2015 ALL MR (Cri) 925
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

MRIDULA BHATKAR, J.

Vijay More @ Viju @ Rahul Shantaram More Vs. The State of Maharashtra

Criminal Appeal No.1110 of 2012,Criminal Application No.520 of 2013,Criminal Appeal No.734 of 2012,Criminal Appeal No.608 of 2012,Criminal Appeal No.514 of 2012,Criminal Appeal No.583 of 2012,Criminal Appeal No.856 of 2012,Criminal Application No.1014 of 2012,Criminal Application No.909 of 2012,Criminal Application No.1168 of 2012,Criminal Application No.1183 of 2012,Criminal Appeal No.905 of 2012,Criminal Appeal No.970 of 2012

25th March, 2014

Petitioner Counsel: Mr. VIJAY HEREMATH, Mr. JAYESH A. VITHALANI, Mr. K. SANGHANI, Mr. MOHSIN KHAN PATHAN, Ms. APEKSHA VORA, Mr. GANESH GOLE with RITESH RATNAM, Mr. R.V. GUPTA
Respondent Counsel: Ms. A.A. MANE

Penal Code (1860), Ss.395, 397 - Dacoity - Evidence and proof - Prosecution case that accused persons looted bank at point of revolver and knife and took cash and also snatched mangalsutra and gold chain of one of bank employees - Incident of dacoity took place in broad daylight nearly for 8 to 10 minutes - Evidence of eye-witnesses that accused persons had neither put any mask nor covered their faces in any manner and thus, they had opportunity to see their faces - Evidence of all eye-witnesses on identification of only two accused persons is consistent and reliable - Panchanamas do not inspire confidence and do not establish prosecution case on point of recovery of articles for implicating other accused persons - Person not holding weapon at time of dacoity cannot be held guilty u/S.397 though he could be held responsible for offence u/S.395 i.e. committing dacoity - Witnesses could not tender consistent evidence regarding use of weapon by each of accused - Conviction of two accused persons who were identified by eye-witnesses is proper - Conviction of remaining accused persons set aside. (Paras 32, 33, 34)

Cases Cited:
Sheo Raj Vs. State, AIR 1964 ALLAHABAD 290 [Para 4]
Mohanlal Gangaram Gehani Vs. State of Maharashtra, 2013 ALL SCR (O.C.C.) 85=AIR 1982 SC 839 [Para 4]
Kunjumon @ Unni & Ors. Vs. State of Kerala, 2013 ALL MR (Cri) 329 (S.C.) [Para 14,32]
Sandeep @ Gotya Vishwanath Shinde Vs. State of Maharashtra, Cri.A. No. 412/2009, dt.11.7.2013 [Para 26]


JUDGMENT

JUDGMENT :- All these appeals are directed against the judgment and order dated 11.4.2012 passed by the Additional Sessions Judge, Sewri, Mumbai thereby convicting all the 7 accused for the offence of dacoity under section 395 of the Indian Penal Code sentencing them to suffer R.I. for 10 years and fine of Rs.5,000/- each, i/d RI for 9 months each. They were also held guilty for the offence under section 397 of the Indian Penal Code and were sentenced to suffer RI for 7 years each. They were also held guilty for the offence punishable under section 37(i)(a) r/w section 135 of the Bombay Police Act and were sentenced to suffer S.I. for six months each and to pay fine of Rs.100/- each or suffer S.I. for 8 days each.

2. Brief facts of the case are as under:

The incident of dacoity had taken place in the Oriental Bank of Commerce, Khar branch, S.V. Road, Mumbai on 16.8.2004. The appellants/accused have looted the bank at the point of revolver and knife and have taken cash worth of Rs.2,38,844/- and also snatched Mangalsutra and gold chain of one of the bank employees. The dacoity has taken place at 13.35 hours when the Bank Manager, PW1 Adityakumar Singh, was present in his cabin. The bank transactions were going on and the bank was to close at 2pm. It is the case of the prosecution that the respondents/accused Nos.1 to 5 entered the bank. Accused No.6 is a taxi driver and he was in the taxi standing outside the bank. Accused No.7 remained outside to keep a watch. Accused Nos.1 to 7 entered the bank with weapons. Accused No.3 was holding revolver. One person was holding a chopper. One was with revolver. The Manager, PW1, was asked to take out the purse. They made the Manager to enter the cash cabin. This incident has taken place at about 1.35pm. All the other accused persons pulled the computer wires and telephone cables and disconnected the same. There were four bank employees at the counters i.e., Laxmi Subramanian, PW4 Pranali Rasam, PW13 Vrushali Ravanang and PW5 Kuppa R. Raghunath. All those bank employees alongwith the Manager were asked to sit down in the cabin. They took the keys of the locker, took out cash and collected the cash in a nylon bag. One of the accused snatched the gold chain and Mangalsutra of PW4 Pranali Rasam. While doing so, they threatened the bank employees with their knife. One of the accused pasted a tape around the mouth and face of the Manager. They were speaking loudly, threatened them of their lives. Thereafter, they all locked them outside the cabin and left the bank. At that time, PW11 Santosh Ghag, who was working as a peon in the said bank, was out for bank work. He returned to the branch at around 1.45pm. He saw that though the door of the cash counter was closed and he was informed that there was a dacoity in the bank, the Manager asked him to go to the police station which was closeby and inform the police about the dacoity as all the telephone wires were disconnected. He went to the police at Khar Police Station and called them.

