JUDGMENT:- Original accused No.2 - Sajid Iqbal Shaikh and No.3 - Saddam Shaffik Shaikh have preferred Criminal Appeal No. 62 of 2013, while appellant - original accused No. 1 Sanjay Ramdas Pawar has preferred Criminal Appeal No. 81 of 2013 against the Judgment and order dated 16-01-2013, passed by the learned Additional Sessions Judge-5, Ahmednagar, in Sessions Case No. 253 of 2012, convicting the appellants for the offence punishable under Section 392 of the Indian Penal Code (hereinafter referred to as "IPC" for short) and sentencing them to suffer rigorous imprisonment for five years each and to pay fine of Rs. 3000/- (Rupees Three Thousand) each, in default of payment of fine to suffer rigorous imprisonment for six months each. 2. Briefly the case of the prosecution can be stated as follows: On 05-05-2012 at about 5.00 p.m. Prashant Rameshchandra Gaikwad, the complainant, has started his journey from Pusad along with his wife and children towards Pune in Fortuner Jeep bearing registration No. MH-12-FU/8433. In the midnight, at about 1.30 to 2.00 a.m. the complainant stationed his vehicle by the side of the road, near one petrol pump, in the vicinity of village Chas, and by locking it he along with his family were taking rest, at about 3.00 to 4.00 a.m. one person knocked the glass of the vehicle, due to which complainant woke up and found one white colour Tata-sumo near his vehicle. The person, who had knocked door, asked the complainant that he was called by his Boss, who was in Tata-sumo, which was parked nearby. At that time, another person came there and asked as to where he was proceeding. In the meantime, said person opened the door of Fortuner vehicle of the complainant and entered inside. He pushed Prashant aside the seat of driver side. In the meanwhile, second person entered in Fortuner vehicle and occupied back side seat. Thereafter, third person came and entered the vehicle from its left side front door and occupied the seat next to the driver by pushing the complainant's wife aside, who was occupying the said seat. He pushed Prashant aside the seat of driver side. In the meanwhile, second person entered in Fortuner vehicle and occupied back side seat. Thereafter, third person came and entered the vehicle from its left side front door and occupied the seat next to the driver by pushing the complainant's wife aside, who was occupying the said seat. After said three persons occupied the vehicle of the complainant, the person, who was sitting on the driver seat started the vehicle and proceeded towards Pune side, while person on the rear side extended threat to the complainant saying that they would cause his death and of his wife and had said ^^pqi cSBks ugh rks [kre dj nqaxk-^^ At the same time, the person, who was sitting on the rear side, forcibly removed gold ring and gold chain, which was on the person of Prashant. At the same time, the person, who was. occupying left side front seat in the vehicle, forcibly removed gold rings, a mangalsutra, bangles, tops from person of wife of the complainant, namely, Sharmila. He also removed ear rings from person of the complainant's daughter Riya. The vehicle was thereafter taken towards Ahmednagar side on bye-pass road. The complainant was enquired by the person, who was driving the vehicle, if he was carrying any amount, and directed him to part away with money, else he will take away complainant's daughter with him. Upon which, Prashant took out his wallet and handed it over to said person, which was containing Rs. 1200/- and xerox copy of his driving licence. The person, who was driving the vehicle, then enquired with Prashant as to how much distance the vehicle would run, he told him that it would go up to 84 k.m.. Thus, the vehicle was taken in the vicinity of village Nepti. On stopping the vehicle, all culprits directed a Prashant, his wife and daughter to get down from the vehicle saying that they should go the a Police Station and lodge report and the Police thereafter will search for their vehicle and would give back their vehicle to them, saying so, culprits went away with complainant's vehicle - Fortuner. 3. On stopping the vehicle, all culprits directed a Prashant, his wife and daughter to get down from the vehicle saying that they should go the a Police Station and lodge report and the Police thereafter will search for their vehicle and would give back their vehicle to them, saying so, culprits went away with complainant's vehicle - Fortuner. 3. The complainant along with his wife and minor daughter, thereafter, walked up to nearby township and reached Nagar Taluka Police Station, Ahmednagar, where Prashant qaikwad lodged his report, stating therein the facts involving incident, giving details of articles, which were robbed. 4. On the basis of report as above, an offence came to be registered vide Crime No. I-71 of 2012 for the offence punishable under section 392 read with Section 34 of the Indian Penal Code. Said Crime was investigated by Mr. Shankar Narwade, PSI, partly, and thereafter by Mr. Rahul Khade, Deputy Superintendent of Police. 