JUDGMENT : Challenge in this Criminal Appeal is by the appellants who were the A.3 and A.5 to the judgment, dated 23.08.2010 in S.C.No.561 of 2009 on the file of the IV Additional District and Sessions Judge, Kurnool (for short, ‘the learned Additional Sessions Judge’), where under, the learned Additional Sessions Judge found the present appellants guilty of the charges under Section 457, 342 and 412 of the Indian Penal Code, 1860 (for short, ‘the IPC’), convicted them under Section 235(2) of Cr.P.C. and after questioning about the quantum of sentence sentenced them to suffer Rigorous Imprisonment for five (5) years and also to pay a fine of Rs.500/- in default to suffer Simple Imprisonment for one (1) month each for the charge under Section 457 of the IPC and Rigorous Imprisonment for five (5) years and also to pay a fine of Rs.500/- in default to suffer Simple Imprisonment for one (1) month each for the charge under Section 412 of the IPC and Rigorous Imprisonment for one (1) year for the charge under Section 342 of the IPC and that all the sentences shall run concurrently. 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Additional Sessions Judge, for the sake of convenience. 3. (i) The S.C.No.561 of 2009 arose out of committal order in P.R.C.No.11 of 2009 on the file of Judicial Magistrate of I Class, Alur, pertaining to Crime No. 7 of 2009 of S.H.O., Holagunda Police Station, which was committed to the Court of Sessions and thereafter, it was numbered as Sessions Case and made over the IV Additional District and Sessions Judge, Kurnool for disposal in accordance with law. (ii) The case of the prosecution in brief as set out in the charge sheet is that. G.Agalur Narsa Reddy was son of Basanna Gowd, 70 years, belongs to Gajjahalli Village of Holagunda Mandal. He was the father of the LW.1-Gajjehalli Agalur Yerriprasad Reddy who is the de-facto complainant. LW.2-Gajjehalli Agalur Sundaramma is the wife of the deceased. LW.3-Chakali Ramalingamma is the maid servant of the deceased. LW.1 and his family were residing at Bellary. They came to their native village Gajjehalli for Sankaranti festival. He was the father of the LW.1-Gajjehalli Agalur Yerriprasad Reddy who is the de-facto complainant. LW.2-Gajjehalli Agalur Sundaramma is the wife of the deceased. LW.3-Chakali Ramalingamma is the maid servant of the deceased. LW.1 and his family were residing at Bellary. They came to their native village Gajjehalli for Sankaranti festival. On 14.01.2009, while returning to Bellary, they took namely LW.2- Gajjehalli Agalur Sundaramma along with them who is the wife of the deceased, while leaving his father Narsa Reddy and LW.3 maid servant in the house. During the said night, deceased and the maid servant slept in the house. On the intervening night of 14/15.01.2009, at about 12 hours, six (6) unknown offenders forming into unlawful assembly with a common object to commit dacoity, by arming with daggers, knives and sickles, gained entry in to the house. One (1) of them stood at the gate. Five (5) offenders trespassed into the house of LW.1 through ventilator and the steps. The maid servant due to the sound woke up and saw the five (5) unknown offenders and that they used criminal force, hold the legs of deceased and tied him and covered bed sheet over his face and caused suffocation with knowledge that it is sufficient to cause his death. They also tied the maid servant to a bench close to the cot. They demanded her in Kannada language to deliver the keys and valuable papers by threatening her at knife point. She kept quite due to fear. They broke the open iron box and three almirahs and committed theft of gold ornaments and silver ornaments and cash and decamped with booty. The maid servant somehow got herself released and rushed to LW.4-Gajjehalli Agalur Basavana Gowd and informed the occurrence at 03.30 AM. LW4 rushed in to the house and found Narsa Reddy lying dead on the cot. He informed the same to LW.1 by phone. Then LW.1 along with his mother and wife came down to Gajjinahalli Village and saw the dead body lying on the cot with a cut injury extending from middle of right ear to midpoint of cheek. On verification, they found missing of cash of Rs.1,20,000/- and (1) Two gold chains (2)one Gold Nagara Billa, (3) Mutyala Bangaru Danda with peacock design (4) Mallepoola Guccheda, all weighing about 15 tolas. On verification, they found missing of cash of Rs.1,20,000/- and (1) Two gold chains (2)one Gold Nagara Billa, (3) Mutyala Bangaru Danda with peacock design (4) Mallepoola Guccheda, all weighing about 15 tolas. He also found missing of four silver tumblers, five silver glasses and two (2) Kgs of