At that time, PW17, Vijay Dhatrak, Police Inspector, attached to Khar police station was on duty as SHO. He made entry in the station diary. He received the information of dacoity from PW11 Santosh Ghag. He alongwith PSI Sonawane and the staff left the police station and went to the spot. Police registered the offence at C.R. No.302 of 2004. They prepared spot panchanama and recorded statement of the Bank Manager, PW1 Adityakumar Singh, which is recorded as FIR (exhibit 86) in the presence of two panchas. They collected one adhesive tape. They had also taken some fingerprints from the cabin of the Manager and cash counter of the bank under panchanama, which is marked exhibit 45. Thereafter, he recorded FIR, which is marked as exhibit 86. Further investigation was carried out from 17.8.2004 by Dilip Shinde, API, attached to the Khar Police Station. He recorded the statement of the Bank Manager on 17.8.2004.

During the course of investigation, police received information on 6.9.2004 that two accused were arrested by the Crime Branch and they were named as the Jitendra Thakur, accused No.1 and Vijay More, accused No.2. They were accordingly taken in custody for the offence of dacoity on 6.9.2004 and arrested them. Thereafter, both the accused made voluntary statements and pursuant to those statements, discovery panchanamas were drawn in the presence of panchas respectively on 10.9.2004 and 13.9.2004 and the police recovered a bundle of G.C. Notes from both the accused. On 15.9.2004, other three accused, namely, accused No.3 Ravishankar, accused No.4 Velu and accused No.6 Sikander were transferred on 4.9.2004 from DCB, CID, in C.R. No.105 of 2004. Thereafter, on 25.9.2004, the other two accused i.e., accused No.5 Sameer @ Vijay Shaikh and accused No.7 Vijaysingh @ Salim Thakur, were again arrested on transfer warrant. On 19.9.2004, a knife was discovered under panchanama pursuant to the voluntary statement made by the accused No.2 Vijay. Thereafter, on 27.9.2004, the taxi was discovered on the voluntary statement made by accused No.6 Sikander and thereafter, the Mangalsutra was discovered and seized under panchanama pursuant to the voluntary statement made by accused No.4 Velu on 28.9.2004. The police recorded the statement of the jeweller from whom Mangalsutra was seized.

On 16.10.2004, test identification parade was conducted of the accused by the Special Executive Magistrate in Arthur Road Jail. The Complainant and the Bank employees and also the other witnesses identified the accused in the test identification parade. After completion of the investigation, the chargesheet was filed on 2.12.2004 in the JMFC and thereafter, the case was committed to the Court of Sessions on 4.12.2004.

3. Charge was framed on 29.10.2005 against all the accused. Evidence of 18 witnesses was tendered by the prosecution and the trial was concluded in the conviction of all these accused for the offences as mentioned above. Being aggrieved by the said judgment and order, the accused have preferred these 7 appeals.

4. The learned Counsel for the defence, on the point of identification, have relied on the Full bench judgment of the Allahabad High Court in the case of Sheo Raj vs. State, AIR 1964 ALLAHABAD 290 wherein it is held that the memo of test identification parade held by the Magistrate is not admissible without proof. The learned Counsel has also relied on a three-Judge Bench Judgment of the Supreme Court in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra, AIR 1982 SC 839 : [2013 ALL SCR (O.C.C.) 85] where the Supreme Court held that if the offender is not known to the witness before the incident and if identified for the first time in the Court, in the absence of test identification parade, the evidence of such witness is valueless and could not be relied upon.

5. The learned Counsel for the Defence have submitted that the case of the prosecution is not reliable as the witnesses had deposed contradictory to each other. It is submitted by the learned Counsel for all the accused that description of the accused was not given by any of the eye witnesses in their evidence and also at the time of recording of their statements. Their statements were recorded by the police and, therefore, the identification of these witnesses at the time of test identification parade and also in the Court is not believable. The SEO was not examined, so the evidence in respect of the test identification parade cannot be considered. The learned Counsel for the accused submitted that all the seven accused are collectively held guilty under section 397 of the Indian Penal Code. However, considering the ingredients under section 397 of the Indian Penal Code, if there is no recovery of the weapon and if the weapon is not used by the offender at the time of the dacoity, then that particular accused cannot be held guilty under section 397 of the Indian Penal Code. All the learned Counsel for the accused have submitted that the observations of the learned Sessions Judge are factually wrong while appreciating evidence of all the witnesses.

6. Learned Counsel for accused No.1 stated that PW1 Adityakumar has deposed that accused No.1 entered his cabin. He was raising his voice and was holding knife in his hand. The recovery panchanama in respect of the knife by the PW2 is false. He submitted that PW1 did not attribute any role to accused No.1 at the time of test identification parade.

