JUDGMENT : Ratnaker Bhengra,J. When the matter was called out no one appeared on behalf of the appellants. On the last occasion also none appeared on behalf of the appellant. Therefore, Mr. Chandrajit Mukherjee is being appointed as Amicus Curiae. 2 This Criminal appeal is directed against the judgment of conviction dated 17.8.2000 and order of sentence dated 19.8.2000 passed by the learned 2nd Additional Sessions Judge, Hazaribagh in S.T. No. 138 of 1993 whereby the above named appellants have been found guilty and convicted under sections 395 and 412 of the Indian Penal Code. However, the appellants were sentenced under section 395 of the Indian Penal Code with no separate sentence under section 412 of the Indian Penal Code.. 3. The appellants were facing trial for the offence under sections 395/412 of the Indian Penal Code. 4. The prosecution case is in brief as per Fardbayan of Sri Bharo Singh Branch Manager, Bank of India Branch Barkagaon P.S. Barkagaon recorded by P.S.I Krishna Kumar on 11.6.1992 at Bank of India Building is that on 11.6.1992 at about 11.25 A.M when the informant, Branch Manager, Bank of India, Barkagaon Branch was conducting his business in the bank along with other bank officers, staff and 30-35 customers, all on a sudden five dacoits having variously armed with pistols entered into the bank premises, two of them came to the Branch Manager and Agriculture Officer of the Bank and on the point of pistol they were threatened of dire consequences and were asked to keep quite. Three of them went towards cash counter and the bank staff, who were present there, were taken to the stationary room and were bolted inside the room from outside and then the Branch Manager and cashier were directed to open safe of the bank. When they opened the safe, they took away the money available there and then from the cash counter also they collected money and thereafter they tore the Matriculation copy and draft book and then went away with entire money. When the miscreants left the bank, the staff of the bank, after breaking open the glass of ventilator, raised alarm. The police arrived there after sometime and then the staff of the bank were taken out from the stationary room. When the miscreants left the bank, the staff of the bank, after breaking open the glass of ventilator, raised alarm. The police arrived there after sometime and then the staff of the bank were taken out from the stationary room. The crowd assembled there and disclosed that the miscreants had gone towards Hazaribagh in an Ambassador Car No. DEB 4681 and then information was given to the police regarding occurrence with details of cash taken away by the dacoits amounting to Rs. 1,07405/-.The informant and other persons claimed to have identified the miscreants. 5. It is further alleged that in the same transaction the miscreants were trying to escape with looted cash in an Ambassador car and they were apprehended at Barhi chouk on Telaiya road and some of them had been killed in encounter and some of them escaped. Entire looted money from the bank had also been recovered from the said car. The offence under sections 395/412 of the Indian Penal Code was exclusively triable by the court of Sessions. The appellants have denied the charge levelled against them. 6. Altogether 15 witnesses have been examined in this case. The accused/appellants have completely denied the allegations levelled against them during course of their statement recorded under section 313 Cr.P.C.They have not entered into any positive defence. 7. The informant, Bhairo Singh, of this case has been examined as P.W6.He is the Branch Manager of Bank of India, Barkagaon Branch. He has corroborated his version made in the FIR and stated that while he was in duty in the bank, five persons having with armed entered into bank and on the point of revolver they threatened the staff and directed them to hand over the money and accordingly safe of the bank was opened and cash available in the safe was taken by the miscreants and then all the staff including the informant had been confined in the stationary room by them. It has also been stated that the miscreants tore the matriculation copy and draft books because they were not satisfied with the cash looted by them. They had some expectations that there must be much more amount what they had taken from there. Subsequently, they escaped with Rs.107405 in cash and then glass of ventilator was broken and alarm was raised and then police arrived there and then information was given to them. They had some expectations that there must be much more amount what they had taken from there. Subsequently, they escaped with Rs.107405 in cash and then glass of ventilator was broken and alarm was raised and then