JUDGMENT Manindra Mohan Shrivastava, J. 1. These two appeals are being decided by this common judgment as both the appeals are directed against impugned judgment of conviction and order of sentence dated 26th August, 2010 passed by 8th Additional Sessions Judge, F.T.C., Durg (C.G.), in Sessions Trial No. 77/2009, whereby the appellants have been held guilty of commission of offence and sentenced as described below:-- Conviction Sentence Under Section 395 of IPC Rigorous Imprisonment for ten years with fine of Rs.500/-, in default of payment of fine further R. I. for one month. 2. Case of the prosecution is that Anjana Pathaniya (PW10) was looted in her dwelling house and information was given to the police who arrived at the spot and recorded dehati nalishi in Ex. P/24. It followed registration of FIR in Ex. P/25 in the police station. In the FIR, Anjana Pathaniya (PW10) stated that on 03.01.2009 at about 8:30 p.m., she was in her house along with her son Ninad, aged about 11 years and while she was going to close the gate, four persons came in and bolted the door from inside. Their faces were open. She was asked to take out valuables stating that nothing would happen to her upon which, she took out a chain, ear-tops and bangles. One of the four assailants was holding a small silver coloured pistol and also holding a hockey stick. Others had picked up stumps and bat kept in the house. She and her son was locked inside the bathroom. After sometime when the accused persons went away, she came out and cried for help and ear-tops, rings were not found. The police, thereafter, carried out investigation and suspecting appellants and five other persons, they were arrested. Their memorandum were taken and it is said that on the basis of the memorandum, looted articles were recovered. The accused persons were subjected to Test Identification Parade and it is said that in the identification parade carried out on 31.03.2009, the two appellants namely -Dilip Sahu and Umed Kumar Pathak were identified by Anjana Pathaniya (PW10). The recovered articles were identified by Anjana Pathaniya (PW10) in the presence of the Executive Magistrate. The accused persons were subjected to Test Identification Parade and it is said that in the identification parade carried out on 31.03.2009, the two appellants namely -Dilip Sahu and Umed Kumar Pathak were identified by Anjana Pathaniya (PW10). The recovered articles were identified by Anjana Pathaniya (PW10) in the presence of the Executive Magistrate. After completion of usual investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Durg (C.G.) who in turn, committed the case to the Court of Sessions wherefrom it was received on transfer by 8th Additional Sessions Judge, F.T.C. Durg for trial. 3. On the basis of the material contained in the charge-sheet, learned Trial Court framed charges against each of the appellants alongwith other accused on 27.07.2009. The appellants were charged of committing offence under Section 395 IPC on the allegations that the appellants had looted gold jewelries valued Rs. 35,000/- on gun point. The appellants having abjured guilt, they were put to trial. During trial, out of seven accused, two accused namely -Kamlesh Chandravanshi and Raju Nishad absconded. Relying upon the evidence led by the prosecution, learned Trial Court held the two appellants guilty of commission of offence and convicted each of them for commission of offence under Section 395 of IPC and sentenced them as described above. Remaining three accused namely-Bhishmdev, Hemant Sahu and Gopeshwar were acquitted. 4. Assailing the correctness and validity of impugned judgment of conviction and the sentence, learned counsel for the appellants argued that the prosecution has failed to prove its case beyond reasonable doubt. He submits that the identification of the two appellants is highly doubtful because it was conducted within the jail premises and that too, after 65 days of they having been taken into custody. The prosecution witness Anjana Pathaniya (PW10) has not clearly stated as to on what basis she identified the two appellants. She had earlier stated that one of the accused had a cut mark on his face, whereas, none of the appellants have any cut mark on their faces. It is next contended that the appellants have not been identified by the son of Anjana Pathaniya (PW10) namely-Ninad, who had also seen the incident and no reason has been assigned by the prosecution as to why the appellants were not identified by the son of Anjana Pathaniya (PW10). It is next contended that the appellants have not been identified by the son of Anjana Pathaniya (PW10) namely-Ninad, who had also seen the incident and no reason has been assigned by the prosecution as to why the appellants were not identified by the son of Anjana Pathaniya (PW10). In the identification memo or in the Court evidence, it has not been proved that at the time of identification, persons with similar appearance, outfit and personality were mixed up and