JUDGMENT
J.N. Patel, J.
1. The appellants have challenged their conviction and sentence passed by the learned Sessions Judge, Chandrapur, vide judgment and order dated 18-3-1997, under which the appellant Chakrapani, Ashok, Wasudeo and Babu alias Prabhakar came to be convicted for having committed offences under Section 395 read with Section 398, IPC and were sentenced to suffer R.I. for 7 years and to pay fine of Rs. 5,000/- in default to suffer R.I. for one year. Appellant Rajababu and Mallesh came to be convicted for having committed an offence punishable under Section 411 of I.P.C. and were sentenced to suffer R.I. for two years each. They came to be acquitted of the charge under Section 395 read with Section 398, I.P.C. One of the co-accused in the case namely Laxman was acquitted of all the charges.
2. Appellants Rajababu s/o Buchayya Adluri and Mallesh s/o Ankush Gundetti have filed Criminal Appeal No. 102 of 1997, appellant Wasudeo s/o Vyankuji Kohapare, has filed Criminal Appeal No. 144 of 1997, appellant Chakrpani s/o Laxman Siddhala has filed Criminal No. 165 of 1997 and appellants Ashok s/o Bhumayya Kudali and Babu alias Prabhakar s/o Rajyellayya Buka have filed Criminal Appeal No. 194 of 1997, to challenge their conviction and sentences. All these appeals can be conveniently disposed of by this common judgment.
3. According to the prosecution, the complainant Vyankati Pocham Kampelli (who died during the pendency of the trial) was retired foreman and was residing at Rayatwari Colliery, Wasekar Layout, Chandrapur, along with his two sons, daughter-in-law and wife Narsamma. On 4-8-1994, after the family had their meals in the night and went to sleep, the persons who were present in the house, were his wife Narsamma (P.W. 9) his son (P.W. 1), daughter-in-law Rubirani wife of Hemant (P.W. 8). At about 11 O’clock in the night, the complainant heard sound of knocking of his door and, therefore, he opened the door and asked who was there. The persons who were found outside the door told him that they had come from Kagaznagar to give some message. On this, Vyankati opened the door and about five persons entered their house. When he enquired from them about the news they told him that they were Annas and asked him to give an amount of Rs. 2,000/- and that they would go. But as the complainant expressed that he had no money, one of them caught hold of the complainant by his shoulder. By this time all the members of the family had woken up. Amongst the five persons, three were holding knives in their hands and the persons who had caught hold of Vyankati, had a small size gun which was kept concealed at his waist and he was threatening them by taking out the gun at intervals. One of them inspected all the articles kept in two rooms, but as they did not get anything, they demanded the keys of the almirah from his wife Narsamma and with the help of the keys, they opened the show case almirah which was kept in the third room and from it they took out and opened a tin box containing ornaments belonging to the family of the following description :
1. Four golden bangles having simple design weighing 5 tolal valued at Rs. 25,000-.
2. Two golden bangles having design of bricks weighing 4 tolal valued at Rs. 20,000/-.
3. Golden Phoe Har (a kind of necklace) having four folds weighing 5 tolas valued at Rs. 25,000/-.
4. One golden chain having golden locket, weighing one tola valued at Rs. 5,000/-.
5. Two golden chains each weighing 1 tola, thus total two tolas valued at Rs. 10,000/-.
6. One golden chain weighing 1 and 1/2 . tolas valued at Rs. 7,500/-.
7. Three pairs of Birya (ear ornaments) having pendants, each pair weighs 1/2 tola, thus total weight 1 and 1/2 tolas, valued at Rs. 7,500/-.
8. One golden ring having longish red stone, weighing 1/4 tola, valued at Rs. 1250/-.
9. One golden ring weighing 1/4 tola, valued at Rs. 1250/-.
10. Three small golden Nathni (Nose ornaments) weighing 1/4 tola valued at Rs. 1250/-.
11. Two golden earrings having white bead, weighing 1/4 tola, valued at Rs. 1250/-.
12. Small golden ring weighing 2 grams, valued at Rs. 200/-.
13. Golden ring having Navrang stone, weighing V2 tola valued at Rs. 2500/-.
14. One broken golden chain weighing 1 and 1/2 tolas valued at Rs. 7,500/-.
15. Broken pieces of golden chain weighing one tola valued at Rs. 5,000/-.
16. Silver Kamarpatta (ornament for the waist) having hook, weighing 26 tolas, valued at Rs. 2080/-.
17. Silver waist-string (Kardoda) weighing 25 tolas valued at Rs. 2,000/-.
18. Silver bracelets weighing 12 tolas valued at Rs. 960/-.
19. Silver chain weighing 2 tolas valued at R. 160/-.
20. Silver chain weighing 3 tolas valued at Rs. 240/-.
21. Two pairs of silver anklests having a design of Graid weighing 20 tolas valued at Rs. 1600/-.
And, therefore, according to the complainant Vyankati, five unknown persons robbed him and took away gold ornaments weighing 24 tolas and 2 grams valued at Rs. 1,20,200/-and silver ornaments weighing 88 tolas valued at Rs. 7,040/ – and in all property valued at Rs. 1,27,240/- was taken away by the culprits. While leaving the house, they threatened them that they were Annas and if they would disclose the said incident to anybody, they would kill the complainant and cut them into pieces. According to the complainant and his family members, the persons who committed dacoity at their place, were speaking Hindi in Telgu tone and that they would be able to identify these persons. The gold ornaments which were stolen, were got prepared from one Harijeevan Uddhoji Sarafa Line, Chandrapur and the silver ornaments were prepared by Telgu goldsmith at Rajura Colliery, Tahsil Wani, District Yavatmal and that the wife of the complainant and other members of the family can identify the ornaments.
4. According to the prosecution, the complainant Vyankati and his family members did not lodge any report with the police as they were threatened by the dacoits in the name of Naxalites.