police arrived there and then information was given to them. It has also been stated that the accused persons had escaped from the spot in an Ambassador Car No. DEB 4681 towards Hazaribagh. He has proved his signature along with the signature of S.P Keshari on the F.I.R which marked exhibts no. 1 and 1/1. It has also been stated that cash looted by the dacoits had been recovered and had received by him on undertaking. He has given the number of bait money which is 487301 to 487400 and 419301 to 419400 for the currency notes of Rs.100 and Rs. 50 respectively. He has further stated that he had identified the looted money and the accused persons. From the deposition of P.W 6 it appears that he confused to identify the accused persons in the dock of the court room to whom he had identified in the T.I.P. Instead of identifying Rajesh Kumar, he identified accused Shrawan Kumar. For this ground defence has tried to get benefit but in view of the fact that Shrawan Kumar was also proved to be present at the time of alleged occurrence, as it will be discussed later on. His confusion in identification was due to the fact that this accused was also present at the time of occurrence. In the cross examination of this witness several questions were asked to him about the procedure of bank business and from his deposition there is no reason to disbelieve him on any point. Not only that, they are not relevant for the decision of the case because it is almost proved from the evidence of this witness that dacoity had taken place in which accused persons looted the money from the bank. 8. P.W 5, N.Laxmanam was the Agriculture Officer of the bank and at the time of occurrence he was found to be sitting with the P.W6. 8. P.W 5, N.Laxmanam was the Agriculture Officer of the bank and at the time of occurrence he was found to be sitting with the P.W6. He stated in his deposition that he was also present on the date of occurrence with the Branch Manager (P.W6) while the accused persons entered into bank and on the point of pistol he was forced to open the safe and some of them had looted the money from the cashier. He also stated that all of them were kept in confinement in the stationary room. After looting the money accused persons fled away from the spot. He gave serial number of notes which was kept as bait money and stated that there was a bank seal and signature of the cashier on the looted currency notes. He also stated that miscreants fled away in an Ambassador car No. DEB 4681 towards Hazaribagh. Subsequently, one of the accused persons was arrested and was put on T.I.P to whom this witness identified before the Magistrate. He also identified the accused Rajesh Kumar in the dock. In cross examination many question were asked to this witness but there is no reasons to disbelieve him. He was also tested for cross examination. Regarding identification of notes also he has been credited. Regarding identification of the accused Rajesh Kumar, he had denied that he had been shown the accused in the police station and there is no materials before this court to accept the defence of the accused that he had been identified by this witness because he had been shown to him in the police station. 9 P.Ws 1,2,3,4,7 and 8 are the staff of the bank. They also supported the prosecution case. All of them have categorically stated that on 11.6.1992 when they were present in the Bank at about 11.20 A.M. the accused persons, who were five in number, entered into bank having with pistol and on the point of pistol , all of them had been kept in confine in the room and they took away Rs.107405/-in cash. Regarding identification of the accused persons, these witnesses had resiled from their previous statement while asking by the prosecution to identify the accused persons in the dock of the court room. Regarding identification of the accused persons, these witnesses had resiled from their previous statement while asking by the prosecution to identify the accused persons in the dock of the court room. The ground taken by the witnesses is that due to lapse of time they had not been able to identify real culprits in the dock of the court room to whom they had identified in the T.I.P. So far as T.I.P is concerned, they conceded that they had participated in the T.I.P and identified the real culprits and their evidence was supported by P.W 15 Mr. D.S. Mishra, J.M. posted at Hazaribagh who had stated that the these witnesses identified the accused persons in his presence while T.I.P was held(Exhibit 9 and 9/1). The defence has tried to take benefit regarding identification of the accused persons and asserted that the T.I.P. held during course of investigation of the case was not enough to prove the prosecution case that witnesses had seen and identified the accused persons at the relevant time of the alleged occurrence. P.W 15 stated in his evidence that these witnesses identified the accused persons in his presence and as P.W5 also identified one the accused persons in the dock of court room, the confusion in identification by P.W 5 is not enough to create doubt. The surrounding circumstances, recovery of money from the said car and one of the accused persons having been apprehended subsequently clearly show their complicity in the alleged occurrence. 