Dattatrya S/O Ankush Sasane vs The State Of Maharashtra
2006 Latest Caselaw 1192 Bom

JUDGMENT

M.G. Gaikwad, J.

1. Heard learned Counsel, appearing for the respective parties.

2. By preferring this appeal, the appellant (original accused No. 4 in Sessions Case No. 26/2003) challenged his conviction for the offence punishable under Section 395 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-, in default to suffer simple imprisonment for four months and also conviction under Section 397 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-as well as conviction and sentence for the offence punishable under Section 341 of IPC and conviction and sentence for the offence under Section 3 and 4 read with Section 25 of the Arms Act, 1959, recorded by the learned Additional Sessions Judge, Sangamner. It may be mentioned here that the original accused No. 1 had preferred Criminal Appeal No. 571/2004 before this court, challenging his conviction and sentence in Sessions Case No. 26/2003 and said appeal was partly allowed maintaining the conviction for the offence under Section 341, 395 and 397 of IPC, but his appeal was allowed by setting aside the conviction and sentence for the offence punishable under Section 3 and 4 read with Section 25 of the Arms Act, 1959 by judgement dated 07-04-2005.

3. The facts relevant for the decision of this appeal, in brief, are as under. The incident in question was alleged to have taken place on 19-06-2003 at about 11.45 a.m. on Dhandarphal (Khurd) road near brick kiln situated at the bank of Pravara river. Complainant Dhondiba Rambhau Bhojane and his colleague Bhagwan Namdeo Kanwade were proceeding on a motor cycle No. MH-17/B-7794. They were carrying with them a cash-box containing cash of rupees ten lacs. They had collected this cash from the Marketyard Branch ofA.D.C.C. Bank, Sangamner. The said amount of rupees ten lacs was given in currency notes in the following denominations.

(1) Rs. 5 Lacs - In the form of currency notes of Rs. 500/-.

(2) Rs. 3 Lacs - In the form of currency notes of Rs. 100/-.

(3) Rs.50,000/- - In the form of currency notes of Rs. 50/-.

(4) Rs.1.5 Lacs - In the form of currency notes of Rs. 10/-.

At the relevant time, Clerk Bhagwan Kanwade was riding the said motorcycle and complainant Dhondiba Bhojane was sitting on the pillion seat. When they reached near brick kiln, complainant Dhondiba Bhojane noticed that one blue colour UNO car was coming in high speed from their back side. He, therefore, asked Bhagwan Kanwade to take the motorcycle by the side of the road. However, the said car over-took their motorcycle and halted just in front of it. As the car had come abruptly, the motorcyclist Kanwade lost his balance and the motorcycle fell on the ground. That time, cash box was in the hands of complainant Bhojane. As soon as the car was stopped, five persons got down from the said car and they threw chilly powder towards the complainant Bhojane and Kanwade. However, as Kanwade had put his sun glasses, thechilly powder did not cause any damage to him. Immediately thereafter, two persons who had got down from the car started assaulting complainant Bhojane and Kanawde. One person of slim appearance and having black complexion assaulted Bhojane on his back with an iron bar and the other person who was wearing blue shirt assaulted Kanwade by meamsn of a weapon like a small sword. As a result of the same, Kanwade sustained bleeding injury. One person out of them who was having beard, snatched the cash box from the hands of Dhondiba Bhojane and then all those dacoits fled away by the same car towards Nimgaon. Thereafter, both complainant Bhojane and Clerk Kanwade went back to A.D.C.C. Bank, Branch Dhandarphal (Khurd). They informed the incident to the Branch Manager who then intimated the said incident to the police. Injured complainant Bhojane and Kanwade were sent to Sangamner for medical treatment. In the meantime, a message was given to the Branch Manager of A.D.C.C. Bank, branch at Nimgaon about the incident and they were informed that car had proceeded towards Nimgaon direction. The moment police were informed about the dacoity i.e. at about 12.15 noon, Police Inspector Tulshidas Pawar informed the said fact to the Deputy Superintendent of Police and proceeded towards the place of offence. By the time he reached there, he came to know that the dacoits have gone towards village Pemgiri. He, therefore, proceeded towards that direction. When thecar of the dacoits reached near Pemgiri, due to some mechanical defect, it halted there and the occupants of the car ran away towards the hill which was near from the said place. However, the villagers who had seen the car proceeding towards Pemgiri, had chased the said car. At that time, two Police Constables had also chased the dacoits. Ultimately, accused No. who was running from the said hill, was caught by the two Constables with the help of the villagers. Similarly, the accused No. 1 was also caught while running from the hill. The accused No. 2 was found possessing two bundles of currency notes of Rs. 100/-denomination and the same were wrapped in one handkerchief. Police then arrested the said accused persons. Police Inspector Tulshidas Pawar then went to Tambe Hospital where complainant Bhojane was shifted and recorded his statement. On the basis of the said complaint, offence came to be registered vide C.R. No. 95/2003. Thereafter, he visited the place of offence and the place of panchanama came to be recorded. On interrogation of accused No. 1, he made a statement before the Police that he would point out the place where he had concealed the cash. Accused No. 1 led police and panchas towards one field and from that place, he took out one bag containing cash amount of rupees four lacs. All those bundles having labels of Banks and Patsanstha came to be discovered.Accused No. 4 (i.e. present appellant) was alleged to have been apprehended by the villagers of Mirzapur. PW24 Police Inspector Tulshidas Pawar came to know that villagers of Mirzapur had apprehended this appellant. He, therefore, immediately went to village Mirzapur. In presence of PW16 Bhaskar Walve, the panch witness, search of the appellant was taken and in the personal search, cash of Rs. 1,50,000/-was found with him. That cash was in the form of three bundles of denomination of currency notes of Rs. 500/-, each containing 100 notes and each having label of A.D.C.C. Bank, Branch at Sangamber. PW24 Police Inspector Pawar recorded arrest panchanama as well as seizure panchanama (Exh-110) and cash came to be seized.