silver articles, worth about Rs.2,50,000/-. (iii) On the report given by him, a case in Crime No.7 of 2009, under Section 396 IPC was registered by LW.17 the Sub-Inspector of Police, Holagunda Police Station and investigated into. LW.20 the Inspector of Police, Alur took up investigation. During investigation, they examined the scene of offence and recorded the statements of the witnesses. They conducted inquest over the dead body of the deceased. LW.20 prepared inquest report and sent dead body for P.M. examination. (iv) During the course of investigation, on 03.02.2009 at about 06.45 PM, at the outskirts of Alur-Adoni road LW.20 with the assistance of mediators, arrested A.1 to A.5 who were standing by holding one plastic bag in their presence and interrogated them. LW.20 prepared inquest report and sent dead body for P.M. examination. (iv) During the course of investigation, on 03.02.2009 at about 06.45 PM, at the outskirts of Alur-Adoni road LW.20 with the assistance of mediators, arrested A.1 to A.5 who were standing by holding one plastic bag in their presence and interrogated them. He searched the plastic bags of A.1 to A.5 and seized (1) one Nagaram Billa having red, white blue and green colour stones studded in the middle swan shape situated and on the back of the said Jadabilla silver spring situated (2) one silver tumber having Hey-Raa in Telugu letter and G.B.R. Letter, which were kept in the plastic Yellow colour hang bag, (3) also Rs.50/- note in his pocket present from the possession of A.1 and seized (1) two rowed gold Mutyala Chain peacock shape dollar having white, red, blue stones studded with 38 pears on either side, small gold lockets, studded with red stones (2) one silver tumbler on it M.L.N. Reddy English letters engraved which were kept in the yellow colour plastic hand bag from the possession of A.2 and seized (1) one Silver chembu having letter in Telugu as “Hay-Maa” Beema Gowd, (2) one silver glass having G.V.R. Reddy in English, which were kept in the yellow coloured plastic hand bag from the possession of A.3 and seized (1) one silver chembu having Telugu letters as “Ga Ha’ basava Gowd (2) one silver glass having telugu letters as “Ha Ma’ Bheema Gowd, which were kept in the yellow colour plastic hand bag from the possession of A4 and also seized (1) one silver glass having C.B.R. English letters on it, (2) one silver flower designed sandal cup which were kept in white plastic bag from the possession of A.5. On interrogation, A.1 to A.5 individually and voluntarily confessed about their committed the above offence along with A.6 and gave out the details of their sharing of booty among them. LW.20 drafted the panchanama in the presence of LW.6 and LW.12 in the illumination of gas lights at 07.00 PM on 03.02.2009. (iv) In pursuance of the confessional statement of A.1 to A.5, they preceded to thorny bushes, seized the weapon of offence in white plastic bag in the presence of the mediators. LW.20 drafted the panchanama in the presence of LW.6 and LW.12 in the illumination of gas lights at 07.00 PM on 03.02.2009. (iv) In pursuance of the confessional statement of A.1 to A.5, they preceded to thorny bushes, seized the weapon of offence in white plastic bag in the presence of the mediators. During investigation, A.6 was taken to police custody from Sub-Jail, Adoni and he was interrogated and pursuant to his confession, property was recovered. On opening the plastic cover at the instance of A.6, they found (1) three silver bowels in flower design (2) one small silver bowel in diamond shape design (3) one small silver plate were seized. (v) LW.1-de-facto complainant identified the gold ornaments and silver articles in the test identification parade conducted by mediator LW.11 namely S.C.Krishna Murthy, panchayat secretary, on 04.02.2009 at 10.00 AM, and on 24.03.2009 at 05.00 PM. The Medical Officer who conducted autopsy over the dead body of the deceased opined that the deceased would have died due to shock resulting from asphysixa due to smothering prior to 12 to 16 hours of the P.M. Examination. The chance finger prints of A.5 is found identical with left thumb finger. LW.15 Assistant Director, R.F.S.L., Kurnool found human blood on item No.1, but the blood group could not be determined. Blood is not detected in items 2, 3 and 4. In the identification conducted by Judicial Magistrate of First Class, LW.3 the maid servant identified A.1 to A.5. Hence, the Charge sheet. 4. The charge sheet was taken cognizance for the offence under Sections 147, 457, 342, 396, 412 read with 149 of the IPC and after compliance of necessary formalities under Section 207 of Cr.P.C., the P.R.C. was committed to the Court of Sessions and accordingly, it was numbered as Sessions Case and made over to the learned Additional Sessions judge. 