5. During the course of investigation, on 10-05-2012, Mr. Rahul Khade, Deputy Superintendent of Police, received information about movement of Fortuner vehicle having no registration plate on it, proceeding towards Mohata Devi Temple. Based on such information, along with two independent witnesses, said Officer arranged a trap and intercepted one Fortuner vehicle, which was found occupied by four persons. Said Investigation Officer apprehended three persons amongst them, however, one succeeded in running from the spot. On apprehension, the appellants disclosed their names, their personal search was obtained and gold ornaments came to be recovered from their person and seized under panchnama. At the same time, registration number plate of Fortuner vehicle was found removed and kept inside the vehicle. Said vehicle also came to be seized under said panchnama. 6. After effecting arrest of appellants, on 10-05-2012, they were interrogated by Mr. Narwade, PSI, when appellant Sanjay Pawar made disclosure statement that two bags are concealed by him in the house of Mohan Dahiphale of village Mohata, which was reduced into writing. In pursuance of the said statement of appellant Sanjay, Investigating Officer recovered two bags, which were came to be seized under panchnama. During the course of investigation, on 02-06-2012, fourth accused was arrested by Shrigonda Police and he was transferred in the present crime, and thereafter, supplementary statements of the witnesses were recorded. In pursuance of the said statement of appellant Sanjay, Investigating Officer recovered two bags, which were came to be seized under panchnama. During the course of investigation, on 02-06-2012, fourth accused was arrested by Shrigonda Police and he was transferred in the present crime, and thereafter, supplementary statements of the witnesses were recorded. Prior to said arrest, one more accused was arrested and accordingly, offence punishable under Section 395 of the Indian Penal Code came to be added in the present Crime. During the course of investigation, Tata sumo was located by the Police within the jurisdiction of Beed Rural Police Station bearing registration No. MH-16/AB-169. It further revealed during the course of investigation that one report was lodged with reference to theft of above vehicle with Shirur Police Station, by one Imptaz Abbas Shaikh. Accordingly, said vehicle, after seizure in present crime, was given in the custody of Shirur Police Station. Gold ornaments seized from the person of the appellants were returned back to the complainant on Supurtnama. During the course of investigation, identification parade of appellants was held by the Special Executive Magistrate on 25-07-2012, wherein all appellants came to be identified by the complainant. After completion of investigation, charge-sheet came to be filed in the court of learned Judicial Magistrate First Class, Ahmednagar. In due course of time, the case came to be committed to the Court of Session for trial. Charge was levelled against appellants, co-accused and absconding accused Sohya for the offence punishable under Section 395 of the Indian Penal Code, to which they denied and claimed to be tried. Defence of the accused is of total denial and false implication. On considering the evidence, learned trial Judge convicted the appellants as afore stated and acquitted co-accused. 7. Heard learned counsel Mr. S.S. Kazi for the appellants in Criminal Appeal No. 62 of 2013, while learned counsel Mr. Zafar Pathan, for appellant in Criminal Appeal No. 81 of 2013 and Mr. Ingole, learned Assistant Public Prosecutor for the State. In order to effectively evaluating the submissions advanced by the learned counsel for both sides, I have scrutinized evidence on record with their assistance. 8. Zafar Pathan, for appellant in Criminal Appeal No. 81 of 2013 and Mr. Ingole, learned Assistant Public Prosecutor for the State. In order to effectively evaluating the submissions advanced by the learned counsel for both sides, I have scrutinized evidence on record with their assistance. 8. The learned counsel for appellants had stressed that there is no evidence to establish the fact of alleged recovery of gold ornaments from the person of appellants as there is no independent evidence corroborating the evidence of P.W.10-Rahul Khade, Dy.S.P., Investigating Officer. Another point canvassed on behalf of the appellants is that P. W. 4 - Dadasaheb Raghunath Gite, has held identification parade contrary to the guidelines issued by the Hon'ble High Court, as dummies were not selected considering the physical appearance of the suspects. It is also pointed out that in one test identification parade three suspects were made to stand. It is also contended that even though the case of the prosecution is relied on the point of recovery of ornaments from the person of appellants, in absence of any other convincing evidence on record, the appellants at the most can be held guilty for the offence punishable under Section 411 of the IPC. It is contended that, in that view of the matter, the appellants, who are otherwise of young age and since there is nothing on record to establish the charge framed against them and as the appellants have no criminal antecedents, they be released by convicting them for the period undergone. 