4. Police then sent requisition to Tahsildar, Sangamner for holding test identification parade. Accordingly, PW15 Rahul Mundake, Tahsildar, held test identification parade of all five accused on 02-07-2003. In the said test identification parade, complainant Bhojane identified accused No. 1 to 5 while eye witness Bhagwan Kanwade identified accused Nos. 1 to 4. After completing other formalities of investigation, charge-sheet came to be filed against the accused persons for the offence punishable under Sections 341, 395 and 397 of Indian Penal Code and under Sections 3 and 4 read with Section 25 of theArms Act, 1959 in the court of Judicial Magistrate First Class, Sangamner, who committed the case to the court of Additional Sessions Judge, Sangamner.

5. Learned Additional Sessions Judge, Sangamner framed charge (Exhibit-19) against original accused Nos. 1 to 5 for the offences mentioned above. The charge was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. Their defence was of total denial.

6. In order to prove the charge levelled against the accused the prosecution examined in all twenty seven witnesses and also produced certain documents.

7. After considering the evidence adduced by the prosecution, the trial court came to the conclusion that the evidence of complainant Bhojane and eye witness Kanwade is trustworthy and from their evidence, coupled with other circumstantial evidence, the prosecution proved beyond reasonable doubt that accused Nos. 1 to 5 were armed with deadly weapons and they robbed the cash of rupees ten lacs from complainant Bhojane and eye witness Kanwade and thus committed the offence of dacoity. All accused Nos. 1 to 5 have been held guilty of offences punishable under Section 395, 397 and 341 of I.P.C. and Sections 3 and 4, read with Section 25 of the Arms Act, 1959.

8. Feeling aggrieved with the said order of conviction and sentence, as stated above, accused No. 1 had preferred Criminal Appeal No. 571/2004, which came to be decided by judgement dated 07-04-2005, confirming the order of conviction and sentence for the offence punishable under Section 341, 395 and 397 of I.P.C. However, the appellant in that appeal (Criminal Appeal No. 571/2004) came to be acquitted of the offence punishable under Sections 3 and 4 read with Section 25 of the Arms Act. Thereafter, original accused No. 4 preferred present appeal which came to be admitted by order dated 25-07-2006.

9. On behalf of this appellant, learned advocate Shri Girase challenged the order of conviction on the following grounds.

[i] Arrest of the accused by the villagers and police is suspicious as none of the villagers or Police Constable who apprehended the accused is examined;

[ii] Seizure of cash from the accused is also suspicious as PW 24 Investigating Officer Police Inspector Pawar did not record the information of arrest of accused in the Station Diary. Evidence of panch witness PW 16Bhaskar Walve shows that before he called, the accused was already in the custody.

[iii] There is no evidence to show that the cash allegedly seized is the stolen property (no identification).

[iv] Evidence of eye witnesses is inconsistent and there appears no opportunity to them to see the faces of the accused at the scene as chilly powder was thrown.

[v] Test identification parade is not reliable as Police Officer was present at the time of identification parade and there is also possibility of accused shown to the witnesses prior to identification parade.

[vi] There is inordinate delay in holding the test identification parade.

In view of above lacunae, according to learned advocate Shri Girase, the judgement of conviction is not justified and not sustainable.

10. On the other hand, learned APP Shri U.K. Patil submitted that this appeal of the appellant/original accused No. 4 is without anymerit. He has pointed out that in the FIR (Exh-54), description of the dacoits with the clothes on their persons was given. One of the dacoits was shown wearing blue T-shirt. The arrest panchanama (Exh-110) of the accused/appellant makes it clear that at the time of his arrest, he was wearing a blue T-shirt. As regards the identity of this accused/appellant, Shri Patil also submitted that PW 1 Dhondiba Bhojane and PW 7 Bhagwan Kanwade who are the injured eye witnesses identified this accused as one of the dacoits. They have identified the labels of the bank found pasted on the bundles of the currency notes seized from the accused. Shri Patil also submitted that though there may be some discrepancy, the evidence of Tahsildar PW15 Mundake proves that PW 1 Bhojane and PW7 Kanwade identified this appellant/accused in the test identification parade. Hence, according to Shri Patil, learned APP, the identification of this appellant/accused in the test identification parade as well as in the court by two injured eye witnesses and the fact of revocery of cash of Rs. 1,50,000/-from this accused is sufficient evidence to prove the complicity of the accused/appellant in the incident. Hence, the order of conviction and sentence recorded against this appellant needs no interference.