5. It so happened that the Police arrested the original accused Nos. 1 to 5 namely Chakrapani, Rajababu, Ashok, Laxman and Mallesh, and in the course of their interrogation, the police came to know that these persons along with three others, have committed dacoity at the house of Vyankati in the night of 4-8-1994. Immediately after the arrest of the appellants-accused, when the police made enquiries from Vyankati and his family members, Vyankati lodged a report, of the incident of dacoity. The suspects were then put up in the test identification parade and the complainant Vyankati and his family members namely Hemant (P.W. 1), Rubirani (P.W. 8) and Smt. Narsamma (P.W. 9) identified the suspects in the test identification parade, as the persons who had come to their house and committed dacoity and stolen away gold and silver ornaments in the night of 4-8-1994. Thus, the accused were arrested and put up for trial. The complainant and his family members have identified Chakrapani, original accused No. 1, Ashok, original accused No. 2, Wasudeo, original accused No. 6 and Babu alias Prabhakar, the original accused No. 7. The complainant and his family members failed to identify the appellant Rajababu, the original accused No. 2 and Mallesh, the original accused No. 5 and Laxman, the original accused No. 4.
6. After conducting the test identification parade and being satisfied about the involvement of the appellant-accused, the Investigating Agency carried out further investigation and was successful in recovery of 70 grams ingot gold, 2 gold rings and one piece of silver weighing 50 grams at the instance of Chakrapani, the original accused No. 1. At the instance of appellant-Rajababu, the original accused No. 2, they have recovered piece of gold weighing 10 grams 250 miligrams and a piece of silver weighing 100 grains. At the instance of original accused No. 3 Ashok, a piece of silver weighing 100 grams, two gold rings were recovered. At the instance of the appellant Mallesh, the original accused No. 5, they could recover 17.400 grains gold and 158 grams of silver and at the instance of appellant-Wasudeo, the original accused No. 6, 10 grams of gold and 100 grams of silver were recovered. At the instance of the appellant-Babu alias Prabhakar, the original accused No. 7, silver sticks weighing 59 grams were recovered. The Police were not successful in arresting one of their associates by name Anjayya who is reported to be still absconding.
7. After conclusion of the investigation, the Police filed a charge sheet in the Court of Judicial Magistrate, First Class, Chandrapur, vide Regular Criminal Case No. 102 of 1996, who committed the case to the Court of Session for trial. The learned Sessions Judge on 17-12-1996 framed the charge against all the accused Nos. 1 to 7 for having committed offence under Section 895, I.P.C. and also under Section 395 read with Section 398, I.P.C. All the appellants-accused pleaded not guilty and submitted that previously they were working as informant for Police against the Naxalites and one of their friends namely Purushottam who was also working as informant against Naxalites, was attacked by the Naxalites and, therefore, they had stopped giving information to the Police because of which the Police got annoyed and falsely implicated them in this case. They have stated that they were shown to identifying witnesses before they were taken to the Tahsil Office for holding the test identification parade and that the alleged recovery of the property is not made on the basis of the information given by them.
8. In support of their case, the prosecution examined in all 14 witnesses. The complainant Vyankati Pocham Kampelli having expired, remaining members of his family, namely his son Hemant (P.W. 1), Rubirani wife of Hemant (P. W. 8) and Narsamma (P. W. 9) wife of the complainant Vyankati, who are the victim of the incident, were examined. The prosecution also examined various witnesses as panchas as regards the recovery of gold and silver ornaments at the instance of the appellants-accused, but they all turned hostile. The prosecution examined Shri Vishwanath s/o. Upasrao Bagade who conducted the test identification parade in the case. The learned Sessions Judge found that the prosecution has proved that on 4-8-1994 at about 11 a.m., dacoity was committed by five persons at the house of Vyankati Kampelli, in which gold and silver ornaments worth Rs. 1,27,240/- were taken away. He also found that the prosecution has proved that the accused Nos. 1,3,6 and 7 along with one absconding accused have committed offence of dacoity whereas in case of original accused Nos. 2 and 5, he found them guilty of the offence of receiving the stolen property punishable under Section 411 of I.P.C. and convicted and sentenced them accordingly.
9. We have given patience hearing to the learned counsel for the appellants as well as the learned A. P. P. in the matter. Common ground urged by the learned counsel for the appellants who are convicted for having committed offence punishable under Section 395 and 395 read with Section 398 of I.P.C. is that the test identification parade held and conducted by Shri Bagade (P. W. 10) was without following the procedure and guidelines as laid down by the High Court which makes holding of the test identification parade doubtful. It is submitted that the suspects were shown to the identifying witnesses before they were put up in the test identification parade and, therefore, only a farce was made of holding test identification parade. It is also their case that the identification of the suspects by the identifying witnesses is unreliable for the reason that there has been a long laps of time between the date of occurrence of the crime and the arrest of the suspects which would fade away the memory of the identifying witnesses and it was almost impossible for the identifying witnesses to have remembered and correctly identified the suspects in the test identification parade. The learned counsel have relied upon the cases of Manepalli Ankjaneyulu v. State of A.P. 1999 Cri LJ 4375 (Andh Pra); Vilas Vasartrao Patil v. State of Maharashtra (1997) 1 Mah LJ 27; Habal Shaikh v. The State 1991 Cri LJ 1258 (Cal); Govind v. State of U.P. 1996 Cri LJ 445 (All); Chaman v. State of U.P. and Tahir Mohammad, Kamad Girendra Singh v. State of Madhya Pradesh .
10. The learned counsel appearing for the appellants further urged that the prosecution has miserably failed to prove the recovery of the properties from the respective appellants as none of the panch witnesses have supported the prosecution case and in absence of any independent evidence led by the prosecution to support the alleged recoveries made at the instance of the accused, makes the prosecution case unreliable and untrustworthy. It is submitted that the prosecution has relied upon the evidence of investigating officer for proving various recoveries against the appellants-accused which has been relied upon by the trial Court to arrive at a finding that the appellants-accused are the receiver of the stolen property. It is submitted that the Investigating Officer being interested person and responsible for prosecuting the appellants, his sole testimony to prove various recoveries would be most unsafe for convicting the appellants. It is further submitted that except for two gold rings recovered from the appellant-accused Chakrapani, none of the other items of gold and silver were identified by the prosecution witnesses as the stolen propety and, therefore, whatever evidence relating to recovery of gold and silver ingots or pieces relied upon by the prosecution, does not corroborate its case to justify their convictions.