7. The learned Counsel for accused No.2 argued that the PW1 has identified accused No.2 at the time of identification parade. However, in paragraph 25 of the cross-examination, he has admitted that a police constable was present at the time of the test identification parade. As the SEO is not examined, evidence in respect of the procedure, which is required to be followed, at the time of test identification parade is not properly tendered by the prosecution. Though PW4 Pranali has identified accused No.2, no specific role is attributed to him. PW5 has stated in para 4 of the evidence that accused No.2 was holding knife. Evidence is not clear whether he put the cash in the nylon bag or not. It is further argued that in paragraph 7 of the evidence, PW5 has stated that at the time of identification parade, he identified two persons who took Mangalsutra and chain and he pointed out accused No.2 and accused No.4 as the same persons. However, the learned Counsel submitted that no role of snatching either the chain or Mangalsutra is attributed to the accused by any other witnesses. The evidence of panch witness PW7 Jessi Mendonca on the point of recovery of bundle of 100 G.C. currency notes of Rs.20/- denomination (exhibit 54 and 55) cannot be believed. The learned Counsel submitted that the cross-examination by the accused No.2 was shown in person as his advocate was absent and it is recorded as declined when the witness was examined on 19.7.2008. He submitted that no proper opportunity was given to the defence by the learned Sessions Judge to cross-examine to accused No.2 by cross-examining the material witness PW7, who said about the discovery against the accused No.2. Hence, the trial is vitiated.

8. The learned Counsel for Accused No.3 submitted that PW1 Aditya has stated that he put up revolver on his head and he took him outside his cabin and made him to sit facing the wall. Even in the identification parade, he recognised him. The learned Counsel submitted that he was looking at the wall. The learned Counsel submitted that there is no recovery of the revolver from accused No.3. He further submitted that PW4 and PW5 though have stated in the evidence that they identified accused No.3 at the time of test identification parade and also identified in the Court at the time of recording of evidence, PW4 and PW5 did not lead evidence in respect of identifying accused No.3 and attributing any role to him at the time of actual incident. Same is the case of PW13. She also said that she identified him at the time of test identification parade but in the Court, no role is attributed to him with regard to the commission of crime. Evidence of PW6 Basraj, learned Counsel submitted, is not reliable on the point of recovery of G.C. notes, (exhibits 51 and 52) and five loose notes of Rs.20/- denomination (article E). He submitted that the panch has worked twice in the investigation of Khar Police Station. He is a regular stock panch and, therefore, his evidence is not to be believed.

9. Learned Counsel for accused No.4 submitted that accused No.4 is innocent and falsely implicated in this case. The recovery of Mangalsutra is shown at the instance of accused No.4. However, the said Mangalsutra when produced before the Court was not in a sealed condition. The identification of the said Mangalsutra by the PW4 is of no use as that article 'L' does not bear any special mark of identification. He further submitted that no knife is recovered though the witness has stated that the knife was shown by the accused No.4. No knife is recovered from the accused No.4. He submitted that the accused was arrested on 4.9.2004 and thereafter, identification parade was not arranged immediately but it was conducted after more than one month i.e., on 16.10.2004. The articles were seized on 29.9.2004. Thus, there is a delay in the identification. He submitted that the evidence of PW4 is not reliable as she admitted in the cross-examination that she had been to the police station for about 4 to 5 times and she remained there for nearly 20 to 25 minutes. The learned Counsel submitted as there is no discovery of the weapon from accused No.4, section 397 cannot be applied. He submitted that section 397 cannot be attracted as there is no recovery of the weapon from accused No.4. Further, the evidence of jeweller PW10 Kukraj Hydanram Bainiwal, who was handed over the Mangalsutra, cannot be believed, as no receipt of purchase of Mangalsutra is produced and seized from the witness PW10. PW13 Vrushali in para 5 has stated in para 5 that she has identified accused No.4 at the time of the test identification parade. However, she identified the five suspects at the time of test identification parade including accused No.4 and she identified accused No.4 in the Court. However, she did not attribute any specific role to the accused No.4. The learned Counsel submits that the evidence of PW9 Gurudev Zende, who was a chance witness, who stated that he was outside the bank, has identified the accused No.4 at the time of test identification parade. However, he has also identified three persons when he claimed that he saw two persons.

10. Learned Counsel for accused No.5 submitted that the PW1 Aditya has attributed him a role that he asked the keys and then in a nylon bag he collected cash. The learned Counsel submitted that in the cross examination,in para 20, he admitted that he was sitting down facing towards the wall and except two persons, he did not see any other person in his cabin. She submitted that if at all PW1 was made to sit looking at the wall, then there was less opportunity for him to see the accused. She pointed out that he has stated in para 34, he had given the description of five persons. However, he admitted that the said description is not recorded by the police in his statement under section 162. The learned Counsel for the accused No.5 argued that there is no recovery of nylon bag from this accused. She submitted that the presence of accused No.5 is doubtful. The amount and numbers of the G.C. notes which are found in the panchanama do not tally with the G.C. notes, which are produced before the Court.