11. The order of conviction against this appellant is recorded relying upon the evidence of complainantPW 1 DhondibaBhojane, PW 7 Bhagwan Kanwade, PW 15 Tahsildar Rahul Mundake, PW 16 Bhaskar Walve and the evidence of the Investigating Officer PW 24 Police Inspector Tulshidas Pawar. While critisizing the evidence of these witnesses, learned advocate Shri Girase made submission that both the eye witnesses of the incident PW 1 Bhojane and PW 7 Kanwade admitted that before the assault on them, chilly powder was thrown and their eyes were damaged. Under these circumstances, it cannot be said that they had an opportunity to see the assailants. Hence, their evidence is not sufficient on the point of identity. It has also been submitted that at the time of their earlier statements, they did not give description of the assailants or the dacoits. They made positive statement that they can identify one or two accused. However, in the test identification parade, they calimed to have identified all five accused. Because of this discrepancy also, their evidence is not reliable. It has also been pointed by Shri Girase that PW 15 Tahsildar Rahul Mundake has not followed the procedure for holding the test identification parade. Police officers were used to call the witnesses for identification parade. One of the witnesses admitted that the Police Inspector was present throughout the test identification parade. According to Shri Girase, these factors are sufficient to discard the evidence about the alleged test identification parade. Asregards the recovery of the stolen property - cash, he also submitted that the cash was admittedly not produced in the court. There is no evidence about identity of the said cash as a stolen property. The fact as to from which place this appellant/accused was arrested by the police is also not established. Therefore, under these circumstances, the evidence about seizure of the stolen property - cash from this appellant cannot be accepted. In view of these submissions made by Shri Girase, on behalf of the appellant/accused, the evidence of the witnesses needs to be scrutinized to find out as to whether PW1 Bhojane and PW 7 Kanwade had an opportunity to identify the accused before the trial and whether the evidence of these witnesses about identification is worthy to be relied upon.

12. PW 1 Dhondiba Bhojane was working as a Peon and PW7 Bhagwan Kanwade was working as a Clerk in Ahmednagar District Central Cooperative (A.D.C.C.) Bank Limited, Branch at Dhandarphal (Khurd) in Sangamner Taluka. Both of them have stated that on 19-06-2003, payment of an amount of rupees twenty two lacs was to be made to the farmers. That much amount was not in balance in their branch. Hence, both of them had gone to Sangamner to fetch cash from the A.D.C.C. Bank, Marketyard Branch at Sangamner. PW 1 Dhondiba Bhojane has stated that for withdrawal ofcash of rupees ten lacs, he had submitted a slip, Branch Manager approved it and then cashier of that Branch supplied cash of rupees ten lacs to them. Both of them described the denomination of the cash of rupees ten lacs. They obtained cash bundles of Rs. 500/- currency notes, cash of rupees three lacs in the denomination of Rs. 100/- currency notes, cash of Rs. 50,000/-in the denomination of Rs. 50/-currency notes and cash of Rs. 1,50,000/- in the denomination of Rs. 10/- currency notes. According to them, they put the entire cash in a cash-box and put a lock thereto. Thereafter, they decided to proceed to Dandharphal (Kh.) on a motorcycle. PW 7 Kanwade was driving the motorcycle and PW1 Bhojane was on pillion seat of the motorcycle and cash box was kept with PW1 Bhojane. During the investigation, a tin box (article No. 4) was discovered and witness identified the same. Both of them have stated that while they were proceeding on a motorcycle by the bank of Prvara river near village Dhandarphal, one car in blue colour came in high speed from their back side. The car driver overtook the motorcycle, turned it and came in front of the motorcycle. According to PW 1 Bhojane, cash box in his hand fell down on the ground. That time, chilly powder was thrown from back side. PW7 Kanwade also narrated the same story that car came from back side and overtook his motorcycle and stopped in front of his motorcycle. Both of them have stated that fivepersons were travelling by that car. Out of them, one had thrown chilly powder towards the witnesses. PW1 Bhojane has specifically stated that five persons got down from the car and one of them gave blow of hard pipe on his back. Hence, he left the cash box and motorcycle and ran away upto a distance of ten feet and that time, he had seen PW 7 Kanwade was being assaulted by those persons. PW 7 Kanwade has also stated that after five persons came out of the car, one person threw chilly powder on his face and another person started assault with sharp weapon like a sword and that time, two persons rushed towards PW 1 Bhojane who was standing at a distance of fifty feet. The version of these two witnesses is consistent that five persons came out of the car and they assaulted them. As both of them deposed that out of the five persons, one person threw chilly powder towards them, an argument is advanced that because of chilly powder which fell in the eyes of these witnesses, there was no possibility of these witnesses identifying the accused. But there is no substance in this contention. Their version is consistent that first they have seen those persons who got down from the car, which was stopped in front of their motorcycle and thereafter, one of them threw chilly powder. Their version is consistent that out of five persons, two persons rushed towards PW 1 Dhondiba Bhojane and remaining two assaulted PW 7 Kanwade. Because of thisstatement, submission is advanced that at the most, each one of them can identify two persons only. Hence, their evidence about identification of five culprits/dacoits cannot be believed. About this incident and arrival of the car from back side and taking over the motorcycle, cross-examination of the witness was held. PW1 Bhojane has stated in his cross-examination that they were not expecting that the car will crush them. Further, he has stated that PW 7 Kanwade fell down from the motorcycle. He has also stated that at the relevant time, he was not having specs. In further cross-examination, he has stated that he had identified all five accused as he had seen the faces of all five accused and he was also able to give the description of few of the accused. In the complaint lodged by him, he gave description of two persons and alleged that PW7 Kanwade will identify others. But as regards throwing of chilly powder, he has not stated that because of chilly powder thrown at the time of incident, his eyes were damaged and he could not identify the assailants. PW 7 Kanwade also stated that one person threw chilly powder on his face, but he made positive statement that as he was wearing his gogle, the chilly powder thrown by the dacoits towards him did not affect his eyes. He was confronted with his earlier statement and an omission has been broughton record about the wearing of specs by him, but because of that minor omission, his testimony cannot be rejected. It is thus clear from the evidence of PW1 Bhojane and PW 7 Kanwade that they had seen five accused persons coming out of the car which was stopped in front of them. They were being assaulted by them and the incident was going on for about four to five minutes. Hence, they had ample opportunity to identify the accused persons. Their evidence on the point of identification, therefore, cannot be rejected on the ground of alleged chilly powder being thrown towards them.

