r/w. Section 397 also read with Section 34 of the Indian Penal Code and is sentenced to suffer R.I. for a period of 7 years in Sessions Case No. 78 of 2008 passed by the Additional sessions Judge, City Civil and Sessions Court, Greater Bombay vide Judgment and Order dated 13th August, 2008. 2. Such of the facts which are necessary for the decision of this appeal are as follows: (i) One Mahendra Mutha was running a metal industry in the name and style as M/s. Apollo Metal Industries situated at Room No. 16, second floor, Building-9, Girgaon, Mumbai. On 23rdApril, 2007 Mahendra opened his shop at 9.30 a.m. He asked his servant to go to the go-down of the shop. He had requested his friend Anil Lodha to lend him Rs. 3 Lakhs. One Mularam Chaudhary working with Anil Lodha had fetched the amount of Rs. 3 Lakhs and handed it over to Mahendra Mutha at his office. At that time, his cousin Vimal Mutha and one person from transport company were present. Thereafter, Vimal Mutha and another person left the office. (ii) On the same day at about 7.45 p.m. Mahendra was alone in the office. Four unknown persons entered into the office and shut the door from inside. One of those four persons asked him as to where he had kept the amount. Another person attempted to strangulate him and pinned him on the ground and brandished with chopper. The third person who' was holding a pistol closed the mouth and eyes of Mahendra with a cello-tape. The fourth person had cut the wire of telephone and tied the hands and legs of Mahendra with the telephone wire. Four persons then withdrew the amount of Rs. 3 Lakhs, which was kept in the drawer of the table. They snatched two golden rings and mobile cell phone from the person of the complainant and fled from his office. (iii) Mahendra Mutha then crawled towards door and opened the door of his office. The person from the neighbouring office untied Mahendra and removed the cell tape from his mouth and eyes. Mahendra narrated the entire incident to that person and called upon his brother telephonically. (iii) Mahendra Mutha then crawled towards door and opened the door of his office. The person from the neighbouring office untied Mahendra and removed the cell tape from his mouth and eyes. Mahendra narrated the entire incident to that person and called upon his brother telephonically. On arrival of his brother, he went to the police station and lodged a report. On the basis of the said report, Crime No. 65 of 2007 was registered at Y.P. Road Police Station, Mumbai for offence punishable under Section 451, 342, 392 r/w. 397 and also r/w. Section 34 of the Indian Penal Code against unknown persons. (iv) The investigation was set in motion. The police had kept track on the location of the cell phone. It had transpired in the course of investigation that present appellant had activated the cell phone of the complainant and was using the said cell phone during 20/9/2007 to 25/9/2007. It was revealed that he resides at Dr. Mahesh Road, Darga Building, Dongari, Mumbai. It was further revealed that the accused Mohd. Altaf i.e. the present appellant was in judicial custody as he was arrested in Crime No. 35 of 2007. The police had then obtained warrant from the concerned Court and had arrested him on 21/11/2007 in the present case. (v) A memorandum of the accused was recorded on 3/12/2007. The cell phone was seized at the instance of the appellant under Section 27 of the Indian Evidence Act. While in police custody the accused/appellant had disclosed to the police that on a tip given by Viky Jain he and his friend Vijay Chaugule and Rajesh had committed the said offence. The other accused were absconding and could not be traced till today. The identification was held on 19/12/2007 in Arthur Road Prison. The complainant Mahendra Mutha had identified the present appellant. On 15/1 /2008 the complainant was called to the police station to identify his cell phone. He had identified it accordingly and thereafter, it was handed over to him. (vi) After completion of investigation charge-sheet was filed on 16th January, 2008. The case was committed to the Court of Sessions and registered as Sessions Case No. 78 of 2008. The prosecution examined 9 witnesses to bring home the guilt to the accused. 3. He had identified it accordingly and thereafter, it was handed over to him. (vi) After completion of investigation charge-sheet was filed on 16th January, 2008. The case was committed to the Court of Sessions and registered as Sessions Case No. 78 of 2008. The prosecution examined 9 witnesses to bring home the guilt to the accused. 