JUDGMENT : Dr. Shalini Phansalkar Joshi, J. 1. This appeal is directed against the judgment of Additional Sessions Judge, Greater Bombay, in Sessions Case No. 682 of 1992 dated 12.12.1996, thereby convicting the appellants - original accused Nos. 1, 5 and 6, for the offence punishable under Section394 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for six years and to pay fine of Rs. 5,000/-, each in default to suffer rigorous imprisonment for one year. At the outset itself, it is stated that the appeal is abated against appellant No. 2 - original accused No. 5 Ramesh, as per order dated 11.4.2001 in view of his death during pendency of the appeal. Hence the appeal is proceeded against the appellant Nos. 1 & 3 only. 2. Brief facts of the case as are necessary for deciding this appeal, may be stated thus:-- P.W. 1 Himanshu Surendrabhai Zaveri, is dealing in the business of diamonds. On 23.1.1992, he left the house at 8.50 a.m. for going to his factory, carrying two polythene bags, one bag was containing 7 Rexine Pouches in which rough diamonds were kept and the another polythene bag was containing his bank slips, pass-books, bunch of keys and other stationery. At about 9.05 a.m., he reached his factory. While he started climbing stair case of his building, three persons, who were following him, accosted him and snatched two polythene bags from his hand by threatening and inflicting a blow of sharp edge weapon in their hands on his left arm. When those three culprits, started running away in the rickshaw with the booty. P.W. 1 Himanshu tried to follow them, but could not succeed in doing so. Hence he went to police station and lodged complaint Exh. 15 against them. 3. On his complaint Exh. 15, P.W. 13 PSI Subhash Jadhav, who was present at Goregaon police station, registered C.R. No. 43 of 1992 against those three unknown persons, for the offences punishable under Sections 392, 397 read with 34 of the Indian Penal Code. As P.W. 1 Himanshu has sustained injury to his hand, he was referred to Cooper Hospital for the necessary medical examination and treatment. There P.W. 12 Dr. Rajendraprasad Tripathi examined P.W. 1 Himanshu and found one abrasion on his left forearm. He issued medical certificate Exh. 43 accordingly. As P.W. 1 Himanshu has sustained injury to his hand, he was referred to Cooper Hospital for the necessary medical examination and treatment. There P.W. 12 Dr. Rajendraprasad Tripathi examined P.W. 1 Himanshu and found one abrasion on his left forearm. He issued medical certificate Exh. 43 accordingly. Further investigation of the case was then taken over by P.W. 14 Senior Police Inspector Bhosekar. 4. P.W. 14 Senior PI Bhosekar went to the spot and made scene of offence panchanama in the presence of panchas. He also recorded statement of persons from the vicinity. On the next day, he recorded further statement of P.W. 1 Hmanshu, regarding source of stolen diamonds. On 25.1.1992 P.W. 14 Senior PI Bhosekar arrested appellant No. 1 Kisan from Fransis Wadi at about 13.10 hrs. On 28.1.1992, test identification parade of appellant No. 1 was conducted by Special Executive Magistrate P.W. 3 Ramkrishna Samant, in which P.W. 1 Himanshu identified the appellant No. 1. The memorandum of T.I. parade Exh. 27 was prepared accordingly. During the police custody, the appellant No. 1 expressed his willingness to make voluntary statement relating to the discovery of the stolen articles. Memorandum panchanma of his statement was made vide Exh. 29. The appellant No. 1 thereafter guided P.W. 14 Senior PI Bhosekar and the Panch to Jogeshwari (E) and produced Articles Nos. 3 and 4, namely cheque book, a Bank passbook of scheduled bank and telephone diary. All those articles were seized under panchanama Exh. 39A and shown to P.W. 1 Himmanshu. He identified those articles as belonging to him. His supplementary statement came to be recorded accordingly. 5. During the course of further investigation, on 31st January, 1992, original accused No. 2 Ashok, accused No. 4 Satyavan Kesarkar, accused No. 2 Ashok Dhondiba Renge were arrested. On 4th March, 1992, P.W. 14 PI Bhosekar arrested appellant No. 2 Ramesh and his test identification parade was held by P.W. 3 Samant on 5th March, 1992. In the said test identification parade, P.W. 1 Himanshu identified the appellant No. 2 Ramesh. Memorandum of test identification parade Exh. 23 was made accordingly. During the police custody appellant No. 2 Ramesh gave disclosure statement which led to the recovery of chopper used in the commission of offence. 