9. Learned Assistant Public Prosecutor has contended that there is convincing evidence establishing the complexity of the appellants in the present case. It is also contended that nothing is brought on record to disbelieve the versions of complainant Prashant and his wife. It is also contended that the fact of recovery of ornaments from the possession of appellants established their involvement in the present crime. 10. In the backdrop of above submissions, I have scrutinized evidence of P.W.3 - Prashant Gaikwad, complainant, who has stated that on 05-05-2012 he started his journey by his vehicle Fortuner bearing registration No. MH-12-FU/8433 from Pusad to Pune at 5.00 p.m. via Aurangabad and Nagar and in the midnight at around 1.30 to 2.00 a.m. he stationed his vehicle by the side of road at Petrol pump in the vicinity of village Chas. While he along with his wife and daughter were taking rest, at about 3.00 to 4.00 a.m. one person knocked glass of window, due to which complainant woke-up and found that one white Tata sumo was parked near his vehicle. The person, who had knocked the door, informed the complainant that his Boss was calling him, who was sitting in the Tata sumo, saying, ^^lkgsc cqyk jgs gS^^ , by that time one more person arrived, who enquired the complainant asking ^^fd/kj tk jgs gS^^ , before complainant could ask him about his identity, said person immediately opened the door and entered the complainant's vehicle and had pushed the complainant from driver's seat and occupied the same. At the same time, second person, who had knocked the door, initially entered in the vehicle and occupying rear seat, at the same time, third person entered the vehicle from the left side front door of the vehicle and occupied the seat next to the driver, by pushing the complainant's wife aside, who was occupied the said seat. At the same time, the complainant was pushed in the rear side of the vehicle, and the person, who was occupying the driver seat started vehicle and proceeded towards Pune side. 11. It has further come in the evidence that, the person, who was in the rear portion of the vehicle, extended threat to the complainant-saying that ^^pqi cSBks ugh rks [kre dj nqaxk^^ and forcibly removed gold rings and gold chain, which were on the person of the complainant. Simultaneously, the person, who was sitting on the left side front seat, next to the complainant's wife, removed her six gold rings, a mangalsutra, bangles, ear rings and, also ear rings of her daughter - Riya. The vehicle Fortuner was, thereafter, taken on bye-pass road towards Nagar side, and the driver of the vehicle enquired the complainant to remove the amount whatsoever he was possessing, extending threatened that otherwise he would take his daughter with him. Upon which, the complainant removed his wallet having Rs. 1200/- and xerox copy of his driving licence in it. The driver of the vehicle thereafter enquired the complainant as to how much distance the vehicle would travel. Upon which, the complainant removed his wallet having Rs. 1200/- and xerox copy of his driving licence in it. The driver of the vehicle thereafter enquired the complainant as to how much distance the vehicle would travel. The complainant informed that it would proceed for about 84 K.M. The driver, thus, took the vehicle towards village Nepti and dropped the complainant, his wife and daughter on the road, informing that they should lodge report with Police and Police will take search of their vehicle and thereafter they would get their vehicle back and went away towards Nagar side. 12. The complainant, his wife and daughter then walked upto Nagar Taluka Police Station and lodged his report stating therein robbery in respect of three gold rings, one gold chain weighing four tolas, one gold bangle weighing five tolas, six gold rings weighing two and half tolas, a mangalsutra weighing four tolas, two pairs of ear tops weighing half tola each, cash amount of Rs. 1200/- and Fortuner vehicle of complainant bearing registration No. MH-12-FU/8433 and his three mobiles bearing Nos. 9764537111, 8275287493 and 8275287494. In the report, the complainant gave physical description of the accused stating them to be aged of 25 to 30 years, wearing pant and shirt and talking in Hindi language. He is further reported that he has seen the culprits during the incident, and that, he can identify them, if shown to him. He has proved his report on record at Exhibit 27. 13. He has further stated that after arrest of appellants, he was informed about recovery of stolen articles from their possession and of his vehicle Fortuner, which he identified to be the same, owned by him. Thereafter, his supplementary statement was recorded. 