JUDGMENT M.G. Gaikwad, J.
1. Heard learned Counsel, appearing for the respective parties.
2. By preferring this appeal, appellants (original accused Nos. 1 and 2) challenged the order of their conviction for the offences punishable under sections 395 r.w. 397 of IPC as well as the sentence of rigorous imprisonment for seven years and fine of Rs. 1000/-in default, rigorous imprisonment for three months against accused No. 1 and sentence of rigorous imprisonment for three years and fine of Rs. 500/-, in default rigorous imprisonment for two months against accused No. 2, recorded by IIIrd Adhoc Additional Sessions Judge, Parbhani on 28-07-2005 in Sessions Case No. 63/2004.
3. The facts giving rise to this appeal are as under.
The incident of dacoity was alleged to have taken place on 10-12-2003 in the field of PW8 Mohd. Qayyum, situated within the limits of village Hattarwadi. On the day of alleged incident, PW8 Mohd. Qayyum had engaged labours for collection of cotton. PW4 Sk. Rafique, PW5 Mohd. Akram, PW8 Mohd. Qayyum alongwith original accused No. 7 Sultam were in the field of PW8 Mohd. Qayyum. At about 4 to 4.30 p.m., accused No. 1 and 2 alongwith unknown person had gone to that field. Accused No. 1 disclosed his identity to the witnesses. Accused No. 7 who was present in the field made disclosure that the accused No. 1 who had gone there was known to accused No. 7 and he is from village Mandakhali. Accused No. 1 told PW8 Mohd. Qayyum that he was possessing gold and intended to sell it by lesser price. The witnesses thereupon made inquiry with him as to where was the gold. Then, accused No. 1 told them that in case they were ready to purchase the gold and if they were having cash, he would show the gold to them. He also disclosed that he was possessing 250 grams of gold and he would sell it for Rs. 40,000/- to Rs. 50,000/-. PW8 Mohd. Qayyum had gone to Manwat on a motor-cycle and returned back with cash of Rs. 50,000/-. On his arrival, accused No. 1 made inquiry as to whether Mohd. Qayyum had brought the cash . Mohd. Qayyum thereafter showed him the bundles of notes which he had brought and he kept it in the pocket of his pant. Thereafter, accused No. 1 told them that they will bring the gold and on that pretext, all three had gone in the standing crops in the neihbouring fields. Accused No. 1 alone returned back and disclosed that the gold was being brought within short time. The witnesses therefore should not leave the field. Those were the days of Ramzan. All the three witnesses, therefore, offered prayer. Accused No. 2 and their third companion returned back to the spot. That unknown person removed the bangles of yellow colour wrapped in the papers and placed them before the witnesses. That time, accused No. 2, by raising some sound gave signal. On that signal, 7 to 8 persons rushed to the spot from standing crops. Accused No. 2 threw chilly powder. Thereafter, there was attack on these witnesses. Cash of Rs. 50,000/- from PW8 Mohd. Qayyum was forcibly taken away by causing injuries to him by sharp weapons like sickle. When this incident of attack was going on, after receiving one blow of stick, PW4 Sk. Rafique ran away from that spot. He went on the road, and by one jeep, he had gone to Hattarwadi and disclosed the incident to the villagers. Thereafter alongwith the villagers, he returned back to the field. But PW5 Mohd. Akram and PW8 Mohd. Qayyum were not found in the field, hence, PW4 Sk. Rafique had gone to the Police Station. There, he came to know that injured were already shifted to the hospital. He thereafter rushed to the hospital. All the three injured witnesses were examined by PW1 Dr. Shaikh Arif, attached to Rural Hospital at Manwat. From the hospital, PW4 Shaikh Rafique went back to the Police Station, Manwat and lodged complaint (Exh-93). On his complaint, PW12 API Anwar Khan registered Crime No. 119/2003. As it was a serious offence, he gave intimation of the same to the Control Room at Parbhani and in that night itself, he proceeded in search of the dacoits. From Control Room, intimation was given to all Police Stations about this incident. PW6 Balkrishna Shejal, PSI attached to Pathri Police Station received information from Control Room. While he was on night petrolling duty, near village Devnandra, accused Nos. 1 and 2 were found in suspicious condition. He therefore brought them to the Police Station. In the Police Station, he took their search. Accused No. 1 was found possessing a bag. One Nehru shirt, one jar and cash of Rs. 11,000/- was found with him. Accused No. 2 was found possessing a bag. In the search of that bag, cash of Rs. 10,000/- was found. This search was taken in presence of panch witness PW3 Satwa Shelke. The articles found with accused No. 1 and 2 were seized recording panchanamas (Exh-88 and Exh-89).