6. In the said test identification parade, P.W. 1 Himanshu identified the appellant No. 2 Ramesh. Memorandum of test identification parade Exh. 23 was made accordingly. During the police custody appellant No. 2 Ramesh gave disclosure statement which led to the recovery of chopper used in the commission of offence. 6. On the next day on 6th March, 1992, appellant No. 2 Ramesh gave disclosure statement in presence of panchas and expressed his willingness to guide the police and panchas to recovery of stolen diamonds. Then he took P.W. 14 Senior PI Bhosekar and panchas to P.W. 5 Anand Shridhankar, who admitted to have received the bag containing diamonds from appellant No. 2 Ramesh. P.W. 5 Shridhankar then led the police and panchas to P.W. 6 Urvaduttta Joshi, who was residing in room No. 2, chawl No. 2, Seva Nagar. P.W. 6 Urvadutta Joshi led them to Rajesh Jain, whom he has handed over the said diamond packets. Said Rajesh Jain produced one school bag containing diamond packets in rexine pouches, which came to be seized under panchanama. Rajesh Jain then led the police and panchas to P.W. 8 Roshalal at Kandivali. Roshanlal Jain produced 34 packets of diamonds in three rexine pouches. They came to be seized under panchnama at Exh. 31. All these seized diamonds were shown to P.W. 1 Himanshu, who identified them as belonging to him. Accordingly statements of P.W. 5 Anand Shridhankar, P.W. 6 Urvadutta Joshi, Rajesh Jain and P.W. 8 Roshanlal Jain came to be recorded. 7. During the course of further investigation, about 14 rough diamond packets came to be seized at the instance of appellant No. 2 which were also identified by P.W. 1 Himanshu. 8. Appellant No. 3 Kisan was in the custody of Vakola Police Station. His involvement was also found in this offence; he was hence arrested in this C.R. He was also identified in the test identification parade held by P.W. 3 Ramkrishna Samant on 10th August, 1992. During the police custody appellant No. 3 expressed his willing to produce stolen diamonds. The memorandum of his statement was made vide Exh. 62. Then the appellant No. 3 Kisan took the police and panchas to village Kochiwada, Tal. Vasai, District: Thane; where he pointed one Kiran Vaity. Said Kiran Vaity led the police and panchas to the house of Umesh Pujari. The memorandum of his statement was made vide Exh. 62. Then the appellant No. 3 Kisan took the police and panchas to village Kochiwada, Tal. Vasai, District: Thane; where he pointed one Kiran Vaity. Said Kiran Vaity led the police and panchas to the house of Umesh Pujari. Said Umesh Pujari led the police and panchas to one Bala Khankar, who then took them to Sameer Shah. Sameer Shah produced one bag containing diamonds which was seized under panchnama. P.W. 1 Himanshu identified those diamonds as belonging to him and his further statement came to be recorded. 9. On 8th August, 1992, the appellant No. 3 again expressed his willingness to produce stolen property. Memorandum of statement was made at Exh. 65. He guided the police and panchas to one Shriram Nagar, Chawl No. 2, Vakola, Santacruz. He pointed one person Joseph D'silva, as his friend. Said Joseph admitted that he sold the said diamonds to Pankajbhai Raj. Said Pankajbhai produced the diamonds at the instance of appellant No. 3 which came to be seized under panchnama at Exh. 65A. These diamonds were identified by P.W. 1 Himanshu as belonging to him. Statements of witnesses Kiran Vaity, Umesh Pujari, Bala Khankar and Sameer Shah were recorded accordingly. On 9th August, 1992, the appellant No. 3 again expressed his willingness to produce the diamonds which he has given to Raju Shirsekar. The memorandum of his statement was recorded at Exh. 68. Then the appellant No. 3 led the police and panchas to Raju Shirsekar at Santacruz. Raju Shirsekar took them to one Sitaram Shetty, who produced one bag containing the diamonds, which came to be seized under panchnama vide Exh. 68A. Those diamonds were also identified by P.W. 1 Himanshu The test identification parade of appellant No. 3 was held by P.W. 3 Ramkrishna Samant on 10th August, 1992 in which P.W. 1 Himanshu identified him. 10. Thus, on the basis of recovery of this entire stolen property, initially chargesheet was filed against appellant Nos. 1 and 2 and co-accused on 23rd April, 1992, whereas supplementary chargesheet was filed on 10th October, 1992 against appellant No. 3. 