11. It is also submitted by the learned counsel for the appellants that the prosecution has miserably failed to explain the long delay of 16 months in filing of the First Information Report. It is submitted that though the incident had occurred on 4-8-1994, Vyankati or any member of his family did not lodge any report with the Police and it is only on 18-12-1995, the First Information Report came to be lodged by Vyankati and that too after coming to know that persons who committed dacoity at his house, are arrested. This, according to the learned counsel for the appellants, falsifies the prosecution case that any dacoity was committed at the residence of Vyankati on 4-8-1994, otherwise there is no reason why Vyankati did not lodge the report immediately after the incident particularly when they were residing in the town only 1 km. away from the police station. It is submitted that the explanation tried to be put forth that the culprits were Naxalites and they prevented the complainant from lodging the F.I.R., is accepted by the Court and the trial Court has taken upon itself to justify the delay in lodging the F. I. R. which is contrary to the decision reported in Jamiruddin Molla v. The State 1991 Cri LJ 356 (Cal). It is submitted that the Court cannot take itself to explain the delay in lodging the F. I. R. as the burden rests on the prosecution to do so. It is, therefore, submitted that the non-explanation by the prosecution of delay in lodging F. I. R. is fatal to the prosecution case and rather goes to show that the prosecution case is concocted and the appellants have been made a scapegoat as they stopped cooperating with the Police in giving information about the Naxalites.
12. In the alternative it is also canvassed by the learned counsel for the appellants that if at all the Court finds that the prosecution has established its case against the appellant-accused, then the trial Court erred in convicting the appellants-accused for having committed offence punishable under Section 395 and 395 read with Section 398 of I.P.C. It is submitted that on account of having committed offence under Section 395 and Section 395 read with Section 398, the trial Court found only accused Nos. 1, 3, 6 and 7 guilty and as the number of the persons convicted for having committed dacoity, is less than five, the conviction under Section 395 or Section 395 read with Section 398 of I.P.C. cannot sustain as the persons less than five in number cannot commit a dacoity. In support of this contention, the learned counsel for the appellants relied upon the case of Ram Lakhan v. State of U.P. . It is, therefore, submitted that at the most the appellants-original accused Nos. 1, 3, 6 and 7 can be convicted for having committed offence under Section 392 of I.P.C.
13. To sum up, the learned counsel for the appellants submitted that the appellants-accused deserve to be acquitted at least by extending them benefit of doubt as the prosecution case rests on weak evidence in the form of identification of the suspects and recovery of stolen property at their instance which is not established beyond reasonable doubt.
14. Mr. Deopujari, the learned A. P. P. submits that insofar as the contention of the appellants-accused who has been convicted for having committed offence under Sections 395 and 395 read with Section 398 of I.P.C. is concerned, though the trial Court found that only 4 persons were guilty of committing dacoity, it cannot be overlooked that one of the persons who had accompanied the dacoits and who has been identified as Anjayya, is absconding and, therefore, it would be erroneous to contend that the trial Court has convicted only four for committing dacoity. It is submitted that the number of persons who have committed dacoity were at least five as the witnesses have specifically stated that five persons have entered their house though according to the prosecution in all there were eight persons who had gone to the house of Vyankati for committing dacoity and out of them only five have entered the house and the other three remained outside. Therefore, according to the learned A. P. P., the case relied upon by the learned counsel for the appellants in order to challenge the conviction of the appellants for dacoity, cannot be accepted. It is submitted that in the case of Saktu v. State of U.P. , this contention has been dealt by the Apex Court, which found that even though the number of persons convicted by the Court is less than 5, but it is found that five or more persons have committed the offence which would be commission of dacoity and the conviction of less number of persons by the Court would not alter the offence from Section 395 of I.P.C. to one under Section 392 of I.P.C.
15. It is the contention of the learned A. P. P. that the prosecution has brought on record and sufficiently explained the delay in filing the First Information Report by Vyanakti. It is submitted that unfortunately the complainant Vyankati having died, otherwise the prosecution would have been able to bring on record the factual delay in lodging the F. I. R. It is submitted that the contention of the learned counsel for the appellant that the Court has taken upon itself to explain the delay, cannot be upheld as the prosecution has examined Hemant (P. W. 1) to explain the delay in lodging the First Information Report, read with the First Information Report, which corroborates the evidence of the witnesses that the dacoits after committing the dacoity, had threatened them of dire consequences by disclosing that they were Naxalites and, therefore, the trial Court was quite justified in taking the judicial notice of the fact as Chandrapur district is infected with Naxalites who are active in the area and known for their ruthlessness. No common man would dare to lodge report against them and Vyankati being the family member could not gather courage to lodge a report with the Police Station though the Police Station was within a distance of 1 km. It is submitted that it is only on coming to know from the Police that certain persons are arrested who are suspected to be involved in that dacoity at his residence and are not Naxalites, that Vyankati could dare to lodge the complaint and, therefore, it cannot be said that 16 months’ delay in lodging the F. I. R. remained unexplained and proves to be fatal to the prosecution case.
16. As regards the identification of the suspects by the identifying witnesses, it is submitted by the learned A. P. P. that the investigating agency have promptly conducted the test identification parade immediately after the arrest of the suspects in the crime. It is submitted that the appellants have contended that while holding the test identification parade, the procedure or guidelines were not followed, cannot be accepted as the prosecution has examined Mr. Bagade (P. W. 10), who has conducted the test identification parade and the evidence before the Court goes to show that he has taken all the necessary precautions to see that the test identification parade is held fairly. In cross-examination of this witness or even the identifying witnesses, nothing has been brought on the record to show that the suspects were shown to the witnesses before they were taken to the identification parade. It is further submitted by the learned A. P. P. that though the suspects after their arrest, were taken to the Court for remand, were not covered by Burkha or taken under cover, this by itself would not make the identification of the suspects by the witnesses doubtful because it is not the case of the appellants that they were shown to the identifying witnesses while they were taken to the Court for remand. It is submitted that it is only at the stage when their statements under Section 313 of Cr.P.C. were recorded by the Court, that the appellants came with an excuse that they were shown to the identifying witnesses before they were put in the test identification parade. Therefore, according to the learned A. P. P., this contention of the appellants cannot be accepted. As regards the delay in holding the test identification parade, it is submitted that the delay cannot be attributed to the investigating agency as the investigating agency immediately after their arrest have put them in the test identification parade. It is submitted that the delay is on account that the culprits were arrested after a lapse of about 16 months. It is submitted that this will also not affect the authencity of the prosecution case insofar as it relates to the identification of the suspects in the identification parade as well as before the Court as the prosecution case clearly reveals that the culprits were in the house of the complainant Vyankati for sufficiently long time and the witnesses had more than enough opportunity to see them and the fact that they were robbed by these culprits would retain in their memory the features of the culprits which had helped them in identifying the suspects. In support of the contention, the learned A.P.P. relied upon the case of Sanjeevan v. Kerala State 1994 Cri LJ 1316 (Ker), with emphasis in para (15) and Robin Bapari v. The State 1986 Cri LJ 381 (Cal).