13. Let us now consider as to whether there is any discrepancy in relation to the evidence of PW1 Bhojane and PW7 Kanwade about the identity of assailants on spot, because they claimed in the court that they had identified all five accused and according to learned advocate Shri Girase, at the time of their earlier statement, they have stated that each one of them could identify two persons only.

14. PW 1 Dhondiba Bhojane in his complaint alleged that after the car was stopped in front of their motorcycle, one person with a beard snatched cash-box from him. Another person who was slim and having black complexion gave blow by an iron bar on his back. Third person with blue T-shirt assaulted PW7 Kanwadeby weapon like sword. Thereafter, the assailants ran away. In further part of the FIR, he alleged that one another persons with yellow shirt and two slim assailants were identified by him. No doubt, he alleged that he can identify the person with blue shirt and another with beard and PW 7 Kanwade may identify others. Because of this statement in the FIR, submission is made that he is specific that he can identify two persons only who assaulted him, but after reading entire FIR, such inference cannot be drawn. In the witness box, he narrated that five persons came out of the car and out of them, one gave pipe blow on his back. Hence, he left the cash-box and started running. Other persons were beating PW 7 Kanwade. According to him, two persons came towards him having weapon like sword and he made request to them not to assault. According to him, at the time of test identification parade, he identified all five accused. In the cross-examination, attempts were made to show discrepancy in his evidence. It was suggested to him that there were four persons in the car, but he denied the said suggestion. No doubt, he made positive statement in the FIR and in the witness box also that two persons had assaulted him and he could identify them, but there is no inconsistency in his statement that in all five persons came out of the car and he had seen them before the assault. Not only this, but he stated that two out of the five personsrushed towards him and started assault and remaining three persons were beating PW 7 Kanwade. This incident did occur in a broad day-light in an open space. Hence, there was ample opportunity for him to identify the assailants. It cannot therefore be said that he has improved the story of identification of all five accused. Same is the position of evidence of PW 7 Bhagwan Kanwade. He also disclosed that in all five persons came out of the car, one of them threw chilly powder, another one started assault on him by sword. Out of the remaining three persons, one rushed towards PW1 Bhojane and started assault on him, and finally, one person amongst them took cash-box and putit into the car and thereafter they fled away. he made positive statement that five accused before the court are the same persons who had assaulted them and had taken away the cash. No doubt, he has stated that the accused who is of black complexion is the person who had assaulted him. In the cross-examination, he was confronted with his earlier statement and an attempt is made to show that at the time of his earlier statement, he disclosed that he could identify two accused only. Though initially, he denied that he had made statement that he could identify two assailants, he admitted that he made statement before police that he can identify those accused to whom he had seen.Investigating Officer PW24 Police Inspector Tulshidas Pawar proved that contradiction stating that statement (Exh-133) was was made by PW7 Kanwade before him that out of the five accused , if two persons are brought before him, he can identify them. Exhibit-133, the alleged earlier statement is to the effect that out of five persons who had ran away, if two are brought before him, then he can identify them. That was a vague statement that if two persons are brought before him, he can identify them. But it is not his statement that he could identify two persons only. It has relevance with his earlier statement and it can be inferred that he made this statement that he can identify two persons out of five who had actually assaulted him. Hence, because of this contradiction, it cannot be said that he made improvement in the story. No contradiction has come on record in his evidence about the story narrated by him that five assailants came out of the car and rushed towards them and out of five assailants, two assaulted him and another assaulted PW1 Bhojane and one took away the cash-box. He had ample opportunity to identify five assailants who had got down from the car and rushed towards the car. Assault on him and PW1 Bhojane was within a distance of ten feet. Considering this distance also, it cannot be said that he had no opportunity to see five assailants. As such, no improvement is found in the story narrated by him. Hence, it is clear from the evidence of PW1 Bhojane and PW 7 Kanwade that in the broad day-light, when this incident occurred and they being assaulted and cash was taken-away from them, they had ample opportunity to identify them. When such a serious incident had occurred, it creates long lasting impression in the mind of the witnesses because of which they can identify those persons even after lapse of time. As such, their evidence on the point of identification of assailants is not doubtful. Hence, evidence given by them that they identified this appellant out of the five assailants before the court cannot be doubted as suggested by the defence.