4. PW6 PSI Shejal gave intimation to PW12 API Anwar Khan that he had arrested accused Nos. 1 and 2. Then, the accused were brought to Manwat Police Station and they came to be arrested recording arrest panchanamas (Exh-123 and Exh-124). Meanwhile, PW12 API Anwar Khan visited the spot and recorded spot panchanama. One Gandhi cap, four bangles of yellow colour, one handkerchief were found lying there on the spot. These articles were seized under panchanama (Exh-87). For the purpose of identification, dogs squad was called on the spot and the smell of the articles found on the spot was given to sniffer dog. In the police station, identification parade was held in presence of panchas and Police Head Constable Kashinath Sonkamble (PW9) who was handler of dog squad. On taking smell of the articles found on the spot, sniffer dog pointed out accused No. 1. Thereafter, other accused came to be arrested. At their instance, weapons of assaults were alleged to have been discovered. During investigation, 117 bangles of yellow colour metal were discovered. Same were shown to Goldsmith PW7 Parjot Udavant, who issued certificate (Exh-104) and opined that the bangles were not of gold, but were of brass. Thereafter, PW12 API Anwar Khan referred the weapons katti, dagger and weapon stick to the Chemical Analyser who issued C.A. Report (Exh-129) and gave opinion that blood of blood group "B" was detected on article Exhibit-1. Completing other formalities of investigation, charge-sheet came to be filed against the present appellants and seven others in the court of Judicial Magistrate First Class, Pathri, who committed the case to the court of Sessions at Parbhani as the offences were triable by the Court of Sessions.
Learned Additional Sessions Judge, Parbhani framed charge at Exh-20 against accused Nos. 1 to 7 as well as accused Nos. 9 and 10. All the accused pleaded not guilty of the offences levelled against them and claimed to be tried. At the trial, their defence was of total denial. During pendency of trial, accused No. 4 was absconded and still, he is absconding and the trial proceeded against all the remaining accused.
5. During pendency of the trial, accused No. 1 who was in jail was reported to be suffering from some mental illness. Hence, he was referred to Mental Hospital and he took treatment there. After examining the witnesses, the learned Additional Sessions Judge confirmed that accused No. 1 was fit to face trial and thereafter the trial was proceeded against all the accused.
6 At the trial, the prosecution examined in all twelve witnesses. PW4 Sk. Rafique, PW5 Mohd. Akram and PW8 Mohd. Qayyum were examined as eye witnesses. PW6 Balkrushna Shejal proved the fact of arrest of accused Nos. 1 and 2 while he was on petrolling duty and proved the arrest panchanamas (Exh-88 and Exh-89) which were recorded in presence of panch witness PW3 Satwa Shelke. PW2 Syed Kalim was examined to prove spot panchanama and seizure of articles from the spot. PW1 Dr. Shaikh Arif is the doctor who had examined PW4 Sk. Rafique, PW5 Mohd. Akram and PW8 Mohd. Qayyum and he proved the fact that on the date of alleged incident, PW4 Sk. Rafique, PW5 Mohd. Akram and PW8 Mohd. Qayyum were found to have sustained injuries as certified in the certificates produced at Exh-80, Exh-81, Exh-82 and Exh-85. Relying upon the evidence of three eye witnesses, identity of accused Nos. 1 and 2 as the dacoits is held proved. Accused No. 1 came to be convicted and sentenced for the offences punishable under Section 395 r.w. 397 of IPC and accused No. 2 is convicted and sentenced for the offence punishable under Section 395 of IPC. As the evidence adduced by the prosecution was found insufficient on the point of identity of other accused as dacoits, they have been acquitted of the charges levelled against them. Feeling aggrieved with the order of conviction and sentence, this appeal came to be filed by original accused Nos. 1 and 2.