17. Mr. Deopujari, the learned A. P. P. submits that it is common knowledge that the witnesses concerned with the offences, are not only hesitant to come forward and help the Police, but also are reluctant to support the prosecution and it is clear from the fact that all the panch witnesses in the case have turned hostile. It is submitted that the fear of the accused in the minds of the witnesses is the reason that witnesses in the case have not supported the prosecution. It is submitted that the manner in which the offence was committed, that the appellants were armed with the deadly weapons and the dacoity, probably discouraged these panch witnesses from supporting the prosecution case and, therefore, in the given set of circumstances, the prosecution had no option but to establish its case relating to the recovery of gold and silver at the instance of the accused persons by examining the Investigating Officer. It is submitted that the Court has rightly believed the Investigating Officer on the point of recoveries of gold and silver ingots/pieces at the instance of the appellants-accused as part of the stolen properties. It is submitted that the prosecution has presented its case in such a natural manner that the Court can take judicial notice of the fact that normally robbers would not retain the stolen properties in the same condition and that is why what has been recovered is in the form of melted ornaments. It is submitted that the appellants have denied the recovery on their instance and disowned the seized gold and silver ingot pieces. This fortifies the case that the Investigating Officer would not spend from his pocket and invest for procuring such gold and silver ingot pieces merely to implicate the appellants, and, therefore, there is no reason why the Investigating Officer should not be believed in by this Court insofar as the recovery of items at the in stances of the appellants is concerned. Mr. Deopujari also reported in the case of Mohan Lal v. Ajit Singh .
18. Mr. Deopujari, the learned A. P. P., therefore, submits that as the prosecution has proved the case against the appellant-accused by examining the witnesses who have identified the appellants-accused as the culprits who committed the dacoity at their residence, corroborated by the recovery of gold and silver ingots pieces of ornaments at their instance, is sufficient to bring home the guilt against the appellants-accused and the conviction and sentence does not call for any interference.
19. Let us first examine the evidence against each appellant-accused showing their complicity in the crime.
Chakrapani son of Laxman Siddhala has been convicted for having committed offence under Section 395 read with Section 398 and sentenced to suffer R. I. for 7 years and to pay a fine of Rs. 5,000/-. The nature of evidence led by the prosecution in support of proving the charge against him relates to his identification as one of the dacoits by the witnesses and recovery of stolen property. The appellant-Chakrapani came to be arrested in Crime No. 395/95 on 19-12-1995 as he was suspected to be involved in the dacoity committed at the house of Vyankati, the Investigating Officer decided to hold a test identification parade for which a letter of request was sent to Shri Vishwanath Upasrao Bagade (P. W. 10). The test identification parade then came to be conducted by Shri Bagade, who was at the relevant time Tahsildar and Executive Magistrate posted at Chandrapur. Mr. Bagade held the test identification parade in the Tahsil Office. The appellant-accused Chankrapani was brought to Tahsil Office after the identifying witnesses were made to sit in a separate room. After the appellant was brought, he was taken to the room where the parade was to be held and was made to stand amongst five dummies. The test identification parade was conducted in presence of two panchas. First Hemant (P. W. 1) was called to witness the parade. He identified the suspect who was standing at Sr. No. 5 by touching him as the person who had come to his house. After Hemant (P. W. 1) identified the suspect in the parade, the complainant Vyankati, since deceased, was called. He was able to identify the suspect Chakrapani by touching him. Similarly Rubirani (P. W. 8) was called to witness the parade. She also identified the suspect. In the last Narsamma wife of Vyankati (P. W. 9) was called and she identified the suspect Chakrapani as an accused. Shri Bagade prepared a memorandum to this effect.
20. When the case came up for trial, the complainant Vyankati had already expired. Therefore, the prosecution examined Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9) as eye-witnesses to the incident. Before the Court, all these witnesses have identified Chakrapani as the person who had come to their house and committed dacoity. Therefore, the prosecution could established that Chakrapani participated in committing the offence of dacoity at the residence of Vyankati.
21. In addition to the evidence of identification led by the prosecution, the prosecution has also been able to lead the evidence for recovery of stolen ornaments at the instance of the appellant-accused Chakrapani. The first recovery relates to 7 tolas of gold in the form of ingot at the instance of the appellant-accused Chakrapani, vide Exh. 67 which came to be seized under the seizure memo Exh. 68 from the shop of one Prakash Pallela situated near Ashok Cinema Talkies. The jeweller who was present in the shop by name Prakash Kotayya Pallela had identified the appellant-accused as the person from whom he had purchased gold weighing 7 tolas about 1 and 1/2 years ago and gave to the Police gold weighing 7 tolas. The pancha in the case namely Sadashio Aaoba Jadhao turned hostile when examined in the Court and, therefore, memorandum Exh. 67 and the seizure panchnama Exh. 68 came to be proved by the prosecution by examining P. S. I. Premraj Wasudeo Lanjewar. P. S. I. Lanjewar has stated in the Court that in presence of panchas, Chakrapani stated that he had melted some gold ornaments and sold to one goldsmith of Godavarikhani and had led the police party to the shop of Prakash Kotayya Pallela who admitted to have purchased piece of gold from the accused and produced the same before him which he seized under the seizure panchnama Exh. 68. The appellant-accused is supposed to have led the police party to his own house consisting of two rooms situated in the locality for Beghar and produced articles concealed by wrapping in the plastic between the tiles and wooden poles at the corner of the wall towards south in the kitchen. These articles were one gold ring weighing 4 grams valued at Rs. 2,000/-, one gold ring weighing 1 gram 400 miligrams valued at Rs. 700/- and one piece of silver weighing 50 grams valued at Rs. 400/-, which came to be seized under the panchnama Exh. 79. Two gold rings articles 5 and 6 have been duly identified by Hemant (P. W. 1) and Rubirani (P. W. 8) as belonging to them. In respect of this seizure also the pancha-Kashinath Salunke (P. W. 6) turned hostile and it was proved by examining P. S. I., Lanjewar.