10. P.W 9, Shambhu Nath Singh, is the officer-in-charge of Barkagaon police station who stated in his deposition that on the date of occurrence at about 11.35 A.M the information was received in the police station that dacoity was being committed in Bank of India, he rushed there with S.I. Krishna Kumar along with armed force and as soon as he reached there he came to know that miscreants had ran away in an Ambassador car towards Hazaribagh and so he also followed them on his motor cycle with one armed force leaving Krishna Kumar with necessary instruction and reached near Simra rest house and from there he met with the S.P Hazaribagh to whom he disclosed the number of car by which the accused persons were running away. He had directed him to go towards Bishnugarh side and he himself went towards Barhi side. He had directed him to go towards Bishnugarh side and he himself went towards Barhi side. When he reached near village Lakhe, he stopped a Maruti van and asked about the said Ambassador car but he was told by person in van that no such car was found going on that road. He returned from there and reached near Dakbanglow Chouraha and he asked from the Driver of a bus coming from Barhi side, he was informed that the car of S.P. was going towards Barhi and the said Ambassador car was found going after Padma O.P. So he also started for Barhi and when he reached near Barhi Chouk, he was informed that one of the miscreants was apprehended, two fled away and two had been killed in encounter with the S.P. The looted cash, pistol and cartridges were kept in the police station and the said car was also there. He took charge of cash money and came to know about name and address of the miscreants and his other associates. He prepared seizure list accordingly and then came back to Barkagaon Bank of India and his statement was recorded by S.I Krishna Kumar which he has proved and marked exhibit 2.He also proved formal F.I.R Exhibit 3.The investigation was started by Krishna Kumar from whom he took charge and then started investigation himself. It is further asserted that as recovered money was found to be of Bank dacoity, so he prayed the C.J.M for adding section 412 I.P.C. in the charge sheet vide exhibit 4.Accused had disclosed his real name vide exhibit 5 before him. The seized money was put on T.I.P in presence of B.D.O Baragaon and it was handed over to the Bank of India Barkagaon. During course of investigation, he arrested Shrawan Kumar the other co-accused .He submitted charge-sheet but part of the investigation was conducted by Arjun Ram S.I. In his cross examination, many questions were put to him regarding place of occurrence and T.I.P and he stood to the test. He has denied the suggestion that there was no eye witness amongst the public so they had not been made witnesses of T.I.P. 11. P.W.11 Krishna Kumar is the previous I.O of the case. He has denied the suggestion that there was no eye witness amongst the public so they had not been made witnesses of T.I.P. 11. P.W.11 Krishna Kumar is the previous I.O of the case. He corroborated the evidence of P.W.9 and stated that after receiving information he accompanied P.W9 to Bank of India from there he came to know that the miscreants had ran away towards Hazaribagh.P.W9 went to follow them and he waited there. He recorded fard beyan the informant and started investigation. He has proved exhibit 2. Subsequently he handed over the charge to Shambhu Nath Singh (P.W9). 12. After going through the records and apparent facts and circumstances and evidence it is clear that the accused persons Rajesh Kumar and Sharawan Kumar were involved and guilty for the offence under sections 395/412 of the Indian Penal Code. 13. P.W.6, Bhairo Singh , who is the informant in this case as also is eye witness to the dacoity, has proved from his evidence that dacoity took place in the bank. He witnessed the dacoity and saw them escaping from the place of occurrence. He subsequently recovered the looted money which he identified the same. In the court instead of identifying the appellant Rajesh Kumar, he identified the appellant Sharawan Kumar, but his confusion may not be material since Sharanwan Kumar was also present at the time of occurrence. 