11. Learned Counsel for the accused No.6 submitted that accused No.6 is a taxi driver, who was waiting outside the bank. As per the case of the prosecution, two persons came from the bank and fled away in the said taxi. He was arrested on 15.9.2004. He submitted that in evidence, PW4 Pranali Rasam has identified accused No.6 and attributed the role that he had come to the bank. He is one of the dacoits, who had entered the bank. She also identified accused No.6 at the time of test identification parade. However, she did not attribute any role to him. He submitted that no other eye witness besides PW4 have identified accused No.6. Mr.Zende, PW9, has mentioned that he could not give the number of taxi in his evidence and did not identify him at the time of test identification parade. PW12 Hamidabanu is the owner of the taxi but she did not say anything incriminating against the accused No.6 but has only deposed that accused No.6 is a taxi driver and he used to take the said taxi on rent. The learned Counsel submitted in the cross-examination that she has admitted that there were many drivers, who used to take the taxi on rent. It is further submitted that in the list of documents (exhibit 14), the recovery of money in the panchanama is produced. However, no reliance can be placed on it, which is produced alongwith exhibit 14.

12. Learned Counsel for accused No.7 has submitted that PW1 Aditya, PW5 Kuppa Raghunath and PW13 Vrushali have identified him. PW1 has stated that he was standing outside the bank. He argued that only PW1 has stated that accused No.7 was standing outside the bank and looking in the bank and he has identified him in the Court. However, in the crossexamination, he has admitted that though he gave the description of the said person, who was standing outside the bank, it was not mentioned in the complaint. He has admitted that the person was looking towards the bank and also towards the road. The learned Counsel submitted that the Bank Manager had no sufficient opportunity to look at him and remember how he was looking. PW4 Pranali did not mention anything about him. PW5 Kuppa Raghunath has stated in para 4 of his deposition that accused No.3 Vijay Thakur is the same person, who was standing outside the bank. In para 8, in the Examination in Chief, PW5 has stated that at the time of the identification parade, he identified two persons, who took the cash in the nylon bag and one person was standing outside. He identified accused No.5, who took out the cash and then identified accused No.7 as Vijay Singh Thakur, who was standing outside the bank. He submitted that PW13 Vrushali did not state anything against accused No.7.

13. The learned APP has submitted that the prosecution has proved the charges against all the accused as all the witnesses corroborate each other. PW1, PW4, PW5 and PW13 are the bank employees and are the eye witnesses in the case. She submitted that these witnesses have identified the accused Nos.1 to 5 and also accused No.6. She submitted that the Bank Manager, PW1 Aditya, has identified the accused No.1, 2, 3, 5 and also accused No.7. PW4 Pranali was at the cash counter. She has identified accused Nos.3, 4, 5, 6 and has attributed a specific role to all the accused. She has mentioned that accused No.4 has snatched her Mangalsutra and chain. PW5 Kuppa Raghunath, who was also working at the cash counter, has identified accused Nos.2, 3, 4 and 5 alongwith weapons. PW13, Vrushali has identified accused Nos.1, 2, 3 and 4 and has attributed specific role to each one of them. She relied on the evidence of PW9 Santosh Ghag. She submitted that he is an independent witness, who was standing outside the bank and he saw two persons coming outside the bank and holding revolver. He identified accused No.4 as the same person holding the revolver. She submitted that all the witnesses identified the accused persons at the time of the test identification parade and also in the Court at the time of their evidence. The prosecution relied on the panch witnesses, who witnessed discovery of the weapons, currency notes and also mangalsutra. The panchanamas drawn under section 27 of the Evidence Act of these articles including the recovery of currency notes were proved through PW6, PW7 and PW8. PW6 has witnessed memo and panchanama, which are marked as exhibits 51 and 52 respectively where the currency notes i.e., two bundles of G.C. Notes of Rs.100 denomination and five loose notes of Rs.20/- (article F) were found at the instance of PW1. PW7 proved discovery panchanama at the instance of PW2 (exhibits 54 and 55) of one bundle of 100 G.C. notes of Rs.20/- denomination (article D collectively) through PW8 panch, discovery panchanama and memo were drawn which are marked exhibit 52 in which one bundle of 100 G.C notes of Rs.20/- denomination and also 5 loose notes marked article E, were discovered and seized. The learned APP submitted that on these bundles of G.C. notes, a stamp of Oriental Bank of Commerce was found. Alongwith this, there is also recovery of Mangalsutra (article L) and panchanama to that effect was drawn at exhibit 58. PW10 Kukraj Hydarnram Bainiwal is a jeweller, who has deposed that accused No.3 sold Mangalsutra to him and the said Mangalsutra was recovered from him.