7. Learned advocate Mrs. Chilcholkar, appearing on behalf of the accused/appellants submitted that the order of conviction recorded against the appellants is not sustainable. According to her, there is no evidence about the identity of the present appellants as the assailants or dacoits. None of the assailants was known to the witnesses prior to the incident. The incident did occur after Sunset. Hence, there is no possibility of identifying the assailants by the witnesses. The identification in the court made first time cannot be relied upon. She also submitted that the identification in the parade of dog squad is a weak piece of evidence and cannot be relied upon unless corroborated by other evidence. As such, according to Mrs. Chilcholkar, the evidence led at the trial about the identity of the assailants is not sufficient and reliable in proof of the identity. Therefore, the order of conviction recorded against the appellants is not sustainable. She has also advanced submission that discovery of the property is alleged to be one of the circumstances to prove the complicity of the accused in the alleged crime, but the property discovered is in the form of cash and there is no evidence about the identification of the said cash as stolen property. That circumstance also cannot be said to be proved. She has also submitted that as regards the actual incident, there are discrepancies in the evidence of three eye witnesses, therefore, that evidence is not reliable at all.
On the other hand, learned APP Shri Dharashive supported the order of conviction recorded by the trial court. According to him, the accused/appellants were in the company of three eye witnesses for a period of about 2 to 3 hours. During investigation itself, they disclosed identification mark of these appellants on the basis of which they have identified these appellants, hence, the identity is not doubtful. The accused/appellant No. 1 has also been identified by sniffer dog and it corroborates the testimony of the eye witnesses. According to him, the judgement of conviction recorded by the learned Additional Sessions Judge does not suffer from any infirmity and no interference in it is essential.
8. In view of the rival submissions advanced by the learned Counsel appearing for the respective parties, the main point for consideration in the present case is about the identity of the present appellants. In support of the submission that identification of the accused in the court cannot be accepted. Mrs. Chincholkar, learned advocate placed reliance on the decision of Apex Court in the case of Jaspal Singh @ Pali, etc. v. State of Punjab reported in 1996 (4) Crimes 74 (SC), wherein, the Apex considering the facts in that case held thus :
Identification of the accused in the court cannot be accepted as reliable identification in absence of T.I. Parade held during investigation.
The facts in that case were that unidentified terrorists entered the house, took away deceased who was found dead by gum shot in the street. No test identification parade was held during investigation. In addition to it, there was evidence of extrajudicial confession which was held to be a weak piece of evidence and the Apex Court held that it is unsafe to accept the same. The facts in the present case are different than those in the reported case. The present appellants were negotiating with the present witnesses from 4.00 to 6.30 p.m. During investigation itself, identification marks were disclosed by the witnesses. Hence, it is not a case that the accused were identified first time in the court. Therefore, the ratio in the above reported case is not applicable to the facts of the present case. Reliance has also been placed on the decision of the Apex Court in the case of Kanan and Ors. v. State of Kerala . In the said case also, the witness identified the accused who was not known to him, in the court for the first time. Because of the said fact, the Apex Court held as follows.
Where a witness identifies an accused who was not known to him, in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations.
As regards the identification by sniffer dogs, the Apex Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh reported in 2001 AIR SCW 2509 held thus:-
The evidence based on sniffer dogs has inherent frailties. The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out Criminal courts need not therefore bother much about the evidence based on sniffer dogs.
Reliance has also been placed on the decision of the Apex Court in the case of Ram Lakhan v. State of U.P. . In that case, the appellant alongwith eight others was tried for the offence punishable under Section 395 of IPC. The appellant was convicted while others were acquitted. Considering the facts in that case, the Apex Court held that the conviction of the appellant alone is unsustainable as assembly of five persons is necessary to make offence under Section 395. The trial court in that case had acquitted five persons and convicted four. On appeal to High Court, the High Court acquitted three persons out of remaining four persons and convicted the appellant alone. In the FIR, all nine accused were named, but eight had been acquitted. The Apex Court, therefore, held that the conviction of only one accused is not sustainable as no overtact of the appellant so as to bring his case within any other ffence was made out. The ratio laid down in the case of Ram Lakhan will not be attracted to the facts of present case. Because the witnesses in the case at hand since beginning are claiming that these appellants had negotiations with the accused regarding sale of gold and unknown 7-8 persons had arrived on the spot on a signal given by these accused and all of them committed the alleged offence of dacoity taking away the cash. In view of the ratio in the above referred case, it has to be seen as to whether the evidence of the three eye witnesses examined at the trial is reliable on the point of identity of these appellants.