3. P.W. 1 Mahendra Mutha who is the complainant has deposed before the Court that on 23rd April, 2007 four persons had entered into his office with criminal intention. At that time, all his employees had gone to the godown, as the goods were to be dispatched. Out of four persons, the present appellant had allegedly made the complainant sit under the table and had sealed his lips and eyes with adhesive tape and tied his hands and legs with telephone wire. Out of remaining persons one had brandished a revolver and the other had brandished the chopper. They fled from the office after taking away the cash of Rs. 3 Lakhs,2 golden rings and mobile handset. The complainant had proved the contents of the FIR which is marked as Exh. 8. He has further deposed that he had learnt about name of the accused who had sealed his lips with adhesive tape after he was called in jail for test identification parade i.e. on 19/12/2007. He has further deposed that he had gone to the Arthur Road Jail alongwith two panchas and one Special Executive Officer. There, seven persons were standing in a queue. The present appellant was standing at Sr. No.5 and the complainant claims to have identified him. The complainant had identified the present appellant in the court. It is elicited in the cross-examination that at the test identification parade out of 7 people, some of them were tall, some were short, some were slim and some were fat. He has admitted that they all looked different. He has further admitted that after the incident the police had shown him several photographs, but none of them was amongst the persons, who had committed offence. He has further stated that the accused had come to his office to commit robbery. 4. P.W. 2 Vinayak Pilankar is the officer who conducted the test identification parade. He has further admitted that after the incident the police had shown him several photographs, but none of them was amongst the persons, who had committed offence. He has further stated that the accused had come to his office to commit robbery. 4. P.W. 2 Vinayak Pilankar is the officer who conducted the test identification parade. He has deposed before the Court that on 19/12/2007 he was called at Y.P. Road Police Station by PSI Gaikwad who requested him to conduct test identification parade at Arther Road Jail on the same day. He has further deposed that the complaint had identified the appellant who was standing in between the dummies towards right eye as the person who had pressed his mouth and threatened with a chopper and closed his north with cello-tape. He has categorically stated in the cross-examination that in the memorandum he has not recorded the details regarding similarity of each dummy with the accused. He had not mentioned the description of the accused in the memorandum. He had not asked the witness whether the police had shown him the photograph of the accused prior to conducting of test identification period. 5. P.W. 4 Mularam Chaudhary is the employee of Anil Lodha. He has deposed before the Court that on 23rd April, 2004 he had been to Appollo Metal and had handed over the cash of Rs. 3 Lakhs to Mahendrabhai i.e. the complainant. He has admitted in the cross-examination that he had not obtained any acknowledgment in writing from the complainant as a receipt towards the cash of Rs. 3 Lakhs. 6. P.W.5 Sawalchand Parmar has acted as panch for spot panchanama which is at Exh. 14. He has deposed that on 23rd April, 2007 at about 9.30 to 10 a.m. when he went to office of Appollo Metal, the complainant had showed the pistol, cel1 tape and the wire with which he was died. He has stated in the cross-examination that the shop of Bhimrao Patel and Appollo Metal are adjoining each other: 7. P.W. 6 Rohidas Sarjine has acted as panch for recovery panchanama. He has deposed before the court that the present appellant had led them to a building. His wife opened the door and then, he had shown a cell phone and a photo copy of one license. P.W. 6 Rohidas Sarjine has acted as panch for recovery panchanama. He has deposed before the court that the present appellant had led them to a building. His wife opened the door and then, he had shown a cell phone and a photo copy of one license. Hence, he has proved the recovery of the cell phone at the hands of the present appellant. 8. P.W.7 Jagannath Gaikwad is the PSI of V.P. Road Police Station who had supervised the panchanama of seizure of cell phone. 9. P.W. 9 Vijaykant Hole was attached with D.B. Marg Police Station as PI. On 23rd April, 2007 at about 8.00 to 8.10 p.m. the complainant Mahendra Mutha had been to police station and lodged the report. He has set the investigation into motion. On 27th October, 2007 he received a report from Airtel Mobile company that the stolen mobile was activated. The report to that effect is marked at Exh. 22. Upon enquiry it was learnt that the said number was activated by the present appellant who is resident of Mahesh Road, Darga Building, Dongri, Mumbai. It was further revealed that it was a incorrect address. P.W. 9 then learnt that the accused was arrested in another crime and therefore, he obtained transfer order and arrested the applicant on 21st November, 2007. 