22. The appellant-accused Rajababu son of Bachayya Adluri is convicted for having committed an offence under Section 411 of I.P.C. by the trial Court, as the only evidence led by the prosecution against him is in the form of recovery of property at his instance of which the memo came to be written which is Exh. 70 and the appellant-accused is supposed to have led the police party to Somnalhpura, Rajura, where he is residing with his brother Hanumant Adluri and took out one gold piece weighing 10 gms. 250 miligrams from the cotton pillow kept on the cot in the second room which came to be seized under the Panchnama Exh. 73. He also recovered one piece of impure silver like that of stick weighing 100 grams which was kept wrapped in the plastic beneath the drum in the said house, which was seized under the panchnama Exh. 78. The panch witness Kashinath Salunke (P. W. 6) turned hostile and the prosecution could prove the recovery from the evidence of P. W. 12.
23. Ashok son of Bhuinayya Kudali is convicted for having committed offence under Section 395 read with Section 398 of I.P.C. In order to prove its case against the appellant-accused Ashok, the prosecution has relied upon his identification in the test identification parade as well as before the Court as one of the persons who was member of the gang of dacoits who committed dacoity at the house of Vyankati and the recovery of 100 grams of silver from his house as part of stolen property.
24. The prosecution has examined Shri Bagade (P. W. 10) Tahsildar and Executive Magistrate, who conducted the test identification parade. The appellant-accused Ashok came to be arrested along with appellant-accused Chakrapani and was placed as suspect in the test identification parade held and conducted by shri Bagade (P. W. 10) on 28-12-1995. After the appellant-accused’ Chakrapani was put in the parade and identified by the identifying witnesses, the identification parade was reconstituted and the appellant-accused Ashok Bhumayya was brought in the identification parade. He has been identified in the parade by Hemant (P. W. 1), the complainant Vyankati, Rubirani (P. W. 8) and Narsamma (P. W. 9), of which memorandum was prepared by Shri Bagade. These identifying witnesses who are the members of the family of the complainant Vyankati have also identified the appellant-accused Ashok Bhumayya before the Court as one of the person who committed dacoity in the house of the complainant on the unfateful day.
25. In addition to the evidence of these identifying wit nesses led by the prosecution, the prosecution has also led the evidence of recovery wherein silver weighing 100 grams has been recovered at the instance of appellant Ashok. On 25-12-1995, the appellant Ashok is supposed to have made a statement that he has prepared mass of silver ornaments weighing 10 tolas by melting it, which he has kept in the house and then led the police party to quarter No. M-6/1 and took out one solid mass of silver which was kept concealed in the northern side cement almirah in the middle room, which came to be seized under the panchnama Exh. 74. In this case also, the pancha was declared hostile as he did not support the prosecution case and the memorandum and recovery has been proved by the prosecution by examining P. S. I. Lanjewar.
26. Mallesh son of Ankush Gundetti has been convicted only on the ground of being receiver of stolen property and having committed offence under Section 411 of I.P.C. The evidence led by the prosecution to support their case against this appellant-accused was that of recovery of gold weighing 17.400 grams and silver weighing 158 grams. It was the prosecution case that after his arrest on 25-12-1995, at about l8.10 hours, while the appellant Mallesh was in the custody of the Police, he made a statement in presence of panchas that he would produce solid mass of gold and silver concealed in the kitchen, which came to be recorded under memorandum Exh. 72. Thereafter the appellant Mallesh is supposed to have led the police party to his house from where he produced one solid mass of gold and one solid mass of silver which was kept concealed in the upper compartment of the cement rack in kitchen. Piece of silver was 158 grams and gold was 17.400 grams, which came to be seized under the panchnama Exh. 75. Except for this recovery of stolen articles, no other evidence was led against this appellant.
27. The appellant Wasudeo Vyankuji Kohpare has been convicted for having committed offence under Section 395 read with Section 398 of I. P. C, by the trial Court. The prosecution has led evidence of the witnesses who have identified him as one of the culprits who committed dacoity in the house of the complainant Vyankati by examining Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9). The appellant-accused Wasudeo came to be arrested on 31-12-1995 as suspect. The test identification parade came to be held on 3-1-1996 at 4 p.m. in the office of Tahsildar by Shri Bagade the then Tahsildar and Executive Magistrate. The appellant Wasudeo was placed in the parade which was constituted of 5 dummies and was identified by Hemant (P. W. 1) and Rubirani (P. W. 8). Narsamma (P. W. 9) was not present for participating in the test identification parade. This appellant Wasudeo has also been identified by these identifying witnesses, as one of the culprits, before the Court.
28. In addition to the evidence of identification by the witnesses, the prosecution has also led evidence on the point of recovery of stolen properties at the behest of the appellants/accused. The appellant/accused Wasudeo came to be arrested on 31-12-1995 and on 2-1-1996, he made a statement in presence of the panchas that one piece of gold and one piece of silver is concealed by him in the tiles of his house, which came to be recorded under the memorandum Exh. 80 and thereafter, the appellant-Wasudeo is supposed to have led the Police party to Somnathpura area at Rajura to a new house constructed with bricks, mud and cement plaster provided with roof of red Bangalore tiles consisting of two rooms and chhapari, and took out and produced one piece of gold weighing 10 grams valued at Rs. 5,000/-and one piece of silver weighing 100 grams. He also produced one knife having round brass handle measuring 17 and 1/2 cms. in length and iron blade measuring 15 and 1/2 cms. in length and width of 3 cms., which came to be seized under the seizure panchnama Exh. 81.