9. The incident in question is reported to the police by PW4 Sk. Rafique by his complaint (Exh-93). This complaint came to be recorded at about 7.30 p.m. on the same day. The incident was alleged to have taken place at 6.30 p.m. Considering the evidence of PW1 Medical Officer Dr. Shaikh Arif, it is clear that all injured witnesses including PW4 Sk. Rafique had gone to the hospital on their own accord at 7.15 p.m. and PW1 Dr. Arif had examined them and also gave intimation to Manwat police. On examination of PW8 Mohd. Qayyum, Dr. Arif noticed four incise wounds on his body and two more injuries abraisons and contusion. On examination of PW5 Mohd. Akram, he noticed two incise wounds, one on the left parital and other on the forehead. On examination of PW4 Sk. Rafique, Dr. Arif noticed contusion of right side of forehead. An attempt is made to show that these witnesses accidentally sustained injuries, but except mere suggestion, no material could be brought on record. Accused No. 7 also sustained injuries in that incident. Considering the nature of the injuries sustained by these witnesses, there is no possibility of such injuries -incise wounds -sustained accidentally. Fact remains that in the incident, these witnesses did sustain serious injuries and immediately, they had rushed to the hospital and Dr. Arif noticed fresh injuries on their persons. After examination of the these witnesses by Dr. Arif, complaint came to be recorded within a short period.
10. Learned advocate Mrs. Chincholkar, for the appellants pointed out some discrepancies which are of very minor nature in relation to lodging of complaint (Exh-93). PW5 Mohd. Akram and PW8 Mohd. Qayyum had first gone to the Police Station and from there, they had been to the hospital. However, PW4 Sk. Rafique first had gone to the Police Station where he came to know that PW8 Mohd. Qayyum and PW5 Mohd. Akram had been sent to Rural Hospital, Manwat, hence, he had gone to the hospital and thereafter, returning to the Police Station, the complaint came to be lodged. According to learned advocate Mrs. Chincholkar, before referring the witnesses to the hospital, none of them had made disclosure to the police about the incident and later on, the complaint came to be recorded. There is thus delay in lodging the complaint as well as the investigation is faulty. These submissions by the learned advocate are without any merit. PW5 Mohd. Akram and PW8 Mohd. Qayyum had sustained severe injuries i.e. incise wounds. Therefore, there was nothing abnormal or un-natural on their part to first rush to the hospital instead of reporting the incident to the police. Obviously, first priority is to have medical aid in case of sustaining such severe injuries. PW4 Sk. Rafique had also sustained injury. He came to know that his brother inlaws were referred to the hospital and therefore, he had gone to the hospital first. The evidence of the Medical Officer - PW1 Dr. Arif makes it clear that he gave intimation to the police and thereafter, immediately, complaint came to be registered. It is thus not a case of delay in lodging FIR nor the conduct of the witnesses in not reporting the incident to the police before reaching the hospital can be said to be un-natural to disbelieve them.
11. Let us now consider the evidence of the witnesses as to whether the same is reliable on the point of identity of the present appellants. The FIR lodged by PW4 Sk. Rafique gives details of the incident. As per this FIR, when all of the witnesses were in the field, two pardhi male members and one female member had gone to that field. In the FIR itself, the description about the clothes as well as features of those persons is given. It is specifically mentioned that the woman who had gone there was wearing nine meters saree and she was of a height of more than five feet and the special features noticed by these witnesses is that at the time of conversation between these accused and the witnesses, she had a habit of moving her mouth towards left side. Description of appellant No. 1 is also given in the complaint. It is also alleged that he was wearing a trouser and Nehru shirt and a cap. Special mark of identification of accused No. 1 is mentioned in the complaint that on his forehead, at the centre, there was a old scar of injury. Third person/accused absconding was alleged to be of a black complexion with one broken teeth and wearing black colour pant, but unfortunately, this man was never brought before the trial court. However, as regards the present appellants, in the complaint, details of their identification have been recorded. This complaint came to be recorded at 7.30 p.m. on the same day i.e. within two hours of the incident and without any delibrations giving these marks of identification. With this background, the evidence of three witnesses needs to be considered to find out as to whether the evidence about identification of the accused given by the witnesses is reliable or not.