14. Prashant, the complainant, has further stated that in the identification parade, held on 25-07-2012, he identified the appellants by touching their bodies by his hands. In the cross-examination of complainant, certain questions are put to him and certain suggestions are given to him, like, he has not stated in his report that the persons four in number entered inside the jeep. It appears that, the complainant is further suggested that he had not stated so in his report, to which he replied that as he was frightened, so he has not stated so. It appears that, the complainant is further suggested that he had not stated so in his report, to which he replied that as he was frightened, so he has not stated so. However, the suggestion put to this witness do not appear to be relevant in the light of the prosecution's case as well evidence of the complainant, as he no where stated that four persons entered in his vehicle and robbed him. According to him, three persons only entered in the vehicle, while two others were in the Tata sumo, which was parked next to his vehicle Fortuner. In his further cross- examination, certain questions are put to the complainant with reference to weight of gold ornaments i.e. gold rings, bangles, ear rings, a mangalsutra and suggested that the weight stated by complainant differs with weight mentioned in the seizure panchnama of those ornaments, however, complainant had admitted that he was unable to say the exact weight of the gold ornaments and he was not aware about the weights mentioned in the panchnama. It is noted that there is no material discrepancy with reference to the weight of ornaments robbed, recovered and seized under the panchnama. In fact, it has come in the cross-examination that the complainant could see the faces of the appellants in the tube light. This admission found corroborated by earlier evidence of the complainant, when he has stated that, while proceeding towards Pune at about 1.00 to 2.00 p.m. he stationed his vehicle by the side of the road at petrol pump, where there was sufficient light available and while he along with his family members being wife and daughter were taking rest in their vehicle Fortuner, one person came and knocked the glass of the vehicle and that is how incident proceeded. Though complainant appears to have admitted that he has not given physical description of the appellants in his supplementary statement and he appears to have admitted that the appellants were unknown to him. These admissions are no way fatal to the prosecution case. 15. Though complainant appears to have admitted that he has not given physical description of the appellants in his supplementary statement and he appears to have admitted that the appellants were unknown to him. These admissions are no way fatal to the prosecution case. 15. Further cross-examination of the complainant is on the point of test identification parade, in which he has identified the appellants, however, said evidence does not inspire confidence in view of the evidence of P.W.4-Dadasaheb Gite, Special Executive Magistrate, who has conducted test identification parade, since it is noted that no care was taken by said Officer to see that the dummies selected by him, amongst whom suspects were made to stand were not having similar physical characters and since Special Executive Magistrate has also admitted that there was difference in the age of dummies and there was no similarity amongst them and suspects. The evidence of identification parade in this back ground is thus highly doubtful in nature. It also appears that Special Executive Magistrate before holding test identification parade has not confirmed with identifying witnesses, if they had any opportunity to see suspects earlier, moreover, three suspects were made to stand amongst 21 dummies in one parade. While, according to the guidelines in Chapter I of the Criminal Manual, it is desirable to have six dummies for identification of one suspects and at the most two suspects be made to stand, in one test identification parade amongst 10 to 12 suspects. The identification parade held by P. W.4 – Dadasaheb Gite, reveals that three suspects were made to stand, amongst 21 dummies. In that view of the matter, I am not inclined to rely upon said evidence so far as it relates to identification parade, since it is not convincing for above reasons. In that view of the matter, rest of the cross-examination need no consideration as it revolves upon test identification parade. In the circumstances, it is material to note that except for some admissions, as above, nothing material is elicited in the cross-examination of the complainant. There is no reason for the complainant to falsely implicate the appellants, nor suggestion to that effect is given, on the contrary, his evidence is found fully corroborated by evidence of his wife P. W.5 - Sharmila. 16. There is no reason for the complainant to falsely implicate the appellants, nor suggestion to that effect is given, on the contrary, his evidence is found fully corroborated by evidence of his wife P. W.5 - Sharmila. 