5. On appearance of the accused before the learned Additional Sessions Judge, charges under Section 457 of the IPC against A.1 to A5, under Section 396 of the IPC against A.1 to A6, under Section 412 of the IPC against A1, A.2, A.3, A.4 and A.5 and under Section 342 IPC against A.1 to A.5 were framed and explained to them in Telugu for which they pleaded not guilty and claimed to be tried. 6. 6. The prosecution during the course of trial examined PWs.1 to 15 and got marked Exs.P1 to P28 and further got marked M.O.1 to M.O.33. 7. After the closure of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in for which they denied the incriminating circumstances and they did not adduce any defence evidence. 8. The learned Additional Sessions Judge, on hearing prosecution as well as the defence counsel and after considering the oral as well as documentary evidence, found A.3 and A.5 guilty of the charges under Section 457, 342 and 412 of the IPC accordingly they were sentenced as above. The learned Additional Sessions Judge, found A1, A2, A4 guilty of the offence under Section 411 of the IPC as against the charge under Section 412 of the IPC and convicted and sentenced them to suffer Rigorous Imprisonment for one and half (1½) year and to a pay fine of Rs.500/- in default suffer Simple Imprisonment for one (1) month. The learned Additional Sessions Judge, with regard to the other charges acquitted them of the respective accused. Felt aggrieved of the said conviction and sentence, the unsuccessful A.3 and A.5 filed the present appeal. 9. This Court would like to make it clear as against acquittal of the respective accused for the charge, there is no appeal filed by the prosecution. Apart from this, as against the conviction of A1 and A.2 and A.4 for the charge under Section 411 of the IPC, instead of charge under Section 412 of the IPC, there is no appeal filed either by the prosecution or by A.1, A.2 and A.4. It is brought to the notice of the Court when this Court sought for clarification that by the time of judgment, A.1, A.2 and A.4 were in the custody and they were with imprisonment for a period of one and half (1 ½) years and the remaining period was set off by holding that they shall be released, if they are not required in any other case. Under the circumstances, this Court refrained itself from making any comments as against the conviction of A.1, A.2 and A.4 under Section 411 of the IPC instead of the charge under Section 412 of the IPC. Under the circumstances, this Court refrained itself from making any comments as against the conviction of A.1, A.2 and A.4 under Section 411 of the IPC instead of the charge under Section 412 of the IPC. Hence, the scope of the present appeal is confined to the Section 457, 342 and 412 of the IPC. 10. Now in deciding the present criminal appeal, the points that fall for consideration are as follows: “1. Whether the prosecution before the learned Additional Sessions Judge proved that on during the intervening night of 14/15.01.2009, A.3 and A.5 made lurking the house trespass within the meaning of Section 457 of the IPC? 2. Whether the prosecution proved that during the night of 14/15.01.2009, whether A.3 and A.5 wrongfully confined the deceased in the manner as alleged ? 3. Whether the prosecution, proved that A.3 and A.5 were found in possession of stolen property which was the subject matter of dacoity?. 4. Whether the judgment, dated 23.08.2010 in S.C.No.561 of 2009 on the file of the IV Additional District and Sessions Judge, Kurnool is sustainable under law in so far as the appellants/ A.3 and A.5 is concerned?” 11. Point Nos. 1 to 4: (i) Mr.Sayyad Babu Shaik, learned counsel for the 1st appellant would contend that there is no direct evidence to prove that A.3 and A.5 criminally trespassed in to the house of the deceased and confined the deceased to wrongful confinement. Even as there was no direct evidence to prove the commission, of the offence under Section 395 of the IPC or Section 396 of the IPC, the learned Additional Sessions Judge, exonerated of the appellants of charges as above. However, with erroneous appreciation of the evidence, conviction and sentence was given to them under Section 457 and 342 of the IPC for which there was no substantive evidence. With regard to the charge under Section 412 of the IPC, the learned Additional Sessions Judge relying upon the evidence of the Investigating Officer, though mediators did not support the case of the prosecution, convicted and sentenced the appellants under Section 412 of the IPC, which is not tenable. He would submit that there is no corroboration to the evidence of the Investigating Officer and it is dangerous to give conviction basing on the non-corroborated evidence of the Investigating Officer, as such the appeal is liable to be allowed. He would submit that there is no corroboration to the evidence of the Investigating Officer and it is dangerous to give conviction basing on the non-corroborated evidence of the Investigating Officer, as such the appeal is liable to be allowed. (ii) Sri Kata Samba Siva Rao, learned counsel for the 2nd appellant would rely upon the arguments advanced on behalf of the 1st appellant. 