11. On both these cases being committed to the Sessions Court, the trial Court framed charge against the appellants vide exh. 2. The appellants pleaded not guilty and claimed trial. 12. 1 and 2 and co-accused on 23rd April, 1992, whereas supplementary chargesheet was filed on 10th October, 1992 against appellant No. 3. 11. On both these cases being committed to the Sessions Court, the trial Court framed charge against the appellants vide exh. 2. The appellants pleaded not guilty and claimed trial. 12. In support of its case, the prosecution examined in all 14 witnesses and on appreciation of their evidence, the trial Court convicted and sentenced the appellants under Section 394 of IPC while acquitted them and other co-accused of all other offences. 13. In this appeal, I have heard learned counsel for the appellants Ms. Sarojini Upadhyay and learned APP Mr. Dedhia, for the State. In order to effectively deal with their submissions, in my considered opinion, it would be useful to go through the evidence. 14. P.W. 1 Himanshu is a star witness for the prosecution. According to him, he is dealing in the business of diamonds, having factory at Goregaon. On the date of incident on 23.1.1992, while he was proceeding to his office and climbing stair case of the building, carrying in hands two polythene bags; one bag containing 7 rexin pouches with diamonds therein, and in other bag bank papers and bunch of keys, the present appellants accosted him. The appellant Nos. 1 and 2 came in front of him, appellant No. 3 stood near him. The appellant Nos. 1 & 2 removed sharp edge weapons and under the threats of weapons, they asked P.W. 1 to hand over polythene bags. When he refused, appellant No. 2 gave him a blow of weapon on his left hand. The appellant No. 1 snatched both the bags from him and all of them started running away. P.W. 1 Himanshu, tried to follow them, but could not succeed. Then he went to police station and lodged complaint about the same vide Exh. 15, in which he has given details of description of those three unknown culprits and also description of stolen property. The complaint was lodged at about at about 9.25 a.m. and offence is registered immediately within hours from the occurrence. There is corroborating evidence on record to that effect of P.W. 13 PSI Subhash Jadhav and P.W. 15 PI Bhosekar. 15. Thereafter P.W. 1 was referred to Cooper Hospital for his medical examination. The evidence of P.W. 12 Dr. The complaint was lodged at about at about 9.25 a.m. and offence is registered immediately within hours from the occurrence. There is corroborating evidence on record to that effect of P.W. 13 PSI Subhash Jadhav and P.W. 15 PI Bhosekar. 15. Thereafter P.W. 1 was referred to Cooper Hospital for his medical examination. The evidence of P.W. 12 Dr. Tripathi, goes to reveal that he found an abrasion admeasuring 1/2 x 1/3' on the left forearm of P.W. 1 Himanshu. P.W. 12 Dr. Tripatihi has stated that the injury caused to P.W. 1 Himanshu is possible due to blow by chopper like article. The injury certificate of P.W. 1 Himanshu is at Exh. 43. This evidence of P.W. 1 Himanshu coupled with evidence of P.W. 12 Dr, Tripathi and P.W. 13 PSI Jadhav, thus, goes to prove the occurrence of the incident. 16. The evidence of P.W. 3 Special Executive Magistrate Ramkrishna Samant goes to prove that in the test identification parade held by him on 28th January, 1992, P.W. 1 Himanshu has identified the appellant No. 1; whereas in the test identification parade held on 5th March, 1992, he has identified the appellant No. 2, and in test identification parade held on 10th August, 1992. P.W. 1 has he has identified the appellant No. 3 as the same culprits. Needless to say P.W. 1 Himanshu had sufficient opportunity to observe the appellants as they had come near him and snatched bags from his hands. P.W. 1 has also tried to catch hold of them. The test identification parade in respect of appellant No. 1 is held within 5 days from the date of occurrence of the incident. 