15. Let us now consider the evidence of prosecution about the arrest of this appellant and seizure of cash of Rs. 1,50,000/- from his custody. The trial court accepted the evidence of Investigating Officer PW 24 Tulshidas Pawar as well as evidence of PW16 Bhaskar Walve and recorded finding that stolen property - cash is recovered from this appellant. In relation to the evidence of these witnesses, learned advocate Shri Girase, on behalf of the appellant made submission that at the trial, no witness who had caught this accused/appellant is examined. Allegations are that villagers had caught hold this appellant with the help of two Police Constables. Neither the villagers nor those two Constables areexamined. In the arrest panchanama (Exh-110) also, their names are not disclosed. The Station Diary entry about the information received by PW24 Police Inspector Pawar about arrest of this accused is also not produced on record. In view of these circumstances, arrest panchanama (Exh-110) and the evidence of seizure of cash from this appellant is not worthy to be relied upon. In view of these submissions, it is necessary to examine the evidence of PW 16 Bhaskar Walve and the Investigating Officer PW 24 Police Inspector Pawar. According to PW24 Police Inspector Pawar, on 20-06-2003, he was in search of the accused/appellant who was then absconding and PW 24 Pawar got information that this appellant was arrested with the help of the villagers at village Mirzapur. Hence, he immediately had gone to village Mirzapur. This appellant was found caught hold by the villagers. He took search of the accused and cash of Rs. 1,50,000/-was found with him and it was seized under panchanama (Exh-110). PW16 panch witness Bhaskar Walve is the resident of village Mirzapur itself. According to him, in the alleged morning, police called him near the temple. Another panch Gopinath was also present there. Villagers and this accused/appellant was also there. Search of the accused was taken in his presence. Three bundles of currency notes of Rs. 500/- i.e. total cash of Rs. 1,50,000/-was found in possession of the accused andsame came to be seized under panchanama (Exh-110). This panchanama (Exh-110) also mentions very fact. It also mentions that on the bundles of the currency notes, there were labels of A.D.C.C. Bank, Branch at Sangamner with date 17-06-2003. This panchanama is the panchanama of arrest of this appellant as well as seizure of cash from him. The description of the clothes on his person is also recorded and he was found wearing a blue colour T-shirt. The FIR as well as both eye witnesses - PW1 Bhojane and PW7 Kanwade in their evidence disclosed that one of the assailants was wearing blue colour T-shirt. In this panchanama, it is mentioned that this accused was being arrested by the villagers and police. Admittedly, PW 24 Police Inspector Pawar has not apprehended this accused. No other police staff or villager is examined who had apprehended this accused. However, fact remains that PW 24 Pawar in presence of PW16 Bhaskar Walve arrested this accused/appellant at Mirzapur on 20-06-2003 and seized cash of Rs. 1,50,000/- consisting of three bundles of currency notes of Rs. 500/- denomination. In the cross-examination of panch witness PW 16 Bhaskar, it was brought on record that when this arrest was made, about 100 to 150 persons were present. In the remaining cross-examination, it was suggested that cash was not seized in his presence and he has signed the panchanama on the say of police. The witness denied this suggestion. In thecross-examination of Investigaing Officer PW 24 Pawar, only suggestions were given that false arrest panchanama was recorded. This appellant was produced before the learned Judicial Magistrate (First Class) on 20-06-2003 itself. No doubt, it was possible to examine the Police Constable and the persons who had apprehended this appellant, but they were not examined. However, solely on that ground, the evidence of arrest of this accused at Mirzapur and recovery of cash of Rs. 1,50,000/- from him under panchanama (Exh-110) cannot be discarded.