16. P. W.5 Sharmila has stated that on 05-05-2012, she along with complainant and their daughter were proceeded from Pusad towards Pune in their Fortuner vehicle bearing No MH-12-FU/8433, which was driven by the complainant via Aurangabad and Ahmednagar. She further stated that in the midnight at 1.30 to 2.00 a.m. they stationed their vehicle near Ahmednagar at petrol pump, where there was sufficient source of light available and by locking the vehicle they all were taking rest inside. She has stated at about 3.00 to 4.00 a.m. one person came near their Fortuner vehicle and knocked the door of the car, due to that they woke up and saw that one Tata-sumo of white colour was parked next to their vehicle. The person, who knocked the door, informed the complainant that his boss, who was sitting in the Tata sumo had called him saying ^^lkgsc cqyk jgs gS^^ . When complainant rolled down glass of his side window, another person arrived and enquired the complainant as to where he was proceeding, to which complainant had asked his identity, at the same time, said person opened the door from inside by his hand and secured entry in the vehicle and by pushing the complainant occupied driver's seat. The person, who had knocked the door opened the rear door and entered inside and occupied the back seat. She has further stated that in the meantime third person secured entrance in the vehicle from its front left side door and occupied the seat next to the driver seat, where she was sitting on pushing her aside of that seat. 17. P.W.5-Sharmila has further stated that the person on entering their vehicle threatened saying that they would cause their death, saying, ^^[kkeks”k cSBks] [kRe dj naqxk^^ . She has further stated that, the person, who was sitting on the driver's seat pushed the complainant on the rear side of the vehicle and took the vehicle towards Ahmednagar bye-pass road. She has further corroborated the complainant on the prosecution case of occupants, snatching the gold chain gold rings bangles and two pairs of ear rings, which belongs to complainant, herself and their daughter. She has further corroborated the complainant on the prosecution case of occupants, snatching the gold chain gold rings bangles and two pairs of ear rings, which belongs to complainant, herself and their daughter. She has further stated that, the person, who was sitting on the driver seat, asked the complainant as to how much amount he was possessing and threatened him to part away with it, else they would forcibly take away their daughter. She further corroborated about the complainant's wallet containing of Rs. 1200/- and xerox copy of his driving licence therein. She further stated that the accused thus took their Fortuner vehicle towards village Nepti and dropped the complainant, herself and their daughter in lonely place and went away with their vehicle saying that, report should be lodged and the Police would search for their vehicle and handover it to them. 18. According to her evidence, she along with her husband, thereafter walked upto Nagar Taluka Police Station, Ahmednagar, where Prashant Gaikwad, the complainant, lodged his report. P.W.5-Sharmila further deposed about the articles and ornaments, which were robbed i.e. bags, one gold bangle, one gold mangalsutra, two pairs of gold tops, seven gold rings, one pair of gold tops of her daughter, one gold chain of her husband, two gold rings having stones, one twisted gold ring and one another gold ring, three mobile handsets of Nokia company, having mobile Nos. 9764537111, 8275287493 and 8275287494 and Fortuner jeep bearing No. MH-12/FU-8433. P.W.5-Sharmila further deposed of physical description of the accused, which according to her, mere in the age group between 20 to 25 years, wearing shirts and pants and talking in Hindi language. She has specifically stated that she can identify them if shown to her. Sharmila, has accordingly identified appellant Sanjay Pawar, as a person, who had occupied the driver's seat, appellant Sajed, as a person, who occupied the seat next to the driver side, where Sharmila was sitting, and appellant-Saddam, as a person, who occupied rear side seat of the vehicle before the Court. She has further stated that after appellants were apprehended, immediately, gold articles and vehicle were recovered by the Police. The said fact was informed to her and thereafter her supplementary statement was recorded. She has also produced before the trial Court gold ornaments, which were given in the custody of her husband on Supurtnama. She has further stated that after appellants were apprehended, immediately, gold articles and vehicle were recovered by the Police. The said fact was informed to her and thereafter her supplementary statement was recorded. She has also produced before the trial Court gold ornaments, which were given in the custody of her husband on Supurtnama. Her evidence further reveals that in addition to three persons, who had occupied their vehicle, there were two persons present in Tata sumo. 19. In her cross-examination, certain questions are put to Sharmila with reference to design on her bangles and other gold ornaments, to which she has admitted that she has not mentioned such minute description of the gold ornaments before the police. However, said admission does not appear to be material in view of the fact that one is not expected to have such minute details like design on the gold ornaments, even if those are used daily by such person. Much of the