12. Admittedly, in the present case, during investigation no identification parade was held. The Investigation Officer gave explanation for not holding the identification parade that identity of these two appellants was given in the investigation. Non-holding of test identification parade by itself cannot be accepted to be a circumstance to discard the evidence in case the evidence at the trial is found to be reliable about the identity. PW4 Sk. Rafique has stated that when he was in the field of PW8 Mohd. Qayyum with Mohd. Qayyum and PW5 Mohd. Akram, two men and one women members of pardhi community had arrived in that field. The female member out of them was of a black complexion. PW4 Sk. Rafique also deposed that while speaking, she had a habit of moving her mouth towards left side. Accused No. 1 was wearing Nehru shirt, a trouser and a cap. He also specifically stated that there was a mark of old scar injury on his forehead at the centre. He disclosed the name of accused No. 1 as well as unknown person as Balu. Because of said evidence, submission is made on behalf of the appellants that identification of accused is doubtful. This submission is, however, without any merit, because identification marks of two male members who had gone there in the field are totally different. At the trial, he has stated that he identified accused Nos. 1 and 2 as the persons arrived in the field at the time of incident. He has specifically stated that another unknown man who was also known by name Balu is not before the court. Inspite of lengthy cross-examination on the point of identification marks of these appellants on the basis of which this witness identified them in the court, no omission or contradiction could be brought on record. Though there are minor omissions about the other facts of the incident which will be considered independently. Thus, version of PW4 Sk. Rafique is specific about the marks of identity of these appellants as per his FIR. As such, his version about identity of these accused as the persons who had gone to the field of PW5 Mohd. Akram is found to be trustworthy. As regards the incident, PW4 Sk. Rafique has stated that these appellants and one unknown person had gone there and made false representation that they were possessing gold which they intended to sell for a lesser price than that of market price and had made inquiry with the witnesses as to whether these witnesses intend to purchase it. The accused disclosed to sell the gold of 250 grams for a price of an amount of Rs. 50,000/-. That being a price less than market price for that much gold, PW8 Mohd. Qayyum went to the town of Manwat and returned back with cash of Rs. 50,000/-. Accused Nos. 1 and 2 and unknown person were waiting there and they confirmed from PW8 Mohd. Qayyum that he had brought the cash, and thereafter, by making show that he would bring gold within a short time, he went in the nearby standing crops and again returned back within short time. The unknown person with him made a show of showing golden bangles wrapped in a paper and immediately, accused No. 2 threw chilly powder towards the witnesses and gave a signal and immediately on that signal, other unknown persons who were in the standing crops, rushed to the spot, started assault on the witnesses and thereafter, cash was snatched from PW8 Mohd. Qayyum. In the cross-examination of this witness, a minor omission was brought on record. He has stated that alongwith PW8 Mohd. Qayyum, he had also gone to Manwat town, but he admits that at the time of his earlier statement, he had stated that Mohd. Qayyum alone had gone to Manwat and returned back with cash from Manwat town. An omission has also been brought on record about the act of accused No. 2 as to whether she had taken out chilly powder from the bag, but that is not a complete omission because even in the earlier statement, he had deposed that she had thrown the chilly powder towards the witnesses, but not stated that she took it out from the bag. These omissions are not at all material. Another omission brought on record is about the presence of accused No. 7 Sultan. This witness gave consistent version that accused No. 7 Sultan was with them. Medical evidence proved that accused No. 7 Sultan had also sustained injury that day. In the FIR, there is reference that Sultan had disclosed the names of the accused, but his evidence as regards entire incident remained unshattered. On behalf of the appellants, submission is also advanced that there is no possibility of this witness identifying the accused because the incident was alleged to have taken place after Sunset. No doubt, it has come on record that those were the days of Ramzan. At the time of Sunset, these witnesses offered prayer and then this incident had occured. However, it was not suggested to PW4 Sk. Rafique or other two witnesses that at the time of incident, there was complete darkness. The incident as deposed by this witness did occur immediately after Sunset. Hence, it cannot be said that there was complete dark. The evidence of this witness is found consistent and corroborated by the FIR. No material could be brought on record becauseof which this witness can be said to be untrustworthy witness.