17. There is also evidence as to recovery of stolen diamonds and other articles at the instance of the appellants. The evidence of P.W. 14, PI Bhosekar, and P.W. 10 Jalil Ahmed goes to prove that at the instance of appellant No. 1 on 28.1.1992 itself the bank pass book, bank slips and other personal articles of P.W. 1 were recovered; whereas at the instance of appellant No. 2 Ramesh on 5.3.1992 chopper was recovered. The evidence of P.W. 14 further establishes the recovery of stolen diamonds at the instance appellant Nos. 1, 2 and 3 as stated above. Though these witnesses are cross examined, by the defence, nothing worthwhile is elicited in their cross examination to disbelieve them. The evidence of P.W. 14 further establishes the recovery of stolen diamonds at the instance appellant Nos. 1, 2 and 3 as stated above. Though these witnesses are cross examined, by the defence, nothing worthwhile is elicited in their cross examination to disbelieve them. Merely because P.W. 6 Urvadutta Joshi and P.W. 7 Mohan Mala, P.W. 8 Roshanlal Jain are declared hostile, it does not affect the recovery of stolen diamonds at the instance of the appellants. The recovery is also immediately after the incident and hence it rightly connects the appellants to the incident of robbery. 18. Here in the case, thus, the prosecution has not only established incident of robbery but also identification of the appellants to be the same persons and recovery of stolen property at their instance within few days of the incident. The prosecution has also succeeded in establishing P.W. 1 Himanshu receiving injury his hand to in the course of incident. Therefore, the trial Court has rightly held the guilt of the appellants to be proved beyond reasonable doubt for the offence punishable under Section 394 of the Indian Penal Code and hence no interference is warranted in the impugned judgment of the trial Court so far as conviction of appellants is concerned. 19. On the question of sentence, it is submitted by learned counsel for the appellants that appellant No. 3/original accused No. 6 was in jail during the pendency of the trial from 31.7.1992 to 31st January, 1997, i.e. for a period of approximately of five years; whereas the appellant No. 1 was in jail for a period of about one year and few months. According to learned counsel for the appellants, having regard to the fact that the incident has taken place in the year 1992 and the appellant Nos. 1 & 3 have undergone sufficient period of imprisonment in jail, it would not be proper at this stage to cancel their bail bonds and to call upon them to undergo whatever period of sentence remains. The learned counsel for the appellants has further submitted that whatever stolen property i.e. diamonds are already recovered. The injury sustained by P.W. 1 Himanshu was simpliciter abrasion and hence lenient view is justified in this case. According to learned APP Shri. Dedhia, however, it being preplanned robbery, no lenient view is justified. 20. The learned counsel for the appellants has further submitted that whatever stolen property i.e. diamonds are already recovered. The injury sustained by P.W. 1 Himanshu was simpliciter abrasion and hence lenient view is justified in this case. According to learned APP Shri. Dedhia, however, it being preplanned robbery, no lenient view is justified. 20. I have given my thoughtful consideration to the submissions advanced at bar. Admittedly the incident has taken place in January, 1992 i.e. more than 23 years back. The appellant No. 2 is already dead whereas the appellant No. 3/original accused No. 6 has undergone imprisonment for about 5 years which is sufficient punishment having regard to the nature of offence, coupled with the fact that the stolen property is recovered and injury caused to P.W. 1 Himanshu was mere abrasion. 21. As regards appellant No. 1, the period of imprisonment undergone by him though appears to be one year and few months only, considering the fact that the incident had taken place about 23 years back and there are no antecedents against him, as fairly conceded by the learned APP, at this stage, it would be travesty of justice to ask him to go to jail for undergoing remaining part of sentence. Hence having regard to the facts on record, it would be just and reasonable to direct that the punishment already undergone by the appellant Nos. 1 and 3 in jail is the imprisonment to which they are sentenced. Consequently the appeal is partly allowed. The conviction of the appellant Nos. 1 & 3 for the offence punishable under Section 394 is maintained; whereas sentence is modified to the period already undergone by them in jail. Their bail bonds stand cancelled. The fees of learned counsel appointed to represent the appellants in this appeal, is quantified at Rs. 5,000/-.