14. The learned APP further submitted that PW11 Santosh was working as a peon in the bank and a station diary entry (exhibit 88) was made as there was an immediate reporting of the offence. The prosecution further relied on the recovery of taxi, at the instance of accused No.6 by PW14 Radheshyam Yadav, to which panchanama was drawn accordingly (exhibit 71 & 72). The prosecution also relied on the evidence of PW12 Hamidabanu Rashid, the owner of taxi. She confirmed that the taxi was given on rental basis to accused No.6. PW15 Prabhakar V. Gupta, has witnessed the panchanamas marked at exhibits 79 and 80, under section 27 of the Evidence Act, that a knife was recovered at the instance of voluntary statement made by the accused No.2 Vijay, which is marked exhibit 79. The learned Prosecutor submitted that on 16.10.2004, test identification parade was conducted and all the accused were identified by the prosecution witnesses. The articles which were seized from the accused persons were shown to the witnesses and after the identification of the articles, the statements of those witnesses were accordingly recorded. She submitted that in the Court also, the witnesses have identified the articles. She argued that though the SEO, who conducted the test identification parade, is not examined by the prosecution. The memo of test identification parade was produced before the Court under section 294 of the Cr.P.C. alongwith the application (exhibit 14). The learned Counsel further submitted that though the SEO is not examined, this is not fatal to the prosecution. She argued that the dacoity has taken place in broad daylight and the witnesses have deposed that at the time of commission on 16.8.2004, the offenders had not covered their faces. Thereafter, they again saw them on 16.10.2004 and have identified all the accused when the evidence commenced in 2008. She submitted that the evidence of identification of the witnesses in the Court is reliable and it is rightly accepted by the Sessions Court by giving a positive finding. The learned APP has submitted that unless contradictions and discrepancies affect the core of the prosecution case, not to be considered as significant and is not a ground to discredit the witnesses. In support of her submissions, she relied on the case of Kunjumon @ Unni & Ors. vs. State of Kerala, 2013 ALL MR (Cri) 329 (SC)

15. In all, the prosecution has examined 18 witnesses. PW1 Adityakumar, the Branch Manager of the Oriental Bank of Commerce at Khar (W) branch has filed the FIR about the incident of dacoity which had taken place at the bank on 16.8.2014 at about 1.35pm. He has stated that on that day, when he was working at the counter, some persons came to the bank. Out of them, one person entered the Chamber and at the point of revolver, he asked him to stand and face towards the wall. Then, the other person took his purse, put it in his bag. They took him in the hall and then beyond the counters. Four employees of the Bank were also at the counters. They pushed all of them in the cabin, asked them to sit on the ground, threatened them that they would kill them, if they resist. Then one person took the key of the cash cabin and opened the cabin; another person put the cash in the nylon bag, one person at the point of knife, snatched Mangalsutra of one of the employees. Thereafter, one person put an adhesive tape around the mouth of the Branch Manager. Thereafter, at the time of committing dacoity, they pulled all wires of the computers and telephones. One person was standing outside the bank. They all fled away by taking a total cash of Rs.2,38,844/-. Mr.Santosh Ghag, PW11, a peon with the Bank, was not present in the bank at the relevant time. He had gone out for some work. When he returned at around 1.45pm, he found that the door of the cash counter was closed and the Bank Manager, PW1, informed him about the dacoity in the bank. He immediately went to the police station.

PW7 Vijay Dhatrak was on duty as a station house officer at Khar police station. He has stated that a peon Santosh Ghag from the Bank reported about the robbery which had taken place in the Bank. Mr.Dhatrak accordingly made entry in the station diary and alongwith his staff, went to the bank. He recorded statement of the Branch Manager, PW1 Aditya, which is recorded as FIR and marked as exhibit 37. He recorded statement i.e., exhibit 37 and also made entry in the diary after returning to the police station, which is marked exhibit 36. Thereafter, he drew spot panchanama (exhibit 43). He recovered the adhesive tape from the spot and also recorded statements of the bank staff PW4 Pranali, PW5 Raghunath, PW11 Santosh Ghagh. PW18 Dilip has stated that he had investigated Crime No.302 of 2004 for the offence of dacoity. He recorded further statement of Aditya Singh. Thus, these 4 witnesses stated about the commission of the offence. PW4 Panali, PW5 Kuppa and PW13 Vrushali, the staff of the bank, who were working at that time in the bank have corroborated PW1 Aditya by giving similar details as to how and at what time the dacoity has taken place. The prosecution has established the fact of the incident of dacoity at the Bank's Khar (W) branch. The witnesses have also established that a group of more than 5 persons had entered the bank and committed dacoity at the point of weapons and cash of Rs.2,38,844/- was stolen. Similarly, Mangalsutra of PW4 Pranali was robbed by the persons. Thus, the prosecution has established that the incident has taken place.

16. Whether the persons who have committed dacoity are the accused or not is the crucial question to be answered. The learned Sessions Judge has accepted the evidence tendered by the prosecution against all the 7 accused and has convicted all the accused under section 395 of the Indian Penal Code so also u/s 397 of the Indian Penal Code and u/s 37(i)(a) r/w 35 of the Bombay Police Act. Thus, all the accused are convicted under three charges.

17. In the case of dacoity or robbery, when the persons are unknown to the witnesses, identification of the accused is a key issue and evidence tendered by the eye witnesses is the most material evidence. All the eye witnesses in the present case have stated that at the relevant time, the persons who committed dacoity in the bank, neither put any mask nor covered their faces in any manner. The incident had taken place in broad daylight at 1.35 pm. It appears that the incident of dacoity occurred nearly for 8 to 10 minutes and thus, they had an opportunity to see the faces of the offenders. Keeping these circumstances in the background, the evidence of all the eye witnesses is to be assessed. PW1 Aditya has stated that a person who entered first was holding a revolver. He asked him to face towards wall. Another person having a gun asked him to take out his purse. Then, another person entered the cabin; put the purse in the bag. Then some persons were shouting 'kill him'.. 'kill him'. Then the first person, who pointed out revolver at him, took him out, led him beyond the counter where the other staff members were standing. Then he said that one person had put a chopper around the throat of PW5 and another person had put chopper near the neck of Laxmi Subramaniam. Then one person asked him the key of the cabin. He handed over that key to him. In his evidence, he has identified accused No.5 as Sameer, as the person who demanded the key. He also said that accused No.5 alongwith accused Nos.4 and 2 collected the cash out of his cabin. Then accused No.4 pulled the Mangalsutra of PW4 Pranali and accused No.2 tied a tape around his mouth. Thus, he specifically attributed the role to accused Nos.2, 4 and 5. He identified one person standing outside the bank and looking at the bank as accused No.7. He also identified accused No.3 as a person, who pointed a gun at him. Then he said that accused No.1 was one Jitendra Thakur, who was raising voice and was holding knife. He did not identify accused No.6.