14. P.W.5 N. Laxmanam is also witness of the alleged occurrence and he has corroborated the evidence of P.W6.He has further identified accused Rajesh Kumar in the dock and said that the miscreants had fled away in an Ambassador Car. 15. P.Ws 1,2,3,4,7 and 8 are also the staff of the Bank and they have supported the prosecution case. 16. P.W.9 Shambhu Nath Singh is Officer-in-charge of Barkagaon Police Station and he was informed about the alleged dacoity committed in the bank, but on reaching the bank, dacoits had fled away and therefore, he gave chase and is witness and aware of the apprehending of one of the accused and recovery of the looted money. 17. P.W.11 Krishna Kumar has corroborated the evidence of P.W9.From the evidences of the prosecution witnesses available on record, particularly P.Ws 5,6 and 9 it is clear that the accused persons herein had participated in the dacoity or 395 IPC. 17. P.W.11 Krishna Kumar has corroborated the evidence of P.W9.From the evidences of the prosecution witnesses available on record, particularly P.Ws 5,6 and 9 it is clear that the accused persons herein had participated in the dacoity or 395 IPC. It is also indicated in the judgment of the lower court that the defence had not questioned the occurrence of dacoity and in the case of apprehension of one accused and recovery of money, as per related Barkagaon P.S Case No. 90 of 1992/S.T No. 138 of 1993, participation in the alleged dacoity is further made clear. The subsequent recovery in another S.T. No. 210 of 1993 also cements involvement of the accused persons herein in the dacoity. 18. Regarding Section 412 of the Indian Penal Code, from the evidence of P.W6, P.W9, P.W 13 and P.W.14 it is proved that currency notes were seized from the presence of the accused person. Moreover, P.W 6 had received the recovered money later on and bait money number included from 487301 to 487400 and 419301 to 419400 and he has asserted that he identified the looted cash. P.W 5 has also stated that bait money was looted by miscreants. Hence money was also recovered and recognized. 19. P.W 9 is the Officer Incharge of the Barhi police station who arrived at the bank or the place of occurrence at 11.35 A.M and after taking stock immediately gave chase. He then arrived at the place of occurrence where there was an encounter and two miscreants had been killed, two fled away and one was apprehended. From the apprehended person he was able to obtain the names and addresses of the other involved accused persons. This was an immediate chain of events linking one to another. Revelation of names would support and corroborate the identification. Seizure list exhibits 1 /2 and 8 also contains signature of Rajesh Kumar. This shows that the currency notes were recovered from the Ambassador Car No. DEB 4681 in which the accused had fled away. In the evidence of P.W 9 it has come that Rajesh Kumar was apprehended. The number of notes tallied with number of notes given in the FIR. 20. P.W 13 Arjun Ram and P.W.14 Anjani Kumar have been examined on the point of recovery of money. P.W 13 proved original copy of the seizure list(Ext.8 and ½) and has proved signature of Rajesh Kumar. The number of notes tallied with number of notes given in the FIR. 20. P.W 13 Arjun Ram and P.W.14 Anjani Kumar have been examined on the point of recovery of money. P.W 13 proved original copy of the seizure list(Ext.8 and ½) and has proved signature of Rajesh Kumar. 21. learned counsel for the appellants has tried to raise suspicion on question of identification and also said that long and sufficient time has been spent in custody by the appellants. 22. Thus from the aforementioned facts and circumstances and evidence available on record it is clear that the accused Rajesh Kumar and Sharanwan Kumar were rightly convicted under sections 395 and 412 of the Indian Penal Code. 23. Hence, having heard the learned counsels for the appellants, perused materials available on record and also considering the facts and circumstances of the case, the conviction of the appellants under sections 395 and 412 of the Indian Penal Code is upheld and their appeal is dismissed. It is indicated in the impugned judgment that the appellants are to undergo rigour imprisonment for 10 years. However, it is indicated in the order dated 1.4.2002 that the appellants have spent more than nine years in jail custody. It is submitted that they are poor persons and have faced rigours of trial. As such the punishment order may be modified. Hence, the order of sentence is modified to the period already undergone by them. The appellants are on bail and hence they are discharged from the liabilities of their bail bonds. 24. Accordingly, this appeal stands disposed of.