29. Babu alias Prabhakar s/o. Rajyellayya Buka has been convicted for having committed offence under Section 395 read with Section 398 of I.P.C. In order to prove their case against the appellant/accused-Babu, the prosecution has led evidence to show that this appellant-accused was identified in the test identification parade as well as before the Court, by Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9). The test identification parade in the case of this appellant/accused, came to be held on 2-1-1996 at the office of the Tahsildar, Chandrapur, between 4.30 p.m. to 5.30 p.m. in the evening. He was placed amongst 5 dummies and identified by the witnesses including Vyankati Pocham Kampelli. The test identification parade was conducted by Shri Bagade (P. W. 10). In their evidence before the Court, Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9) have also identified this appellant as one of the dacoits who committed dacoity. In addition to the evidence of identification, the prosecution also led evidence of recovery of silver weighing 59 grams under the memorandum Exh. 82 which came to be seized under the seizure memo Exh. 83. The seizure in the case has been made at the instance of the appellant/accused. He made a statement that he sold a bracelet weighing about 5 tolas to the goldsmith making the silver and golden ornaments, in order to treat his wife who was ill, for Rs. 400/-, and then led the police party to the houses of the goldsmith by name Singarao Ramayya and Shrihari Narsayya Kondaparti of Arandamallatam, Police Station Manthani, district Karim Nagar who was found present in the house, and handed over one silver stick weighing 59 grams to the Police by informing them that the appellant-accused Babu had sold them one silver bracelet which he melted and prepared a’ silver stick.
30. The learned trial Court has considered the evidence of eye witnesses namely Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9) insofar as it relates to the identification of the appellants/accused in the test identification parade and before the Court, and found that their evidence is cogent, consistent and reliable. The witnesses were the inmates of the house when the dacoity took place and there is no reason to disbelieve their testimony. Similarly, relying on the evidence of recovery at the instance of the appellants/accused, the learned trial Court was satisfied that the prosecution has proved its case against the appellants/accused beyond the shadow of doubt as the evidence of identification of the culprits by the eye witnesses is well corroborated by the recovery of stolen articles, and proceeded to convict the accused.
31. First of all, we would like to take up the contention of the learned counsel that the case of the prosecution suffers from delay in lodging the First Information Report which is fatal and on this count alone, the appellants/accused deserve to be acquitted. What has been tried to canvass before us is that considering the background that the complainant Vyankati failed to lodge the First Information Report immediately after the incident though he was residing at a distance of 1 km, from the Police Station, itself goes to show that no such dacoity took place at his house. Secondly, it could not be ruled out that the Police has tried to falsely implicate the appellants/accused in the case of dacoity as they had stopped co-operating with the Police as informant relating to activities of Naxalites in the area and, therefore, after the appellants/accused were falsely arrested by the Police, they got the report lodged from Vyankati.
32. The evidential value of the First Information Report will be reduced if it is made after such delay which is unexplained particularly when it creates a suspicion that the informant had sufficient opportunity to concoct a story and falsely implicate the accused. Therefore, what is sufficient explanation for delay would depend on various circumstances. In the present case, the reason given for delay in lodging the First Information Report can be found in the report itself, which is Exh. 24. A detailed complaint came to be lodged by Vyankati on 18-12-1995 with the Police narrating the manner in which the incident took place on 4-8-1994 at his house which was during the night and that while the culprits left his house after robbing them of the gold and silver ornaments, they threatened him to be killed in the name of the Naxalites and, therefore, he did not lodge the report. From the export Exh. 24 itself, we can find out that the complainant Vyankati could gather courage because he came to know that the persons who committed dacoity were not Naxalites. As Vyankati died before commencement of the trial, the prosecution could not examine him. But, his family members namely son Hemant (P. W. 1), does explain the reason for not lodging the report with the Police of the incident of dacoity which took place in the house as because while leaving the house, the culprits had threatened that if they lodge any complaint with the Police, their house would be blown out with bomb and they would be killed and that after the incident of dacoity, they could not sleep in the night and his parents were weeping. The learned counsel for the appellants/accused has pointed out to this Court that the reason given before the Court by the witness Hemant has been brought on record as an omission and is nothing but an afterthought, and an attempt on the part of the prosecution to improve their case on this count. It is also contended that the trial Court has taken upon itself to explain the delay in lodging the report by the complainant. We find that insofar as the complainant Vyankati is concerned, as he expired before the trial could commence, the prosecution has lost an opportunity to explain the delay through him and as we find that the F. I. R. Exh. 24 do contain the reason for not lodging the complaint by Vyankati who was head of the family, it was probably not felt necessary to Hemant (P. W. 1) to explain the delay in his statement recorded before the Police. But, when questioned about it, in his evidence before the Court, he has given the explanation for not lodging the report with the Police which is convincing and goes along the line taken by the complainant Vyankati when he lodged the report with the Police and, therefore, this cannot be considered as an omission on the part of Hemant (P. W. 1). The trial Court has considered the delay in lodging the First Information Report in its proper perspective and on taking judicial notice of the fact that Chandrapur district is infected with Naxalites and one can accept that because of the fear of retaliation of the culprits that they were Naxalites, the complainant or his family members could not gather courage to lodge the report. It is only when they found that those suspects are arrested and they are not Naxalites, the complainant Vyankati could gather courage to lodge a report. What we find from the evidence is that Vyankati has only reported the incident of dacoity which occurred in his house on the unfateful day i.e. the manner in which it was committed and giving particulars of the gold and silver ornaments stolen from him. The report was against unknown persons and, therefore, there is no question of false implication of the accused in the case. Vyankati has clearly stated in the First Information Report Exh. 24 that in case the stolen property i.e. the ornaments are shown to him, it can be identified by his family and he also gives the details of the shop from where the gold and silver ornaments were got prepared. In addition, it is also stated that they will be able to identify the culprits. The memoirs of the culprits who committed such a heinous offence of dacoity in their house, was fresh in their mind. In the circumstances, we find that the prosecution has sufficiently explained the delay in lodging the First Information Report and it cannot be said that the F. I. R. is lodged with an object to falsely implicate the appellants/ accused in the dacoity. case.