16. The evidence referred to above established beyond doubt that cash of Rs. 1,50,000/- is recovered from the appellant/accused. Question remains as to whether it can be said to be cash which PW1 Bhojane and PW7 Kanwade had obtained from the A.D.C.C. Bank, Branch at Sangamner. It is specifically mentioned in the panchanama (Exh-110) and also deposed by the witnesses that on the bundles of currency notes of Rs. 500/-, there were labels of A.D.C.C. Bank, Branch at Sangamner. PW 7 Kanwade has stated that the cashier of A.D.C.C. Bank, Marketyard Branch at Sangamner had handed over cash of rupees ten lacs to him out of which an amount of rupees five lacs was in the form of denomination of currency notes of Rs. 500/-. It is not disputed that by the order of the court, the cash has been returned and the labels were retained duringinvestigation. Said slips were shown to PW7 Kanwade and he has stated that those were the slips of the cash obtained by him. PW 8 Madhukar Kothamire was serving as a Cashier in the Marketyard Branch of A.D.C.C. Bank at Sangamner. He has stated that on 19-06-2003, PW 7 Kanwade filled in the requisite slip for withdrawal of rupees ten lacs. The accountant passed it. Then, he took out the cash from the strong room. Further, he states that there were slips of different banks on the bundles of the notes. Exhibit-68 shown to him is the receipt and according to him, on the back side of the said receipt, he has mentioned the number of the notes and the description of the bundles with signature of PW 1 Bhojane and PW 7 Kanwade. He also gave positive statement that after seizure of the cash, he was called by the police and the cash seized from the accused persons, total Rs. 9,05,000 was shown to him and according to him, the bundles of the said cash were the bundles which he had handed over to PW 1 Bhojane and PW 7 Kanwade. In the cross-examination, he has confirmed that the demand slip has been verified by him. Cash box was to be carried by S.T. bus and to that effect, there is also an endorsement on the back side of Exhibit-68. It has also come in the cross-examination that cash bundles were shown to him and there were labels on the said bundles. PW9 Gopal Kshatriya, who was then Cashier in Sangram Nagari Pat Sanstha has been examined. According to him, on 17-06-2003, they had deposited an amount of rupees six lacs in A.D.C.C. Bank, Branch at Sangamner in S.B. account. Counter slip of deposit (Exh-71) is also produced by him on record. Said cash was deposited in the A.D.C.C. Bank and said cash was handed over to PW7 Kanwade. Slip (Exh-71) supports his version. PW10 Bhikaji Nehe is the cashier in B.J. Khatal Cooperative Bank Limited at Sangamner.

According to him, on different dates, they have deposited cash amount with the A.D.C.C. Bank, Marketyard Branch at Sangamner and he also produced documentary evidence in support of it. Thus, this evidence makes it clear that the cash was handed over to PW 1 Bhojane and PW 7 Kanwade. Out of that cash, an amount of Rs. 1,50,000/- i.e. three bundles of currency notes of Rs. 500/- with labels of A.D.C.C. Bank came to be seized from the accused/appellant and it is proved beyond doubt that the cash seized from the appellant/accused is the cash taken away by the accused persons by assaulting PW1 Bhojane and PW 7 Kanwade. As discussed to abvoe, the fact that the cash of Rs 1,50,000/-out of the stolen property is recovered under panchanama (Exh-110), is proved by the evidence of PW16 Bhaskar Walve, the panch witness and the evidence of PW24 Police Inspector Tulshidas Pawar.

17. The evidence of two eye witnesses who had sustained serious injuries in this incident i.e. PW 1 Dhondiba Bhojane and PW 7 Bhagwan Kanwade identified the accused/appellant in the court. Their evidence was found trustworthy and reliable. As regards identity of this accused/appellant, both of them have stated that he was wearing blue T-shirt at the time of the incident. Panchanama (Exh-110) also makes reference of blue shirt on his person. That part of the story is corroborated by the FIR also. These witnesses had sustained serious injuries in the incident which fact is established by the evidence of Medical Officer PW 27 Dr. Kacheria. Dr. Kacheria examined PW7 Kanwade and noticed in all four injuries, one was incise wound over head at right parietal region, second injury was C.L.W. over head at left parieto occipital region, third was contusion over left hand finger tips and fourth one complaining of burning seen. He had also examined PW1 Bhojane and noticed blunt trauma over left shoulder as certified in certificates (Exh-142 and Exh-143) which evidence remained unshattered. Thus, this medical evidence corroborates their version that at the time of incident, they have been assaulted by the dacoits and they had sustained serious injuries. They have been assaulted in a broad day-light and there was ample opportunity for them to see the faces of the assailants. No material is brought on record to showthat they are interested in roping the present appellant by sidelining the real accused who had assaulted them. They have identified this appellant in the court. Though some discrepancies were pointed out to create suspicion about identity of this accused by these witnesses, those are not material. No doubt, the identification of the accused in the court is a weak piece of evidence, but as observed by the Apex Court in the case of State of H.P. v. Lekh Raj and Anr. , evidence of test identification parade is not substantive evidence. Test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. The Apex Court further observed that there may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such corroboration. As stated above, the trial court accepted the evidence of these witnesses who had ample opportunity to see the faces of the assailants when the assailants had caused serious injuries to them and took away the cash from them. Their evidence is corroborated by recovery of stolen property -cash from this appellant. Hence, this evidence by itself issufficient to confirm the order of conviction as recorded against this accused/appellant. However, in this case, the prosecution also led evidence about the test identification parade and the said evidence is accepted by the trial court. It is, therefore, necessary to see as to whether this appellant is identified in the said test identification parade and whether that evidence is worthy to be relied upon.