12. Now, I would like to deal with as to whether the prosecution firstly proved the commission of dacoity which was alleged to be occurred in the house of the deceased. 13. As seen from Ex.P1, it was the written report presented by PW.1. Its contents in brief were that, on 14.01.2009 after celebrating Sankranthi festival, he along with wife his and mother by keeping maid servant and his father in the house, went to Bellary. On 15.01.2009 in the early morning, one G.A.Basavana Gowd telephoned him that some thieves committed murder of his father. When they returned back and found dead body of his father and came to know about the occurrence through the maid servant. On verification of the almirahs, they found missing of cash and gold ornaments and silver articles. This is the substance of Ex.P1 with detailed description about the gold ornaments and silver articles that were found to be missing. 14. Coming to the evidence of PW.1, apart from the facts narrated in Ex.P1, with regard to their going to Bellary by keeping maid servant to assist his father and their learning about the incident and coming back, further deposed that they found almirahs broken and found missing of cash of Rs.1,20,000/-, 15 tolas of gold ornaments and about two (2) K.G.s of silver articles. He found injury on the right side neck of his father. He gave written report to the police at about 07.30 or 08.00 AM and Ex.P1 is the report. He participated in the inquest held over the dead body. Thereafter, he identified silver articles in the test identification parade. M.O.9 is gold Nagara (Jada Billa). M.O.10 is Silver Chembu (thumbler) 300 grams. M.O.11 is gold chain containing pearls. M.O.12 is one silver chembu 269 grams. M.O.13 is the another silver chambu of 371 grams. M.O.14 is the silver glass containing letters Bheemanna goud. M.O.15 is another silver glass containing letter GPR. M.O.15 is the silver chembu containing letters Basavana Goud 350 grams. M.O.10 is Silver Chembu (thumbler) 300 grams. M.O.11 is gold chain containing pearls. M.O.12 is one silver chembu 269 grams. M.O.13 is the another silver chambu of 371 grams. M.O.14 is the silver glass containing letters Bheemanna goud. M.O.15 is another silver glass containing letter GPR. M.O.15 is the silver chembu containing letters Basavana Goud 350 grams. M.O.17 is the silver glass contining letters Bheemanna Goud of 70 grams. M.O.18 is the silver glass containing letters GBR of 35 grams. M.O.19 is silver sandle Ginne flower design of 30 grams. M.O.20 is silver small plate of 10 grams. M.O.21 is three silver small plates of 65 grams. M.O.22 is dimond designed silver small plate. 15. PW.2 deposed that he came to know about the occurrence through Chakali Ramalingamma maid servant on 15.01.2009 at 03.30 AM and then he went to the house of his junior paternal uncle and found him dead and later, he informed the incident to PW.1. 16. PW.3 is the person who came to know about the occurrence on 15.01.2009 at about 04.30 AM, through PW.2. On the same day, he went to the house of Narasa Reddy and found his dead body with injuries. He also acted as inquest panchayatdar. He scribed Ex.P1 and there upon PW.1 presented it before the police. 17. PW.4 is mother of PW.1, who supported the evidence of PW.1 with regard to the incident occurred during the intervening night of 14/15.01.2009 and her evidence is in similar as that of PW.1. 