18. PW4 Pranali has deposed that one person had kept a knife on the neck of the Manager PW1 Aditya. However, PW1 did not say that somebody had put knife on his neck but has stated that a revolver was kept on his neck. Then, PW4 has stated that one person kept knife on her neck and snatched Mangalsutra and gold chain. She identified that it was accused No.4 Velu, who at the point of knife, snatched her Mangalsutra. PW1 has stated that he saw accused No.4 had pulled Mangalsutra of PW4 Pranali and did not mention of use of knife at that time by accused No.4. PW4 Pranali has stated that she had seen accused No.4 on an earlier day in the Bank alongwith accused No.5 Sameer and she identified accused Nos.4 and 5 in the Court as the persons, who had committed the dacoity. Then she identified accused Nos.6 and 2, who had entered the bank. She identified a knife, revolver (article 1) and chopper, which were used at the time of the commission of offence. Thus, her evidence corroborates the evidence of PW1 on the point of identification of accused Nos.4 and 5.

19. PW5 Kuppa Raghunath has stated that five persons had entered the bank. He said that accused No.3 had pointed out chopper to him. He has stated accused No.4 entered the cabin of the Manager. However, he says that accused No.4 pointed out a pistol at him and took him outside the Chamber. Then he made the Manager to sit and also asked him and Laxmi to sit. He also stated that accused No.4 removed the mangalsutra and chain of PW4 Pranali. He stated that accused No.5 was with a nylon bag and he took out cash and put in the nylon bag. He says that accused No.7 Vijay Thakur was standing outside the Bank. He identified accused Nos.4 and 5 and then he also stated in every subsequent paragraph of his deposition that accused No.7 is the same person, who was standing outside the bank.

20. Then there is another witness i.e., PW13 Vrushali. She said that 4 to 5 persons entered the bank. One of them went to the cabin of the Manager. Then, they all made them to sit, took out knife and asked her to sit. The persons forced Laxmi Subramanyam and PW4 Pranali to sit on the ground. One person entered the cabin of the Manager with revolver and brought him out of the cabin. One person covered the mouth of the Manager with a cloth. One person took keys from PW4. One person pulled her Mangalsutra. One person took out the cash. Thus, she attributed various acts to those persons and in further evidence, she identified accused Nos.1, 2, 3, 4 and 5, who were sitting in the dock as the persons who had entered the bank. In her evidence, she did not attribute any specific role to these accused while identifying them.

21. One more witness other than the bank employees examined by the prosecution is a passerby and a chance witness i.e., PW9 Gurudev Zende, who was standing outside the Bank at about 2pm when he saw two persons coming out of the bank and they boarded a taxi and went. They were holding revolver in their hands. He stated that he had identified those persons when he was called for identification parade. He identified accused No.1, who came out from the bank. Then, he also identified accused No.4 and accused No.7, who came out of the bank and sat in the taxi.

22. This is the total evidence on the point of identification of the accused. In the present case, the identification parade was held on 16.10.2004 by the SEO. However, the prosecution neither examined the SEO nor the panchas, who were present at the time of the test identification parade. At the relevant time, the report of the test identification parade was produced. The witnesses have deposed in their evidence that they have identified the accused person at the time of the test identification parade. Under section 291-A of Cr.P.C., memo can be proved. It is to be believed that the identification parade was conducted in Arthur road jail and these witnesses were taken for identification of the accused dacoits. However, witnesses were extensively cross examined on the point of procedure followed at the time of test identification parade. PW1 has given admission in the cross examination that at the time of identification parade, the police were present. It is obligatory on the part of SEO to follow the procedure laid down by law which is mentioned in the Criminal Manual. This procedure is required to be followed step by step as it eliminates all the possibilities of tampering, manipulations or deliberations in respect of the identification of the accused. If the procedure is not followed, then the evidence given by the witnesses on the point of identification becomes doubtful. If there would have been no cross-examination in respect of the procedure followed at the time of conducting test identification parade by the defence, then the memo of test identification parade could have been proved as it is by the prosecution. The present evidence of test identification parade is of no use to the prosecution. Thus, in the present case the evidence tendered by the eye witnesses accused persons in the Court on the point of identification is the only available substantive evidence to the prosecution.