cross-examination appears to be on this point only. It is noted that again some suggestions are put to this witness, when she admitted that she has not stated in her statement that five persons robbed. Said suggestion in fact appears to be irrelevant, in view of the fact that, in her evidence she nowhere stated that five persons have robbed, but what is deposed by her is that, out of five, two persons were occupants of Tata sumo, which was parked next to their Fortuner vehicle, while three persons forcibly secured entry in their vehicle. On the contrary, Sharmila has corroborated the complainants evidence on the point of availability of source of light on the spot of incident. Even otherwise, above evidence about availability of tube light on the spot as deposed by Prashant as well as his wife Sharmila appears to be truthful considering the fact that, on way to Pune, for having rest in the midnight, they made their vehicle stationed by the side of the road on petrol pump, normally, where source of light is available. Rest of the cross-examination of Sharmila is with reference to identification parade, however, admittedly she had not attended the same. In the circumstances, I find that nothing material is brought on record to discard the version of Sharmila. 20. Rest of the cross-examination of Sharmila is with reference to identification parade, however, admittedly she had not attended the same. In the circumstances, I find that nothing material is brought on record to discard the version of Sharmila. 20. To establish involvement of the appellant No. 1 Sanjay Pawar, prosecution has also relied on the evidence of P. W.6 - Vijay Kale, who has stated that on 11-05-2012, he was called by the police in Nagar Taluka Police Station to act as panch, when appellant Sanjay Pawar was in police custody and made statement to discover the bags, which were concealed by him in the house of his friend Mohan Vithoba Dahiphale of village Mohata, which was reduced into writing as per Exhibit 37. As per his deposition, he along with Police and another panch Shekhar Pawar were led by the Government vehicle to village Mohata and two bags were recovered by the Police at the instance of said appellant, which were found containing clothes and other utensils, which came to be seized under the panchnama Exhibit 38. At the time of trial, P.W.6-Vijay Kale, identified the appellant-Sanjay to be the same person at whose instance bags are seized. In the cross-examination of this witness nothing material is brought on record. On the contrary, his evidence substantiates the prosecution case, when it has come on record that, on some utensils of stainless steel, which were found in the black bag, name of Prashant Gaikwad was engraved upon it. Such name was engraved on two number of steel pots. Such recovery, therefore, directly connects ownership of recovered articles to be that of complainant Prashant Gaikwad. Though, it is suggested there may be another person named Prashant Gaikwad, having considering with the fact involved in the appeal, said suggestion though admitted by this witness, does not appear to be fatal to the prosecution case, in any way. 21. P.W.6-Vijay Kale has specifically denied that the Police had shown accused Sanjay to him. He identified the accused at the time of trial and denied the suggestion that nothing was seized at the instance of said appellant. In view of his evidence, as discussed above, there is nothing to doubt recovery at the instance of appellant/original accused No.1-Sanjay. 21. P.W.6-Vijay Kale has specifically denied that the Police had shown accused Sanjay to him. He identified the accused at the time of trial and denied the suggestion that nothing was seized at the instance of said appellant. In view of his evidence, as discussed above, there is nothing to doubt recovery at the instance of appellant/original accused No.1-Sanjay. Evidence of said independent witness is found corroborated by evidence of P.W. 7 Shankar Narayan Narwade, P.S.I. who has partly investigated the crime, when he has stated that on 10-05-2012, P.W.10 - Rahul Khade, Dy.S.P. had apprehended and effected arrest of appellants and had seized from their possession gold ornaments and Fortuner vehicle on 10-05-2012, on the same day, he effected their arrest. He further deposed that during the course of interrogation appellant Sanjay Pawar made disclosure about his concealing bags in the house of his friend Mohan Vithoba Dahiphale of village Mohata, which was reduced into writing as per Exhibit 37 and in the presence of independent witness said appellant produced two bags from the house of his friend, as above, which came to be seized under panchnama Exhibit 38, which were containing household articles, clothes, and utensils. As such, above evidence corroborate the evidence of independent panch witness P. W6 Vijay Kale. In the light of above evidence, I find no substance in the submissions made by the learned counsel on behalf of appellants that the prosecution has not examined second panch witness on Exhibits 37 and 38. 