kept in the line according to the choice of the two appellants. Therefore, the entire identification is doubtful. It is next contended that the recovery of allegedly looted articles from the appellants is also not proved because the seizure witnesses-Mahendra Kumar Ramteke (PW1) and Amrit Lal (PW2) have not supported the seizure of looted articles from the appellant-Dilip Sahu vide Ex. P/12 and appellant Umed Kumar Pathak vide Ex. P/14. In these circumstances, it is argued, seizure only on the basis of testimony of Investigating Officer is liable to be disbelieved. It is next contended that the prosecution has failed to prove that five or more persons were involved in the commission of robbery so as to make it a case of dacoity punishable under Section 395 of IPC. He submits that the victim of the incident namely-Anjana Pathaniya (PW10) has everywhere stated that there were four persons and the testimony of two other prosecution witnesses namely- Anup Shrivastava (PW3) and Mukund Patil (PW6) does not inspire confidence as they claimed to have seen persons running in a flash of moment, in which, it was not possible to precisely state the number of persons, seen in flash of moment and they having immediately disappeared. That by itself, cannot conclusively prove involvement of five or more persons in the alleged commission of offence. Therefore, even if the entire case of the prosecution is accepted in so far as looting is concerned, it would not be a case of commission of offence under Section 395of IPC. That by itself, cannot conclusively prove involvement of five or more persons in the alleged commission of offence. Therefore, even if the entire case of the prosecution is accepted in so far as looting is concerned, it would not be a case of commission of offence under Section 395of IPC. Lastly, learned counsel for the appellants argued that in the totality of the circumstances, in which, the incident happened, that the appellants did not cause any injury to anyone or in any manner sought to overpower Anjana Pathaniya (PW10) by any forceful means nor used any firearm or any other weapon and looking to the value of the ornaments alleged to be looted, the sentence awarded to the appellants are liable to be reduced to the period already undergone by the appellants. It has been submitted that by now the appellants had completed more than six years of their imprisonment on 15.01.2015. 5. On the other hand, learned counsel for the State supports the judgment of conviction and sentence and submits that there are no material discrepancy so as to disbelieve the Test Identification Parade and identification of the appellants by Anjana Pathaniya (PW10). He submits that the appellants have also been identified by the victim in the Court. Therefore, the appellants are clearly proved to be involved in commission of offence. It is next contended that in so far as recovery is concerned, the two prosecution witnesses-Mahendra Kumar Ramteke (PW1) and Amrit Lal (PW2) have admitted their signature in seizure memo Ex. P/12 and P/14 by which gold ornaments looted by the appellants and other accused were recovered from the two appellants. The Investigating Officer Mukesh-Khare (PW12), S.D.O. police has proved recovery of gold ornaments from the two appellants which have been duly identified in the presence of the Executive Magistrate by Anjana Pathaniya (PW10). He further submits that the victim who was inside the house has stated about four persons having come inside the house and two witnesses of the prosecution Anup Shrivastava (PW 3) and Mukund Patil (PW6), who were standing outside the house have clearly stated that there were about 6 to 7 persons involved in the commission of offence, therefore, it has been proved that as many as five persons were involved and that offence under Section 395 has been committed. Lastly, learned counsel for the State submits that the offence being grave one and having been committed in the night where the appellants entered the dwelling house and looted gold ornaments from Anjana Pathaniya (PW10) on gun point, the sentences awarded to them also do not warrant any interference. 6. Dehati nalishi in Ex. P/24 has been proved by G.S. Baghel (PW7), Assistant Sub-Inspector, who has deposed that information was received regarding dacoity in Pushkar Nagar, upon which, he reached the spot and recorded and reduced in writing, the information given by Anjana Pathaniya (PW10) regarding commission of offence. He has proved his signature on dehati nalishi. Anjana Pathaniya (PW10) has also stated that upon information, police had arrived at the spot and she had informed, upon which, a report was recorded at the spot itself. The FIR in Ex. P/25 lodged the next day in the police station on 04.01.2009 at about 3:30 hrs. has been proved by G.S. Baghel (PW7), Assistant Sub-Inspector, who has stated that on the basis of dehati nalishi, FIR was registered by him in the police station and has proved his signature. 