23. Thus, the evidence of all the witnesses on the point of the identification is required to be weighed. As the incident of dacoity has taken place, the bank employees were definitely under shock and were terrorised. The dacoits were holding weapons as stated by the witnesses. They were holding chopper, knife, revolver and gun. There is no recovery of either revolver or gun but one knife is found. The recovery of knife is at the instance of accused No.2 and PW15, as panch, has stated about it under panchanama marked exhibit 79. Only PW4 has identified this knife. However, it is to be noted that PW1 has deposed that accused No.2 has tied the adhesive tape around his mouth. Thus, if at all, the adhesive tape was put around the mouth of PW1, at that time, he could not have held the knife and even if he was holding knife, PW1 did not say that accused was holding the knife. No witness says that the accused No.2 was holding knife at the relevant time. PW1 has stated that he has seen one person holding chopper around the throat of PW5 Krupa Raghunath and other person around the neck of Laxmi. However, he did not identify either of them. PW5 Raghunath has stated that one person pointed a chopper at him and he identified accused No.3 Ravi Shankar as the person who pointed out chopper at him. However, PW1 has deposed that accused No.3 Ravi Shankar is the one who pointed out gun at him and therefore, he identified him in the Court. Therefore, there is a confusion whether accused No.3 was holding a gun or chopper and whether Ravi Shankar threatened at the point of chopper to PW5 or whether he threatened PW1 at the point of gun or not. PW7 was identified as a person, who was standing outside the cabin of PW1 and also by PW5. However, it is difficult to believe this evidence because as per their version, accused No.7 was standing outside the bank. If at all, the person was standing outside the Bank and five persons had entered the bank and they were doing many activities and they also threatened the bank staff, it is very difficult to accept the identification of accused No.7 by PW1 and PW5. So also, the evidence PW9 Zende, who is a chance witness, is found very doubtful. At the relevant time, when he was standing outside the bank, two persons came hurriedly. They were holding revolver. They sat in the taxi and went away. It is true if a person is holding a revolver, it is not a normal behaviour and therefore, the person holding revolver definitely will catch the attention of all passersby. However, he was standing near the bank and those persons hurriedly sat in the taxi and went away. He identified accused Nos.1, 4 and 7. He stated that accused No.7 came out of the bank and was sitting in the taxi. He also saw accused No.4 and accused No.1 as they came out of the bank. Thus, when he claimed that he saw two persons with revolver, his evidence identifying three persons is discarded. However, the evidence of all the eye witnesses on identification of accused Nos.4 and 5 is found consistent.

24. Thus, there is sufficient evidence that accused No.5 was holding nylon bag. He took out cash and put it in the nylon bag and therefore they remember him. It is very natural for the bank people who deal with cash all the time to notice a person who is taking away the cash and putting cash in the bag. Witnesses have identified accused No.5 in the Court. They have also stated that they identified accused No.5 at the time of the test identification parade. The fact of holding of the test identification parade at Arthur Road jail is proved by the prosecution. However, the manner in which the parade was conducted, which is very important, is not proved. However, it is to be said that this undoubtedly is an opportunity to the witnesses to see the accused persons. If at all they had seen those persons earlier, their memory was revived and, therefore, when the accused Nos.4 and 5 came in the Court, they identified them. Moreover, accused No.4 & 5, as per the evidence of PW4 and PW1, have come one day prior to the incident in the bank and PW4 had an occasion to see them. The evidence against accused No.4 is also found cogent. Accused No.4 had pulled the mangalsutra of PW4 Pranali. Therefore, PW4 had every reason to remember the face of accused No.4 as he came near her and took away her mangalsutra. This was the special reason for her to remember his face. Moreover, accused No.4 had come to the bank on a day prior to the incident and at that time, PW4 had an opportunity to see him. Accused No.4 is identified by PW1, PW4, PW5 and PW13 and they all attributed him to the act of pulling of Mangalsutra. Thus, the evidence of these witnesses against the two accused with regard to their identification corroborate each other. Certain circumstances are in favour of the prosecution i.e., uncovered faces of the accused and opportunity to see them for a few minutes in broad daylight, is also found reliable. The learned Sessions Judge has rightly believed the evidence against these two accused. However, the evidence against other 5 accused persons on the point of identification is absolutely shaky. There are contradictions and hence, cannot be relied. It is to be noted that many times, when the offence of robbery or dacoity takes place, the witnesses shun the offence and the offenders also and, therefore, they naturally tend to accept that a person who is caught by the police must be the offender. Thus, the identification is somehow out of imagination which is genuinely thought as truth due to impact of the incident. The evidence of identification is always a master stroke in the case of robbery committed by unknown persons. The Court may seek corroboration based on circumstances i.e., recovery of either weapon or of the stolen articles, to support fact of identification.