22. In his cross-examination, certain questions were put to this witness that, during the course of investigation, he has not obtained the documents in respect of ownership of house, where from bags were seized at the instance of appellant-Sanjay Pawar, however, I find this suggestion to be meaningless in view of the fact that the Investigating Officer has admitted that Vithoba Dahiphale, who is father of friend of appellant-Sanjay Pawar to be present at the time of recovery and has informed that he owned house. Similarly, I found no substance in the suggestion put to the Investigating Officer that Vithoba Dahiphale was not arrested for having received the stolen property, as it is not the case of the prosecution that house of Vithoba Dahiphale was searched by the Investigating Officer based on some information about his receiving stolen property. Similarly, I found no substance in the suggestion put to the Investigating Officer that Vithoba Dahiphale was not arrested for having received the stolen property, as it is not the case of the prosecution that house of Vithoba Dahiphale was searched by the Investigating Officer based on some information about his receiving stolen property. But, as already discussed above, evidence of P.W6 Vijay Kale, P.W.7 Narwade, PSI is that, it is at the instance of appellant Sanjay, his memorandum statement Exhibit 37 was recorded and house of Mohan Vithoba Dahiphale came to be visited, where from appellant-Sanjay produced two bags at his instance and the same came to be seized as per Exhibit 38. In that view of the matter, there is no substance in the suggestion that PSI Narwade had not effected arrest of Vithoba for above reason. In view of evidence of P.W.6-Vijay Kale and P.W.7-Narwade, PSI, the prosecution has thus satisfactorily established the involvement of appellant No. 1 in the commission of present crime. As regards appellant-Sanjay's involvement along with appellant original accused No. 2 Sajed and appellant-original accused No.3 Saddam, evidence of P.W. 8 Deepak, which is relied by the prosecution as an independent witness, on seizure panchnama, reveals that gold ornaments and vehicle Fortuner came to be seized, however, P.W.8 Deepak has not supported the case of prosecution. Since he has stated that he was not called by the Police on 10-05-2012 along with another panch Ganesh Satav and has denied that any information was received by P.W.10-Rahul Khade and based on it, he had accompanied Police towards Mohata Devi-Pathardi road. He also denied that the Police intercepted vehicle bearing No MH-12-FU/8433 and on apprehension of its occupants, recovery of gold ornaments, two bags and mobiles was made. 23. Admittedly, the prosecution had not examined another panch on said seizure panchnama though he was cited as one of the witness. However, in absence of evidence of said witness, evidence of P.W.10 Rahul Khade, Dy.S.P. established involvement of the appellants, when he has stated that on 10-05-2012, when he was posted at Ahmednagar, on receiving information about movement of Fortuner vehicle having no registration number plate upon it, on Mohata Devi Road, in Pathardi Taluqa trap came to be laid in presence of two panchas and staffs at about 10.00 am. near Mohata Devi Temple, when at about 11.30 a.m. Fortuner vehicle arrived and was intercepted. near Mohata Devi Temple, when at about 11.30 a.m. Fortuner vehicle arrived and was intercepted. Said vehicle was found occupied by four persons, who made attempt to ran away, however, police officials on chasing could apprehend three amongst them, while one succeeded in fleeing away from the spot. The evidence of P.W.10-Rahul Khade further reveals that on interrogation with the appellants, they did not give satisfactory reply and had disclosed their names. On obtaining personal search of the appellants, original accused No.1 - Sanjay was found having in his possession 10 gold rings, one gold chain and one mobile. Appellant-Sajed was having in his possession one gold bangle, three ear rings while appellant-Saddam was having in his possession a mangalsutra and one ring. On obtaining search of vehicle-Fortuner, its registration number plate was found removed and has kept inside the vehicle having registration No. MH-12-FU/8433. All muddemal articles along with vehicle were seized under panchnama (Exhibit 50) and given in custody of Nagar Taluka Police Station. 24. In the cross-examination of P.W.10-Rahul Khade nothing is elicited to doubt his evidence. Though he is suggested and has admitted that he has not prepared arrest panchama of the accused, evidence of P.W. 7 Narwade established that appellants were apprehended by P.W.10 Rahul khade, Dy.S.P., and their arrest was effected by PSI Narwade, on 10-05-2012 i.e. on same day under arrest panchnama. 25. Evidence of P.W.9 Shaikh Ayub, Police Head Constable, established the fact that P.W.3 Prashant Gaikwad lodged his report at Exhibit 27, which is recorded by him. 26. Considering the evidence of the complainant (P.W.3), his wife (P.W.5), coupled with evidence of independent witness Vijay Kale (P.W.6), who has established recovery of two bags at the instance of appellant-Sanjay, which were found containing steel utensils having name of the complainant upon it and in view of the evidence of P.W.10 Rahul Khade establishing apprehension of the appellants and the vehicle Fortuner owned by complainant Prashant and recovery of gold ornaments from their possession clearly established the involvement of the appellants in the present crime beyond reasonable doubt. 