7. Both in the FIR as also in dehati nalishi, number of persons who had entered the house stated to be four only. Anjana Pathaniya (PW10) the victim, who has been looted has deposed in her testimony in the Court that four persons had come inside the house. During her examination, she has verified this fact again by stating that four persons had entered the house and she does not claim to have seen any other person either inside the house or waiting outside the house, aiding in commission of offence, so as to say that they were also involved in the commission of offence. 8. It appears that the prosecution after arresting the accused persons is said to have recorded memorandum and on that basis, seven persons are alleged to be involved in the commission of offence. 9. Anup Shrivastava (PW3) has stated in his evidence that he had seen 6 to 7 persons cunning away and then he came to know that a dacoity had taken place in the colony in that area. His testimony on this aspect has remained uncontroverted. 9. Anup Shrivastava (PW3) has stated in his evidence that he had seen 6 to 7 persons cunning away and then he came to know that a dacoity had taken place in the colony in that area. His testimony on this aspect has remained uncontroverted. Mukund Patil (PW6) has also stated that at about 8:30 p.m. in the evening, he was present in Pushkar Nagar and when he was talking with his friend, he saw 6 to 7 persons running away and then heard noises. He also heard a woman and child were crying for help. In para 4 of his cross-examination, he has reiterated that he had seen 6 to 7 persons at about 8:30. There is no suggestion in his cross-examination that the number of persons was less than five. In para 8 of his further cross-examination, he has again reiterated that about 7 to 8 persons were seen running away. 10. From the aforesaid evidence on record, it can be safely concluded that in the incident more than five persons were involved. The submission of learned counsel for the appellants that the victim Anjana Pathaniya (PW10) speaks of only four persons can be explained because she had seen only those persons who had entered the house whereas uncontroverted testimony of Anup Shrivastava (PW3) and Mukund Patil (PW6) shows that there were about 6 to 7 persons involved in the incident. Obviously, there might be some other accused who waited outside and some of them went inside the house. 11. Therefore, the submission of learned counsel for the appellants that number of persons involved in the commission of offence were less than five, cannot be accepted and liable to be rejected. 12. Test Identification Parade was conducted by C.P. Mishra (PW9), Naib Tehsildar, he has deposed that the accused persons 7 & 8 number were mixed up is to ratio of 1:5 with the other person and made to stand according to serial number of their choice and their body was covered with blanket below neck. Thereafter, the victim Anjana Pathaniya (PW10) was brought inside and she identified the appellants Dilip Sahu and Umed Kumar Pathak by touching them though she could not identify remaining five accused. He stated that at the time of identification, a Jail Constable was also present whose signature was also obtained. Thereafter, the victim Anjana Pathaniya (PW10) was brought inside and she identified the appellants Dilip Sahu and Umed Kumar Pathak by touching them though she could not identify remaining five accused. He stated that at the time of identification, a Jail Constable was also present whose signature was also obtained. He has further deposed that at the time of incident, no police officer was present. He has proved his signature in identification memo (Ex. P/20) prepared under his instructions. 13. The credibility of Test Identification Parade is sought to be impeached on the submissions that in the Test Identification Parade in the memo, it has nowhere been written that persons of similarity Were mixed with the accused or that the accused were made to stand according to serial number of their choice or that their body was covered with blanket below neck. Therefore, the Test Identification Parade does not inspire confidence. True it is that in the Test Identification Parade memo, these facts have not been written but the testimony of C.P. Mishra (PW9) Naib Tehsildar, the Executive Magistrate who conducted Test Identification Parade is corroborated by the Constable on duty and present namely- Ghanshyam Prasad Sahu (PW4) who stated that he was also present at the time of conducting identification parade and all the accused persons were mixed with other person and made to stand according to serial number of their choice and their body was covered with blanket below neck. He has also stated that at the time of identification, no police officer was present. The victim Anjana Pathaniya (PW10) has identified the two appellants even during trial and there is nothing to doubt the veracity of dock identification of the two appellants in the Court. It has been vehemently submitted by learned counsel