18. Coming to the testimony of PW.5, the maid servant i.e., girl aged about thirteen (13) years, her evidence in substance is that on 14.01.2009 PW.1 and his wife and PW.4 left to Gajjahalli for Bellary. PW.1 asked her to sleep as his father Narasa Reddy was alone. Narasa Reddy slept on a cot and she slept on the ground floor in the same room. At mid night i.e., after 12.00 in the night, she heard some sound of zinc sheets and she found five (5) persons approaching Narasa Reddy and they tied hands and legs of Narasa Reddy with ropes and asked him where almirah keys were kept. Those persons were armed with knives. She knows Kannada. Reddy told them that he had no keys. Then, they came to her in tied her hands and legs with ropes to the bench. Those persons were armed with knives. She knows Kannada. Reddy told them that he had no keys. Then, they came to her in tied her hands and legs with ropes to the bench. She heard sound of breaking the beeruva and left with booty. Thereafter, she untied the ropes slowly and went to the house of PW.2 and informed the same. PW.2 came to the house and saw Narasa Reddy died. He intimated the fact to PW.1 by phone. As it was dark night, she could not identify those persons. She saw those persons in the test identification parade and identified them in the test identification parade. Presently she cannot identify them. The prosecution declared her as hostile and during her cross examination she denied that she is deposing false. 19. It is to be noted that though the prosecution examined PW.12 – S.Narayana concerned Judicial Magistrate of First Class, who conducted test identification parade involving A.1 to A.5 under Ex.P17-test identification proceedings, but in the absence of the PW.5 identifying the accused it cannot read in substantive evidence. The evidence of PW.12 is that Pw.5 identified A.1 to A.5 in the test identification parade. It is well settled that the test identification parade cannot be read substantive evidence unless the witness identified them in the Court. Though PW.5 testified that five (5) persons entered into the house and committed dacoity, but the evidence is missing with regard to identity particulars. But the evidence is very clear that five (5) persons committed the offence which amounts to decoity. It is to be noted that PW.1 testified that he identified M.Os., in the identification parade in the presence of a Mahazar witness. Nothing could be brought out during the course of cross examination of PW.1, so as to disbelieve the testimony in so far as identification of property is concerned. Apart from this, the person who conducted identification period involving PW.1 to identify the properties was examined as PW.9. According to him, at the instructions of the police, on 04.02.2009, he conducted identification parade under Ex.P10. Again on 21.03.2009 also he conducted identification parade under Ex.P11. PW.1 identified the properties under M.O.1 to 19 and M.O.20 to M.O.22. Nothing could be brought out in the cross examination of PW.9 to disbelieve his testimony. 20. According to him, at the instructions of the police, on 04.02.2009, he conducted identification parade under Ex.P10. Again on 21.03.2009 also he conducted identification parade under Ex.P11. PW.1 identified the properties under M.O.1 to 19 and M.O.20 to M.O.22. Nothing could be brought out in the cross examination of PW.9 to disbelieve his testimony. 20. By virtue of the evidence of the above, it is clear that five (5) persons entered into the house of the deceased and committed dacoit. So, the factum of commission of the dacoity was proved by the prosecution. Though the identity of the culprits was not established, but the prosecution proved the commission of dacoity by proving that five (5) persons participated in the occurrence. 21. It is to be noted that when there is no substantive evidence speaking that A.3 and A.5 participated in the attack against the deceased by criminally trespassing and further wrongfully confining him. Absolutely, there is no convincing evidence to establish the charges under Section 342 and 457 of the IPC. To sustain a conviction under the above provisions of law, identity of the persons who participated in the commission of the offence has to be established. The evidence adduced by the prosecution is missing in this regard. Hence, evidence on record is not at all sufficient to establish the charges under Section 342 and 457 of the IPC. 22. Though the prosecution examined PW.11, the finer print expert, his evidence as against A.3 and A.5 is that the chance prints marked C, H and J are found identical with right thumb and right ring and right index finger print impression respectively on the finger print slips of Nageswara Rao (A.3). The chance finger print mark F is identical with left thumb impression on the finger print slips of Ganganna (A.5). Ex.P15 is the opinion given by him. Ex.P16 is the developed photographs of A.3 and A.5. 