27. Learned counsel for the appellants in the background of above facts has relied upon the authority in the case of Bala Pandurang Kesarkar and another Vs. State of Maharashtra reported in 2000 Cri. 27. Learned counsel for the appellants in the background of above facts has relied upon the authority in the case of Bala Pandurang Kesarkar and another Vs. State of Maharashtra reported in 2000 Cri. L.J. 693 and had submitted that, at the most the appellants, in view of available evidence can be convicted for the offence punishable under Section 411 of the IPC and not under section 392 of the IPC. In the case relied on behalf of the appellants, it appears that recovery of articles in respect of which theft was committed were recovered at the instance of accused, after six days and thus conviction was altered, as above, observed that, recovery was not immediate. The learned counsel for the appellants also relied upon the authority in the case of State of Rajasthan Vs. Talevar and another reported in 2011 ALL MR (Cri) 2340 (S.C.) wherein also it is held that since recovery was not in close proximity of time from the date of incident, which was in respect of cash, small things and vehicle, observing that, such articles can be passed easily from one person to another, benefit of doubt was extended to the appellants. On the same aspect, learned counsel for the appellants also relied upon the authority in the case of Ankush Bansi Wagh and another Vs. State of Maharashtra reported in [2009 (1) Mh.L.J.(Cri.) 324 : [2008 ALL MR (Cri) 3055), wherein recovery of stolen articles which was alleged to be at the instance of accused was not in accordance with law, and thus, accused was granted benefit of doubt. 28. Above submission of the learned counsel for the appellants, however, cannot be accepted, for the reasons that, there is no in ordinate delay involved in the instant case, effecting recovery, as incident took place in the wee hours of 06-05-2012, which was reported on the same day, in the morning by complainant Prashant, while recovery of the articles which consists of gold ornaments and vehicle-Fortuner came to be effected on 10-05-2014 i.e. after three days. 29. For non-examination of second panch on the seizure panchnama at Exhibit 58 and relying upon the sole evidence of P.W.10 Rahul Khade, who has drawn the panchnama, learned APP has relied on the judgment in the case of Sham Shankar Kankaria Vs. State of Maharashtra and another reported 2005 ALL MR (Cri) 383. 29. For non-examination of second panch on the seizure panchnama at Exhibit 58 and relying upon the sole evidence of P.W.10 Rahul Khade, who has drawn the panchnama, learned APP has relied on the judgment in the case of Sham Shankar Kankaria Vs. State of Maharashtra and another reported 2005 ALL MR (Cri) 383. It was an appeal against conviction under sections 302 and 304 of the IPC and while appreciating the evidence, it is observed that, non-examination of irrelevant witness or even relevant witness would not be fatal to the prosecution case, if the evidence already placed on record is sufficient to establish the guilt of the accused. Referring to the decision of the Apex Court in the case of Babu Ram and another Vs. State of U.P. and others, in paragraph No. 34 of the decision, it is held that it is not quantity of the evidence but the quality of evidence which is material while considering the prosecution case. 30. In the appeals in hand, the prosecution has not examined second panch, namely, Ganesh Satav and P.W.8-Deepak, who is examined has not supported the prosecution case. However, there is nothing on record in the cross-examination of P.W.10 Rahul Khade Dy.S.P. who has effected recovery of ornaments and vehicles so as to doubt his evidence. On the contrary, it is nowhere suggested to the witness Rahul Khade that no trap was laid as alleged by the prosecution. 31. In the light of above discussed evidence and considering the legal principles as referred to above, I am of the considered view that appeals are without substance and are liable to be dismissed. 32. In the result, both the appeals stand dismissed confirming the Judgment and order dated 16-01-2013, passed by the learned Additional Sessions Judge-5, Ahmednagar, in Sessions Case No. 253 of 2012, convicting the appellants for the offence punishable under Section 392 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years each and to pay fine of Rs. 3000/- (Rupees Three Thousand) each, in default of payment of fine to suffer rigorous imprisonment for six months each. 33. The fees of the learned counsel Mr. S.S. Kazi, for the appellants (appointed) in Criminal Appeal No. 62 of 2013 is quantified at Rs. 5000/-. 34. The Office to communicate the said decision to the appellants through the Superintendent of concerned Jail. Appeals dismissed.