for the appellant that accused persons were taken into custody as early as on 15th of January and since then they remained in custody and they are put to identification on 31.03.2009, which by itself renders the Test Identification Parade highly doubtful. It has been vehemently submitted by learned counsel for the appellant that accused persons were taken into custody as early as on 15th of January and since then they remained in custody and they are put to identification on 31.03.2009, which by itself renders the Test Identification Parade highly doubtful. For one good reason that the two appellants were identified by the victim during trial, that delay is not fatal particularly when there is no other circumstance or any evidence emerging from records that during this period of custody, Anjana Pathaniya (PW10) who had identified them, had visited jail or police lock up so as to say that she had an opportunity to see them. 14. The other objection to identification has been taken on the ground that the son of the lady, aged about 11 years, had also seen the incident and the accused who was not produced for identification. Therefore, it cast doubt on the identification. Present is not a case where identification of the accused is doubtful so as to seek corroboration. Once the identification by Anjana Pathaniya (PW10) is found to be reliable, it is not necessary that in order to prove identification. Everyone who has identified, needs to be produced. 15. Even though the witnesses of seizure Mahendra Kumar Ramkete (PW1) and Amrit Lal (PW2) have not supported the case of the prosecution, the recovery of looted articles is proved by testimony of Mukesh Khare (PW12), S.D.O., who has clearly deposed that he had seized gold ornaments from the appellants Dilip Sahu as well as Appellant Umed Kumar Pathak. In his entire testimony, there is nothing to doubt as to why he would make a false seizure against the two accused. It is well settled that even where the recovery is not supported by seizure witnesses, in appropriate cases, the seizure proved by the police officer who carried out such seizure, can be acted upon. It has been examined herein above that two appellants were identified by the victim, therefore, this identification itself is a corroborative circumstance in support of seizure of gold ornament from the appellants. 16. The gold ornaments which have been seized were identified by Anjana Pathaniya (PW10) in the presence of G.R. Mahipal (PW8), the Executive Magistrate, who has stated that in his presence, seized jewelleries were placed before Anjana Pathaniya (PW10) and she had recognized and identified her gold ornaments. 16. The gold ornaments which have been seized were identified by Anjana Pathaniya (PW10) in the presence of G.R. Mahipal (PW8), the Executive Magistrate, who has stated that in his presence, seized jewelleries were placed before Anjana Pathaniya (PW10) and she had recognized and identified her gold ornaments. Dinesh Jethwa (PW5) has stated in his evidence that in his presence, Anjana Pathaniya (PW10) had identified her jewelleries and he put his signature in the identification memo (Ex. P/22). 17. Learned counsel for the appellants have vehemently argued that looking to the totality of the circumstances even if the appellants are found guilty of commission of offence, their conviction may be reduced to the period already undergone by them. Relying upon the judgment of the Supreme Court in the case of Ajit Singh v. State of Haryana (1996) 3 SCC 335 , learned counsel for the appellants submits that it was a case of commission of offence under Section 394 and 397 where the accused had come armed with pistol and victims were injured also. He submits that in those circumstances, the sentence of ten years was reduced to five years which the appellants had already undergone. 18. Present is a case where the appellants have been found involved in commission of dacoity by entering dwelling house in the night at about 8:30 and looted a female in the house. While these are the incriminating circumstances at the same time, it is found that the appellants did not fire any gun shot or in any manner cause any injury on the person of the lady or her child. It is also found that the allegation that one of the accused was armed with pistol could not be conclusively proved because the prosecution has not recovered any pistol and from the possession of any of the appellants. The value of gold articles which have been looted is said to be about Rs. 35,000/-. The appellants have already undergone 6 years of imprisonment. Therefore, taking into consideration the totality of the circumstances, the interest of justice would be served if the conviction of the appellants, in the facts and circumstances of the present case, is altered to seven years. 19. In the result, both the appeals are partly allowed. The conviction of the appellants are upheld and are altered from ten years to seven years. Both the appeals are accordingly partly allowed.