33. In respect of the test identification parade held by Shri Bagade (P. W. 10) who was at the relevant time working as Tahsildar and Executive Magistrate, much has been said about the process followed by him for holding of the test identification parade, on the ground that the suspects were earlier shown to the identifying witnesses before the test identification parade was held. Secondly, the Police did not take the necessary precaution for carrying the suspects in parade or in Court so as to prevent them from being exposed to the witnesses when they were taken for remand and produced in the Court and before the Executive Magistrate who conducted the test identification parade and he did not follow the procedure and guidelines as prescribed by this High Court. On examining the evidence of Shri Bagade (P. W. 10) and that of the identifying the witnesses, we are unable to subscribe to the contention raised by the learned counsel for the appellants. Though the investigating officer in his evidence before the Court admitted that the suspects on their arrest, were not covered while they were taken to Court or taken outside the police lock up for the purpose of investigation, nothing has come on the record to show that the identifying witnesses had an opportunity to see them when they were taken out of the Court or taken out of the lock up. Defense has not made any attempt even to cross-examine the Police Officer and the Executive Magistrate who conducted the test identification parade and even the identifying witnesses on this count with regards the manner in which the test identification has been held. What we find that the Executive Magistrate has taken all the necessary precaution to see that the identifying witnesses did not see the suspects before they were put in the parade. The parade was held by placing each individual suspect in a group of five persons which is sufficient precaution and though the memorandum of the test identification parade do not record each and every aspect, in his evidence, Mr. Bagade (P. W. 10) has stated before the Court the manner in which he has conducted the test identification parade which clearly indicates that till the identification parade was conducted and suspects were placed in the parade and identified by the identifying witnesses, the identifying witnesses had no opportunity to see the culprits. We have satisfied ourselves that the evidence led by the prosecution as regards the holding of the test identification parade and identifying the suspects by the identifying witnesses, is reliable and concerned authorities have taken all the necessary steps and precaution to see that the test Identification parade is held in a manner which was fair to the suspects as well as the identifying witnesses.
34. As regards the identification of the suspects by the identifying witnesses in the test identification parade as well as before the Court, it is urged that long lapse of time which in this case was duration of 16 months, would erase the memory of the witnesses as regards the culprits who committed the offence by relying on various authorities cited supra. We would like to mention at this stage that the capacity of the identifying witnesses to identify the suspects in the parade and before the Court, depends on various facts. A lapse of a particular time period may not necessarily in all cases erase the memory of the witnesses as regards the culprits as it will always depend on the peculiar facts and circumstances of each case relating to the opportunity such as the witnesses had to see the dacoits, the period of time they were with the victim and in case the dacoity is committed during night time, the availability of light. In addition to this, another important factor would be the power of observation of the witnesses. In the present case, the culprits have entered the house of the complainant Vyankati after 11 p.m. by giving knock to his door which made the complainant Vyankati to open the door of his house which facilitated entry of five persons in his house who were found to be armed with the deadly weapons. It is but natural that if any person in the midnight hears knock on his door particularly when the family had gone to sleep, he will first put on the lights before opening of the door. Not a single question is asked to the identifying witnesses as regards light in the house. Nothing has been brought on the record to show that complainant Vyankati had no electricity connection and that the dacoity was committed in dark. As the prosecution case reveals that the culprits were in the house for about 50 minutes i.e. from 11 p.m. to about 11.50 p.m. We have no hesitation to hold that if the identifying witnesses whose presence in the house is not in dispute, are with the dacoits for a period of 50 minutes and particularly under the shadow of fear of the dacoits who robbed them of their available properties, would deeply engrave prints of their faces in their mind. The learned counsel for the appellant-Chakrapani has tried to show that in his Police Statement, Hemant (P. W. 1) has categorically stated that one of the culprits was covering his face and that this witness has been discredited on this aspect. Insofar as Hemant (P. W. 1) is concerned, he has explained that the appellant Chakrapani was having his Muffler around his neck and he could see his face, when question on this point. Therefore, it cannot be said that whole face of the appellant Chakrapani was covered as tried to be canvassed before us. Other identifying witnesses, therefore, do not say that the appellant Chakrapani had covered his face or any other appellant accused who had entered the house had covered their faces in such a manner that it was difficult to identify them. Therefore, considering all these circumstances, we find that the identifying witnesses not only had sufficient opportunity to see the dacoits for over 50 minutes in their house, but they did not find any difficulty in retaining their features in the memory as it was associated with the incident of dacoity. The case of Sanjeevan v. Kerala State 1994 Cri LJ 1316 (Ker) can be referred in this context. In the case of Sanjeevan, the Kerala High Court observed as under :
Evidence of identification of witnesses cannot be rejected merely because they did not enumerate the features or marks of the accused. Persons possessing special identification features are far and few between. One is able to remember another man’s face nor always because of any special mark or features. The image of an assailant or a thief or a burglar can leave the impression in the mind of the viewer or the victim which can remain in the mind without fading out for a reasonable period. There are untranslatable factors by which such retention is possible. The viewer need not count or notice any special mark or feature for retaining the image of the assailant in his mind.
35. We, therefore, hold that the evidence led by the prosecution by examining the identifying witnesses namely Hemant (P. W. 1), Rubirani (P. W. 8) and Narsamma (P. W. 9) as regards the identifying the suspects in the test identification parade as well as in the Court that they were the members of the team which entered in the house, does inspire confidence and there is no reason to disbelieve their testimony and on this count the witnesses have stood the test of cross-examination.