10. Learned Counsel for the appellant has submitted that in the present case the conviction under Section 392 r/w. Section 397 is unwarranted as right from the inception there were four persons and therefore, it would not be dacoity. Section 397 of the Indian Penal Code contemplates:- "If, at the time committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." In the present case, it would definitely not be dacoity and therefore, the submission of the learned Counsel that there were Jess than 5 persons and therefore, Section 392 r/w. Section 397 of the Indian Penal Code is unwarranted, cannot be taken into consideration. The learned Counsel for the appellant submits that the only incriminating circumstance against the present appellant is that there is a recovery of the cell-phone at the instance of the appellant. The learned Counsel for the appellant submits that the only incriminating circumstance against the present appellant is that there is a recovery of the cell-phone at the instance of the appellant. The learned APP submits that this evidence is sufficient to hold that the appellant had committed an offence of criminal tress-pass into the office of the complainant on 23rd April, 2007 and had committed robbery. Hence, according to the learned APP, the conviction and the sentence is justified. 11. P.W. 2 Special Executive Officer has categorically admitted that he had not recorded the description of the dummies and the accused put up for test identification parade. This has to be read in consonance with the evidence of the complainant who has specifically stated that the persons put up for test identification parade alongwith the accused were of different constitution and different features. He has categorically admitted in the cross-examination that the dummies put up for test identification parade had no similarities with the accused. The learned Counsel for the appellant therefore, submits that the evidence of the test identification parade cannot be taken into consideration for convicting the present appellant. The evidence of test identification parade is a corroborative evidence. The appellant was identified by the complainant in the court and the said identification would be a substantive piece of evidence. At this stage, learned Counsel for the appellant submits that the appellant was arrested after 6 months of the incident and it cannot be believed that the complainant would remember the features of the accused in order to identify him. In fact the complainant had suffered a trauma of fear at the hands of the accused/appellant and therefore, it is quite likely that he was able to identify him. The memory differs from person to person and therefore, it cannot be held that the complainant could not identify the present appellant. 12. It is a matter of record that the other three co-accused are absconding till today. Supplementary charge-sheet has not been filed against him and only the present appellant/accused was put to trial. The complainant has not proved that the appellant caused any injury to him in the course of committing theft. The allegations against the appellant are that he had sealed the lips of the complainant with an adhesive tape. There is recovery of cell-phone at the instance of the accused is rather an incriminating circumstance. The complainant has not proved that the appellant caused any injury to him in the course of committing theft. The allegations against the appellant are that he had sealed the lips of the complainant with an adhesive tape. There is recovery of cell-phone at the instance of the accused is rather an incriminating circumstance. The learned Counsel for the appellant submits that the possibility that the appellant was a receiver of the stolen property which he must have purchased unknowingly cannot be ruled out. The learned APP submits that in the course of cross-examining the witness, no suggestion was given to substantiate the contention that the appellant could be an innocent receiver of stolen property. 13. Taking into consideration the rival submissions, conviction of the appellant for offence punishable under Section 392 r/w. 397 of the Indian Penal Code deserves to be quashed and set aside. 14. The conviction of the appellant for offence punishable under Section 342 r/w. Section 34 and Section 451 r/w. Section 34 of the Indian Penal Code is upheld. 15. The appellant has undergone the sentence for the offence punishable under Section 342 r/w Section 34 and Section 451 r/ w. Section 34 of the Indian Penal Code. 16. He is convicted for offence punishable under Section 392 r/w. Section 34. He has undergone 5 years and 8 months in jail. Hence he is sentenced to the period already undergone. 17. He be set at liberty, if not required in any other case. 18. The appeal is partly allowed and disposed of accordingly. 19. Office to communicate the order to the appellant through the Superintendent of Jail in which the appellant is lodged. 20. Writ be issued. 21. This Court record appreciation for the efforts taken by Ms. Nasreen S.K. Ayubi, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellant. The legal fees to be paid to him by the High Court Legal Services Committee are quantified at Rs. 2000/-. The said fees be paid to Advocate Ms. Nasreen Ayubi within three months from today. Appeal partly allowed.