13. PW5 Mohd. Akram and PW8 Mohd. Qayyum are the injured witnesses who sustained the injuries in this incident. Their presence in the field cannot be doubted because the incident took place in their field itself. According to them, they were in the field as the work of harvesting of cotton was in progress and some labours were engaged for collection of cotton. While they were in the field, present appellants and one unknown person approached them and made representation in respect of sale of gold for lesser price. PW8 Mohd. Qayyum agreed to purchase it and had gone to the town Manwat and returned back with cash. After confirming that PW8 Mohd. Qayyum had brought the cash, present appellants and another unknown person accompanying them made a show that they would bring the gold and going in the nearby standing crop, again returned back and showed the bangles of yellow metal. This witness and other witnesses verified the same, and while these witnesses were verifying the alleged golden bangles, accused No. 2 threw chilly powder towards the witnesses and gave a signal. On that signal, 7-8 persons hidden in the standing crops arrived on the spot, attacked the witnesses and took away the cash which was with PW8 Mohd. Qayyum. Evidence of these witnesses is consistent with the story narrated by PW4 Sk. Rafique. PW5 Mohd. Akram as regards identity of these appellants, also gave details, stating that accused No. 1 was wearing Nehru shirt, a trouser and a cap and accused No. 2 was wearing blue colour saree and she had a habit to move her mouth towards left side while speaking. These were the marks of identification mentioned in the complaint as well as disclosed by PW4 Sk. Rafique. In the cross-examination of these witnesses also, no material could be elicited to falsify them. Only one omission is brought on record in relation to broken teeth of third unknown person who was with these appellants, but that person is not arrested and not tried, hence that omission in respect of identification of absconding accused cannot be used to discredit them on the point of identity of these appellants. Attempts were made to show some discrepancies about the actual assault. However, those discrepancies are not at all material, when there was attack by 7-8 persons, discrepancies are bound to occur and witnesses in such incident are not supposed to identity the actual assailants, or count the blows given by each of the assailants.
14. PW8 Mohd. Qayyum was cross-examined on behalf of the defence. He also narrated the story as was narrated by the other two witnesses regarding the incident. As regards identity of these appellants, he also gave their identification marks. A discrepancy did occur about the signal given on which, other 7-8 persons arrived on the spot. That discrepancy is as to whether signal was given by accused No. 2 or by someone else. That alone is not sufficient to disbelieve the witness. As regards the act of accused No. 1, this witness has stated that accused No. 1 gave blow by sharp edged weapon on the left hand and another blow on left thigh. Learned advocate Mrs. Chincholkar, for the appellants submitted that accused No. 1 was not having a weapon, so, this statement of the witness, therefore, cannot be accepted. This submission cannot be accepted because of the reason that initially when the accused had arrived in the field, he was not having the weapon, but other assailants were called and attack began, the possibility of taking weapon by this accused from others cannot be ruled out. As regards the identity, when PW8 Mohd. Qayyum was cross-examined, he has stated that accused before the court are the dacoits who had committed the offence. Further he has stated that they had changed their appearance at the time of incident. Because of this fact, submission is made that this identification is no identification. When this witness gave other details of identification, his statement that at the time of incident, they had changed their appearance alone will not be sufficient to discard his testimony. Some omissions were brought on record in his cross-examination and the omission is in respect of manner of wearing saree and it is not in relation to the colour of the saree. Hence, that omission also is not fatal. No material discrepancies could be brought on record in the evidence of this witness also.
15. The evidence of three eye witnesses is found consistent. These appellants were in the company of these witnesses for a period of about two to three hours. The story narrated by the witnesses makes it clear that these appellants and one unknown person were in the company of the witnesses and were making negotiations of sale of gold and said negotiations were going for two to three hours. These witnesses had, therefore, ample opportunity of observing these accused. When such a incident did occur, by memory and by observation, they can identify the accused in the court. Not only this, immediately after the incident, complaint came to be lodged and in the said complaint (FIR), marks of identification of these appellants were given, on the basis of which these appellants were identified. As such, the identity of these appellants is proved beyond doubt by the evidence of these three eye witnesses. The trial court did consider the evidence of these three eye witnesses and came to the conclusion that the identity of these appellants is established. The evidence of these witnesses proved the marks of identification by their observations and memory. When the identity of the accused is established by their evidence, because of non-holding of test identificatino parade, their testimony cannot be rejected and the conclusions drawn by the learned Judge that their identity is established cannot be said to be illegal. Therefore, the finding of the learned Additional Sessions Judge that the identity of these appellants is established is perfect and cannot be said to be a perverse finding.