23. His further evidence in chief examination is that, he developed nine (9) chance finger prints on Royal Challenge liquor bottle (two prints), Perfume card box (one print), on wooden pole and door latch (two chance prints) and on two silver plate (3 prints developed) and they are A, B, C, D, E, F, G, H and J. In cross examination, he deposed that Royal Challenge liquor bottle, and perfume cad box were in the hall. He deposed that he did not find any chance prints on the western compound gate. He did not develop any chance prints over almirahs and trunk boxes. He deposed that finger prints looks alike, but they are not identical and they cannot give any opinion in that regard unless they compare it. 24. By virtue of the above answers, the evidence of PW.11 is week in nature. There would have been a probability for the chance finger prints of A.3 and A.5 on the key points of the house i.e., entrance of the door and trunk boxes and almirahs if they entered in to the house. Hence, evidence of PW.11 is of no use to prove the charges under Section 342 and 457 of the IPC against the offence. 25. Coming to the charge under Section 412 of the IPC, in so far as the present appellants are concerned, the prosecution examined PW.6 who is V.R.O. Holagunda. He deposed that on 03.02.2009, S.I. of Police, Holagunda summoned him to the police station. He along with Srinivasa Murthy, V.R.O. Gajjhalli Village went to the police station. They accompanied the Inspector of Alur. They proceeded towards Adoni and reached near Rowjee Petrol bunk. They found five (5) or six (6) persons near the petrol bunk at about 07.00 PM. When they tried to escape, police caught hold of them. Each of them were carrying one plastic bag each. They opened the bags at the instance of C.I. of Police. On verification of those bags, some gold and silver articles were found. C.I. of Police arrested those persons and seized the ornaments from their possession under mahazarnama. He cannot now identify those five (5) persons arrested by the police as it was night, but he can identify those articles seized from them M.O.1 to M.O.19 are the said articles. M.O.27 to M.O.31 are the five plastic bags. M.O.32 is fifty rupee note. Arrest of those persons and seizure were under a cover of Ex.P4 mahazar nama. This is the relevant evidence of in so far as the arrest and seizure is concerned. As the witness did not speak of the identity of them, prosecution declared him as a hostile and during the cross examination by Additional Public Prosecutor, he deposed that due to lapse of time, he forgot to identify the persons arrested by the police. This is the relevant evidence of in so far as the arrest and seizure is concerned. As the witness did not speak of the identity of them, prosecution declared him as a hostile and during the cross examination by Additional Public Prosecutor, he deposed that due to lapse of time, he forgot to identify the persons arrested by the police. In so far as his participation as a mahazar witness to the arrest and seizure is concerned, his evidence remained unshaken during the cross examination. So, his evidence establishes the fact that police arrested five (5) persona and made recovery of gold articles and silver articles under mahazar nama. 26. It is to be noted that simply because PW.5 could not identify the persons who were arrested by the police, the case of the prosecution can be thrown out. There is evidence of PW.14 the Inspector of Police who conducted investigation in this case, this evidence in so far as the arrest and seizure is concerned relating to the present appellants, he deposed that on 03.02.2009 at 07.00 PM, he proceeded to Adoni along with panchayatdars on information. They reached Rowjee petrol bunk, Adoni and found five (5) persons on the side of road and they tried to escape on seeing the police. He and his staff caught hold of them. They disclosed their identity as that of A.1 to A.5. They found properties in connection with this case in their possession and seized from them under the cover of Ex.P4 mahazar nama. He testified that he seized M.O.27 from the possession of A.1 in which he found M.O.9, M.O.10 and M.O.32. He further found M.O.28 in possession of A.2 and on further search of M.O.28, he found M.O.11, M.O.12 and seized the same. He searched M.O.29 in possession of A.3 and on further search of it, he found M.O.14, M.O.15 and M.O.13 and he seized the same. He found M.O.30 in possession of A.4 and on further search of it, he found M.O.16, M.O.17 and seized the same. He found M.O.31 in possession of A.5, on further search, found M.O.18 and M.O.19 and he seized those articles in the presence of mediators. This is the evidence of PW.14 in so far as recovery of the so called stolen articles from the possession of A.3 and A.5 is concerned. 27. He found M.O.31 in possession of A.5, on further search, found M.O.18 and M.O.19 and he seized those articles in the presence of mediators. This is the evidence of PW.14 in so far as recovery of the so called stolen articles from the possession of A.3 and A.5 is concerned. 