18. As regards the test identification parade, the trial court placed reliance on the testimony of PW1 Bhojane, PW 7 Kanwade and PW 15 Tahsildar Rahul Mandake. Learned advocate Shri Girase made submission that the evidence of these witnesses about the test identification parade is not worth to be relied upon. According to him, at the time of this test identification parade, Police Officer was present. The mandatory procedure about the test identification parade is not followed by the Tahsildar and there are circumstances which shows that the witnesses had opportunity to see the accused prior to this test identification parade. It has to be, therefore, seen as to whether because of these circumstances, the evidence about test identification parade is worth to be relied upon. In support of the submission that because of the above circumstances, the evidence about test identification parade cannot be relied upon, learned advocate Shri Girase relied upon the decisionsin the following cases.

(1) Asharfi and Anr. v. the State

(2) 1996 CRI.L.J. 724 Islam Molla v. the State of W.B.

(3) Tahir Mohammad, Kamal Girendra Singh and Anr. Bedri Singh and Anr. v. State of M.P.

(4) Budhsen and Anr. v. State of U.P.

19 In the case of Vilas Vasantrao Patil v. State of Maharashtra, reported in 1997 (1) Mh.L.J. 27, this court held that the evidence of identification can only be relied upon if all the chances of suspects being shown to the witnesses prior to test identification are eliminated. Further, it is observed that to ensure that the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in jail, the faces of suspects were kept veiled and no one had the opportunity to see them. For this proposition, a reference was also made to the decision of Allahabad High Court in the case of Asharfi and Anr. v. The State, .

In the case of Islam Molla v. the State of West Bengal, reported in 1996 Cri.L.J. 724, the Calcutta High Court held that the test identificationparade was held after eight months and no explanation is coming for the said delay. Hence, it is likely that accused would have been shown to identify the witnesses. The test identification parade, therefore, cannot be relied upon.

The Apex Court in the case of Tahir Mohammad, etc. v. State of M.P. , has disbelieved the evidence of identity as the accused were found kept in the Police Station for two days after the occurrence and the witnesses without any warning of error identified the suspects as culprits without giving any description of the dacoits.

In the case of Budhsen and Anr. v. State of U.P. , the Apex Court observed that as a general rul, the substantive evidence of witnesses is a statement made in the court. The evidence of identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime. The purpose of a prior test identification, therefore, is to test andstrengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. In view of the facts in that case, the test identification parade could not be considered to provide safe and trustworthy evidence on which the conviction of the accused could be sustained.

The ratio in all these cases is clear that test identification parade is a process in investigation to confirm the truthfullness about the identity and before relying upon the evidence of identity in the test identification parade, the suspicious circumstances like showing accused prior to test identification parade, circumstance about an opportunity to the witnesses to see the accused prior to test identification parade needs to be removed. Then and then only, test identification parade can be relied upon. With this background, let us consider the evidence of the witnesses.

20. As regards the presence of Police Officer at the time of alleged test identification parade, it is pointed out from the evidence of PW1 Bhojane and PW 7 Kanwade that police were present at the time of thisparade. PW 1 Bhojane in paragraph No. 4 of his deposition has stated that police had called him in the Tahsil Office and 20 to 25 persons were asked to stand together and he was asked to identify the culprits and there, he has identified all five accused. However, in the cross-examination, he has denied that police had shown the accused to him while they were brought in the campus of Tahsil Office. Description of the sub-jail which was at a distance of 50 feet from the Tahsil Office is brought on record. He also admits that police constable used to come to the room where they were sitting and were taking them to the hall where the identification parade was held. In further cross-examination, he has admitted that at the time of alleged test identificatino parade, Police Inspector was present in the hall and in his presence, he was asked to identify the accused and he identified them.

PW 7 Kanwade has stated that in Tahsil Office, test identification parade was held and he had identified four accused. However, he has denied in the cross-examination that before the identification parade, police had shown the accused to him. He also denied that when the accused were brought to the room where identification parade was held, he had an opportunity to see them.