16. Another evidence on record also corroborates the story deposed by the eye witnesses. The evidence of these witnesses is consistent that the dacoits including these appellants assaulted the three witnesses and took away the cash from them. The medical evidence as recorded above corroborates their story that they were being assaulted in that incident. There is one material relevant circumstance i.e. the arrest of accused Nos. 1 and 2 in that night itself. After registration of the crime, PW12, the Investigating Officer gave intimation to the police Headquarter and from Headquarter, information was passed on to all the Police Stations. PW6 PSI Balkrushna Shezal, attached to Pathri Police Station was on petrolling duty in that night near village Devanandra and while he was on petrolling duty, he found appellants No. 1 and 2 in suspicious condition. He, on suspicion, detained them and brought them to the Police Station. Each one of them were having a bag with them. Search of the accused was taken in presence of PW3 panch witness Satwa Shelke. In the search of accused No. 1, cash of Rs. 11,000/- as well as white paijama (trouser) was found in his bag. In the search of accused No. 2, a blue colour saree was found in her bag with a cash of Rs. 10,000/-. Same was seized under panchanamas (Exh-89 and Exh-90). PW3 Satwa corroborated the story narrated by PSI Shezal (PW6). In the cross-examination of panch witness Satwa, it was brought on record that PSI Shezal was known to him. But on that count alone, testimony of the witness cannot be rejected. PSI Shezal gave intimation to Manwat Police Station and PW12 API Anwar Khan took custody of these accused in that night itself. PW12 Anwar Khan recorded arrest panchanamas of these accused. Very material fact came on record from the arrest panchanama. The descritpion of accused No. 1 is recorded in the arrest panchanama and it mentions that there was a old mark of injury on the forehead at the centre, which was mentioned to be a mark of identification of accused No. 1 in the complaint lodged immediately after the incident. There is no explanation from the accused persons about their act to proceed from that village at such an odd time in that night having such huge cash. That is a circumstance against them which remained unexplained by the accused. No doubt, there cannot be identification of the currency notes as none of the witnesses have disclosed that there were any marks of identification on the cash seized from the accused. But from the fact, that these accused were arrested immediately within four hours of the incident in that night itself possessing that much cash without there being any explanation from them as to how they had obtained that cash and as to why at such odd time, they were proceeding having that much cash with them, it can be said that after the incident, they had fled away from the spot and while running away, they were caught in the night with stolen property. As stated above, the evidence given by the witness about the clothes of the accused, is corroborated by the seizure of the said clothes from them and the fact of appearance of old scar on the forehead of accused as disclosed by witness is proved by the arrest panchanama.
17. In addition to the above evidence, there is evidence about identification by sniffer dogs. On the next morning, PW12 in presence of panch witness visited the spot and one handkerchief, one cap as well as yellow metal bangles were found at the spot. PW7 Goldsmith Prajot Udavant gave certificate on examination of those bangles that those were not golden bangles but were of brass. By calling sniffer dogs, smell of the articles found on spot was given to it and on the basis of it, in the identificatin parade, held by Sniffer Dog Master/Handler, sniffer dog pointed out accused No. 1. No doubt, the identification by sniffer dog is a weak piece of evidence and much reliance cannot be placed on it, but the evidence of dog handler PW9 Kashinath Sonkamble and the reports (Exh-111 and Exh-112) prove the identification of accused/appellant No. 1 with the help of sniffer dog. The appearance of yellow metal bangles and cap on the spot corroborates the story deposed by witnesses about the place of incident and the version of the witnesses that the bangles were thrown towards them purporting to be the golden bangles and when those were verifying the bangles, immediately, they were attacked and the cash was taken away from PW8 Mohd. Qayyum. Appearance of the bangles on the spot corroborates that story.
18. Other evidence laid at the trial is about discovery of weapons on the information given by the accused, but in absence of any other marks of identification of weapons, that evidence is not too much material.
19. The learned Additional Sessions Judge relying upon the evidence of three eye witnesses and the circumstance of arrest of the accused in that night with the stolen cash and the other articles, recorded the order of conviction against these accused. As there was no evidence in proof of participation of other accused who were unknown persons and there being no evidence about their identity, they have been acquitted. The identity of these appellants being found established by the evidence of three eye witnesses, that finding recorded by the learned Judge cannot be said to be perverse. No infirmities are found in appreciation of evidence or arriving at the conclusions. Considering the facts, circumstances and the legal position discussed to above, the interference in the order of conviction and sentence recorded against these appellants by the learned Additional Sessions Judge is not warranted. But this appeal preferred by the appellants/accused Nos. 1 and 2 is found without any merit, and hence, it needs to be dismissed, confirming the order of conviction and sentence recorded by the trial court against the present appellants.
20. In the result, the appeal of the appellants is hereby dismissed, confirming the judgement of conviction and sentence recorded by the Additional Sessions Judge, Parbhani, against them for the offence punishable under Section 395 r.w. 397 of the IPC in Sessions Case No. 63/2004.