27. During the course of cross examination, he denied that he did not effect any recovery from the accused and that he made a false case. Except putting suggestions, there remained nothing during the cross examination of PW.14 the Investigating Officer to disbelieve his evidence. His evidence has corroboration with regard to the participation of PW.6 as amahazar witness. There is consistency between the evidence of PW.6 and PW.14 in so far as the arrest of five (5) persons and the seizure is concerned. Though PW.6 could not identify the accused, but there is categorical evidence of PW.14 Investigating Officer with regard to the arrest of A.1 to A.5. As seen from the M.O.13, M.O.14 and M.O.15, they are silver chembu, silver chembu containing letters Bheemanna Gowd. and silver glass containing letter GPR respectively. As seen from M.O.18 and M.O.19, they are silver glass containing letters GBR and silver sandle Ginne flower design respectively. 28. There was a whisper in Ex.P1 about missing silver articles also. PW.1 identified these M.O.13 to M.O.15 and M.O.18 and M.O.19 in the test identification parade. As this Court already pointed out evidence on record prove the commission of dacoity. So, the prosecution categorically established the commission of the dacoity and arrest of A.3 and A.5 coupled with the seizure. This Court has no reason to disbelieve the testimony of PW.14 Investigating Officer. 29. In the light of the above, this Court is of the considered view that the prosecution categorically established the commission of dacoity though it did not establish identity of persons who committed the offence of dacoity. But it could establish the participation of five (5) persons in the commission of dacoity. To sustain conviction for the charge under Section 412 of the IPC, the prosecution has to establish the commission of dacoity. Section 412 of the IPC deals with receiving of the stolen property involved in the commission of dacoity. Though the identity of the persons was not proved by the prosecution, but the factum of dacoity was proved. To sustain conviction for the charge under Section 412 of the IPC, the prosecution has to establish the commission of dacoity. Section 412 of the IPC deals with receiving of the stolen property involved in the commission of dacoity. Though the identity of the persons was not proved by the prosecution, but the factum of dacoity was proved. Hence, the evidence on record squarely proves charge against A.3 and A.5 under Section 412 of the IPC. 30. In my considered view, this Court has no reason to differ with the sentence of learned Additional Sessions Judge in so far as the charge under Section 412 of the IPC. However, as pointed out, there is no evidence to believe the charges under Section 342 and 457 as against the present appellants. In the light of above, I am of the considered view that the judgment of the learned Additional Sessions Judge against the present appellants in so far as the findings under Sections 342 IPC and 457 of the IPC is concerned, it is liable to be interfered with and the judgment in so far as the charge under Section 412 of the IPC is concerned, it is liable to be confirmed. Points are answered accordingly. 31. In the result, the criminal appeal is partly allowed, setting aside the judgment dated 23.08.2010 in S.C.No.561 of 2009 on the file of the IV Additional District and Sessions Judge, Kurnool, in so far as the conviction and sentence under Section 342 and 457 is concerned and in so far as conviction and sentence of the A.3 and A.5 i.e., appellant herein for the charge under Section 412 of the IPC is concerned, it shall stand confirmed and accordingly the appeal in so far as charge under Section 412 of the IPC is concerned shall stands dismissed. They are entitled to refund of fine amount if paid under Section 457 of the IPC, after completion of the appeal time. 32. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 27.12.2023 and on such certificate, the trial Court shall take necessary steps to carry out the sentence imposed against the appellants/A.3 and A.5 and to report compliance to this Court. 33. 32. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 27.12.2023 and on such certificate, the trial Court shall take necessary steps to carry out the sentence imposed against the appellants/A.3 and A.5 and to report compliance to this Court. 33. The Registry is directed to forward copy of the judgment along with record to the trial Court on or before 27.12.2023. Consequently, Miscellaneous Applications pending, if any, shall stand closed.