Thus, nothing is there in the evidence of above witnesses to show that prior to the test identification parade, accused were shown to them, but it is clear from their evidence that during this test identification parade, police were present and their services were being used to call them from the room where they were sitting to the hall where identification parade was held when repeatedly they were called for identification of each one of the accused. The evidence of PW 15 Tahsildar Rahul Mundake makes it clear that on the date of identification parade, witnesses were introduced with the panch witnesses. PW 1 Bhojane was asked to sit in computer room and PW 7 Kanwade was kept in another room and from the said rooms, they were called for test identification parade. According to him, after these formalities, witness PW1 Bhojane was called and he identified accused from the dummies. The descripancy is pointed out that only six dummies were called for this test identification parade. No doubt, he has admitted that he had asked his Peon to call the police and with the help of police, one after another, accused were brought and taken out of the hall where the parade was held. It is clear from this evidence that services of Police Officer were used for bringing the accused in the hall from the sub-jail. However,no circumstances are appearing on record to show that the witnesses were kept at such a place that they had an opportunity to see the faces of the accused persons prior to the test identification parade. On account of procedure of specific number of dummies, this test identification parade cannot be said to be vitiated. Unless circumstances are pointed out creating suspicion that witnesses had an ample opportunity to see the accused prior to test identification parade, the evidence about this test identification parade cannot be rejected. As such, it is proved by this evidence that in the test identification parade also, this appellant/accused was identified by both the witnesses.

21. The evidence of two eye witnesses, PW 1 Bhojane and PW 7 Kanwade who had sustained serious injuries, identified the accused in the court. As stated above, though that piece of evidence is a weak piece of evidence, these witnesses were found trustworthy and reliable. They had no grounds or the reasons to rope this appellant falsely in this crime leaving the real culprits. The circumstances as proved by their evidence are that they have been assaulted and serious injuries were caused. The incident did occur in the broad day-light. The assailants were travelling by a car. After they took over the motorcycle of these witnesses and came in front of the motorcycle, all ofthem came out of the car. They were engaged in different activities i.e. two of them assaulted one witness and other two witnesses assaulted other. One took out the cash-box from PW1 Bhojane. The entire incident took place within a distance of 10 to 15 feet. Hence, from these circumtances, it is clear that the witnesses had ample opportunity to see their faces. Under these circumstances, their evidence about the identity of the accused cannot be doubted and when the trial court accepted that evidence, this appellate court cannot disturb that finding. This can be said to be an exceptional case wherein the evidence of these two witnesses about identity of assailants in the court needs to be accepted even in absence of test identification parade. That evidence is also corroborated by the circumstance of recovery of stolen property - cash from the appellant which recovery is proved by the evidence of an independent panch witness PW16 Bhaskar Walve and by the evidence of PW 24 Investigating Officer Pawar. In addition to this, there is also evidence about identity in the test identification parade. Thus, the order of conviction recorded against this appellant/accused for the offence punishable under Section 395, 397 and 341 of IPC, by the learned Additional Sessions Judge relying upon the above evidence cannot be said to be illegal nor it suffers from any infirmity.

22. The appellant came to be convicted for the offence punishable under Section 395, 397 and 341 of IPC and also for the offence punishable under Sections 3 and 4 read with Section 25 of the Arms Act. The evidence referred to above proved beyond doubt that this appellant is one of the dacoits who wrongfully restrained the witnesses on the road by overtaking their motorcycle and halting their car in front of motorcycle with an intention to commit offence. It is also established that all of them had assaulted the witnesses and took away the cash from them and thus committed offence under Section 341, 395 and 397 of IPC.

23. The appellant alongwith others is also convicted for the offence punishable under Sections 3 and 4 read with Section 25 of the Arms Act. Admittedly, in this incident, incise wounds have been caused to PW 7 Kanwade on his head. Injuries have also been caused to PW1 Bhojane. As regards assault on PW7 Kanwade, he has stated that one person gave blow by sharp weapon like sword on his head and two others had assaulted PW 1 Bhojane. PW 1 Bhojane also narrated the said facts. According to him, PW 7 Kanwade was assaulted by sharp weapon like sword on his head and two persons assaulted him. He tried to identify the weapon (article No. 9 before the court) stating that this weapon was used for assault, but did not discloseas to who assaulted him by that weapon. Under these circumstances, positively it cannot be said that this appellant was having weapon sword with him at the time of alleged assault and it is doubtful, out of five accused who was possessing weapon sword and caused injuries to these witnesses. Hence, the order of conviction for the offence under Section 3 and 4 read with Section 25 of the Arms Act as against this appellant/accused needs to be set aside by partly allowing this appeal.

24. In the result, appeal is partly allowed. The order of conviction and sentence passed against present appellant/original accused No. 4 in Sessions Case No. 26/2003 by the Additional Sessions Judge, Sangamner for the offence punishable under Sections 395, 397 and 341 of IPC is hereby confirmed. However, the order of conviction and sentence passed against this appellant/original accused No. 4 for the offence punishable under Sections 3 and 4 read with Section 25 of the Arms Act is set aside and the appellant/accused No. 4 is acquitted of the offence under Section 3 and 4 read with Section 25 of the Arms Act.