36. We now turn to the corroborative evidence of recovery led by the prosecution in support of their case against the appellants/accused. We have already listed above the various recoveries made at the instance of the appellants accused in the case. It is unfortunate that the members of the public do not come forward to give evidence against the persons who have committed heinous offences like dacoity and murders. Even the persons who have acted as panchas resile from their responsibility when examined in the Court, probably out of fear of the accused who are facing the trial which narrate the manner in which the offence is committed by the culprits. In this case, unfortunately for the prosecution, all the panch witnesses relating to the recovery of the stolen property, have turned hostile. In the given situation, the learned trial Court was quite justified by relying on the evidence of the Investigating Officer who has participated in the investigation relating to the recovery of the stolen property at the instance of the appellants/accused. The various memorandum regarding the statements of the appellants/accused about the concerned property and then leading the Police party to a specific place where they had kept concealed or sold and ultimate recovery of the property, go in a long way to show that the appellants/accused are the persons who had kept or sold the property in the manner stated by them particularly when the property has been recovered on it being produced by the appellants/accused or pointed out at the persons to whom it was sold and recovered by the Police and, therefore, the Court need not have any hesitation to draw a necessary inference that the recovery of the stolen property was made from the possession of the appellants/accused. In case of the appellant Chakrapani, there has been recovery of two gold rings articles 5 and 6 which have been duly identified by Hemant (P. W. 1) and Rubirani (P. W. 8). In respect of the recovery of the other properties which is in the form of ingots/pieces of gold and silver, it will not be wrong to draw an inference with these properties as recoveries form part of the stolen property because it is not unusual for the culprits who have stolen the property to get it melted for sharing as well as with an object of concealing its identity. Otherwise, it is most unnatural that a householder would keep gold and silver in the form of ingots or stick and if that is so, the appellants/accused would not have any hesitation to explain or claim the property recovered from them in the form or shape it came to be recovered in the present case. On the other hand all the appellants/ accused have disowned the properties and disclaimed that it was recovered at their instance. We find that the prosecution has, therefore, sufficiently established that the properties so recovered at the instance of the appellants/accused was the part of the stolen property and, therefore, the conviction and sentences as decided by the trial Court is justified and does not call for any interference.
37. Another interesting point which was raised by the learned counsel for the appellants in the case is that the appellants accused who have been convicted for having committed offence under Section 395 read with Section 398 of I.P.C. could not be so convicted as the trial Court only found four persons guilty for having committed dacoity. According to the learned counsel for the appellants, the trial Court fell in error in convicting these appellants accused for having committed offence under Section 395 read with Section 398 of I.P.C. as minimum requirement of the provision of law is that there should be at least five persons who may commit an offence under section 395 of I.P.C. and as the appellants accused who have been convicted for the offence of dacoity are four in number, one of them being acquitted, their conviction deserves to be converted to one under Section 392 of I.P.C. The learned counsel has referred to the case of Ram Lakhan v. State of Uttar Pradesh in which all the named nine persons were charged for having committed dacoity, but only four were convicted by the trial Court and remaining three except the appellant Ram Lakhan came to be acquitted and, therefore, the Supreme Court held that the appellant alone cannot be convicted for an offence under Section 395 of I.P.C. and quashed his conviction and sentence under Section 395 of I.P.C. In reply to this, the learned A. P. P. submits that the prosecution case is very specific on the point that there were five persons who entered the house of Vyankati, though there were in all eight persons who committed dacoity and as the other three were out of the house, they could not be identified by the inmates of the house and, therefore, it cannot be said that the prosecution has failed to prove the offence under Section 395 read with Section 398 of I.P.C. merely for want of figure of five. It is further submitted that one of the persons wanted for having committed this offence by name Anjayya, is absconding and, therefore, merely because the trial Court acquitted Laxman son of Pochayya Ankur who could not be identified by the witnesses probably because he had not entered the house and the possibility that Anjayya had accompanied Chakrapani and others while entering the house of Vyankati cannot be ruled out and, therefore, it cannot be said that the appellants cannot be held guilty of having committed the dacoity. The learned A. P. P. has drawn the attention of this Court to the case of Saktu v. State of U.P. , in which the Supreme Court has held as under :
The last contention advanced on behalf of the appellants is that as the High Court found that only 3 persons had participated In the occurrence it was an error to convict them of dacoity, because the offence of dacoity cannot be committed by less than 5 persons. In support of this submission, counsel relies on the decision in Ram Shankar Singh v. State of Uttar Pradesh . We are unable to accept this submission. In Ram Shankar Singh’s case six known persons were charged with dacoity and as the High Court acquitted three out of the six, it was held by this court that the remaining three could not have been convicted for dacoity. The charge in the instant case is that apart from the named 7 or 8 persons, there were 5 or 6 other who had taken part in the commission of the dacoity. The circumstance therefore, that all, except the three accused, have been acquitted by the High Court will not militate against the conviction of those three for dacoity. It is important that it was at no time disputed that more than 13 or 14 persons had taken part in the robbery. The High Court acquitted a large number of the accused because their identity could not be established. The High Court, however, did not find that the group which committed robbery in the house of Jwala Prasad consisted of less than 5 persons.
And, therefore, according to Mr. Deopujari, the learned A. P. P., this contention on the part of the appellants/accused cannot be accepted. We accept the contention raised by the learned A. P. P. considering the facts of the case and find that the trial Court was justified in convicting the appellants accused for having committed offence under Section 395 read with Section 398 of I.P.C. As the prosecution had come up with a specific case that there were in all five persons who had entered the house of Vyankati and robbed them by using the deadly weapons, merely because one of the persons is not identified, would not defeat the prosecution case that the dacoity was committed by not less than five persons, at the house of complainant Vyankati. While filing the charge-sheet, the prosecution has specifically mentioned that one of the cultprits in the case by name Anjayya is found to be absconding and that is why the charge-sheet came to be filed only against seven accused persons before the trial Court out of which four are convicted for having committed offence under Section 395 read with Section 398 of I.P.C. and two accused persons are convicted for having committed offence under Section 411 of I.P.C.
38. In respect of the appellant/accused Rajababu and Mallesh, it is submitted by the learned counsel appearing for them that they have already undergone the sentence of more than 15 months and presently are on bail. It is submitted that they are only convicted for having committed offence under Section 411 of I.P.C. and considering the fact that there has been a delay of six years in considering their appeal and that during the period they were on bail, they have not committed any offence, which indicates that they have decided to lead a honourable life, this Court should give them a fair opportunity by reducing their sentence to one already undergone. The learned A. P. P. strongly objects to grant of any concession to these appellants on the ground that these appellants are only fortunate that the prosecution could not prove its case against them for having committed dacoity as in the case all other accused persons because they were not identified by the identifying witnesses as they had not entered the house in question, but did accompany the appellants accused who are convicted for the dacoity.
39. We have given our anxious consideration to the appeal for leniency made by the learned counsel for these two appellants accused and we find that in the background that they had no criminal antecedents when arrested in the case and on their release on ball, there is no complaint against them of having misconducted themselves by misusing the bail or having indulged in committing any offence, we are inclined to reduce their sentence to one already undergone, their appeal in partly allowed.
40. With the aforesaid modification in respect of the sentences imposed against the appellant Rajababu and Mallesh, all the appeals stands dismissed.