25. On the point of recovery, the prosecution has tendered evidence of PW6 Basraj, who has stated that at the instance of accused No.3 Ravi Shankar, a currency note bundle of denomination of Rs.20/- with stamp of 'Oriental Bank of Commerce' and also five loose currency notes were recovered under Memorandum at exhibits 51 and 52 (article E). However, the A.P.P. cross-examined the witness and declared him hostile. Then the A.P.P. pointed out towards accused No.1 Jitendra Thakur as he was present in the police station and to which PW6 answered in the affirmative. Thus, there was confusion in the mind of PW6 whether it was accused No.3 or accused No.1, who made disclosure in respect of currency notes. PW7 Jessi Mendonca has deposed that on 13.9.20014, at the instance of accused No.2 Vijay More, a recovery of 100 G.C. notes of denomination of Rs.20/- was recovered and seized under memo of exhibits 54 and 55, marked article D. However, the cross-examination for accused No.2 is said as declined as his advocate was absent. Thus, a sufficient reasonable opportunity was not given to accused No.2 to cross-examine a material witness on the point of recovery of evidence which was adduced against him. PW8 Vishwanath Parshuram Sawant has deposed that on 10.9.2004 at the instance of accused No.4 Jitendra Thakur, 100 G.C. notes of denomination of Rs.20/- and 5 G.C. notes of denomination of Rs.20/- were recovered (article E) from Jitendra Thakur under memorandum exhibits 51 and 52. Thus, this witness was examined to prove exhibits 51 and 52 as PW6 was confused about identification. However, this witness in his cross-examination gave admission that he has acted as a panch in Khar police station for about 10 to 12 occasions. In the present case also, he was against called by the police on 29.9.2004 and panchanama of identification of mangalsutra was drawn at exhibit 58. Thus, PW8 is a stock panch and, therefore, his evidence is appreciated with a pinch of salt. PW15 is Prabhakar Vishwanath Gupta. He has deposed that at the instance of accused No.2 Vijay More, a knife was recovered at panchanama exhibits 79 and 80. It is to be noted that this knife was identified by PW4. However, it is in the evidence of eye witnesses. Nobody has stated that accused No.2 was holding a knife at the time of the incident. Moreover, identification of these articles by the witnesses cannot be given much value as it is difficult to identify the weapons which were used at the time of dacoity. There is one more panchanama that is, PW14 Radheshyam Shriram Yadav. He has deposed that at the instance of accused No.6 Sikandar, a taxi which was used for running away, was identified under panchanama at exhibit 72. Such panchanama i.e., identification of taxi is of no value because it is not a recovery panchanama. Thus, the panchanamas do not inspire confidence and do not establish the case of the prosecution on the point of recovery of the articles. The trial Court ought not to have relied on these panchanamas. Thus, in the absence of any other circumstantial evidence, the case of the prosecution is not established against accused Nos.1, 2, 3, 6 and 7.

26. It was argued that the accused though were represented by the respective advocates at the time of the trial, when their advocates were absent at the time of cross-examination, the cross-examination by the respective accused is shown as declined. The learned Counsel for the accused have submitted that if the Court has denied the opportunity to cross-examine the witness, then, the benefit of such a situation is to be given to the accused in appeal. He relied on the decision of the Division Bench of this Court in the case of Sandeep @ Gotya Vishwanath Shinde vs. State of Maharashtra, Cri.A.No.412 of 2009 11.7.2013. In the said case, a proper and fair opportunity to the accused to defend himself was not given and the accused was not made aware that he wanted to cross-examine or not in the said matter. Therefore, the Division Bench has expressed a view that it was necessary to give an opportunity to the accused to cross-examine the prosecution witnesses which are material witnesses. So matter was remanded. In the present case, this Court has already held that there is no sufficient reliable decided on 11.7.2013 evidence against accused Nos.1,2,3,6 and 7. It is true that at the time examination of some of the witnesses, the advocates of some of the accused were absent and so the learned Judge has recorded that accused has declined to cross-examine the witness. While recording so, it is necessary for the trial Judge to mention that the accused is made aware of his right to cross-examination and then, the Court has to consider whether he wants adjournment or he is ready to go ahead with the cross examination. Therefore, on this point, cross-examination by accused No.4 and accused No.5 is now to be seen. At the time of the recording of the evidence of PW1, on 16.5.2008, nobody cross-examined the said witness and hence, cross-examination by accused Nos.4 and 5 is also shown as declined as their advocates were absent. The witness was crossexamined only by advocate of accused Nos.1 and 2. However, on 4.2.2011, again PW1 was recalled for further cross-examination and record discloses that on that day, the advocate for accused Nos.4 and 5 have cross-examined him. The cross-examination of PW4 was conducted by the advocate for accused No.4 and cross-examination of accused No.5 was stated - advocate absent, so declined by the accused. Crossexamination of PW5 is shown as declined by accused No.4 and 5 as their advocates were absent. Thereafter, the cross-examination of PW13 Vrushali, was declined by accused No.4 as her advocate was absent. However, she was cross-examined by the advocate appearing for accused No.1 and accused No.5. Thus, from the record it is found that further cross-examination of PW1 was conducted on 4.2.2011 by advocate Padam Singh for accused No.4 and accused No.5, who is appearing for accused No.1. Cross-examination of PW4 was declined by accused No.1 that is his lawyer Padam Singh. However, the advocate for accused No.5 was shown as absent and hence, declined. However, again, at the time of cross-examination of accused No.13, Mr.Padam Singh, has crossexamined him for accused Nos.1 and 5. Thus, it appears that accused No.5 has requested the advocate Mr.Padam Singh to appear for him. Therefore, PW1 so also PW13 were cross-examined by advocate Mr.Padam Singh for accused No.5. However, surprisingly, Mr.Padam Singh did not cross-examine PW5 for accused No.5 though he crossexamined extensively for accused No.1. Therefore, evidence of only PW4 cannot be taken into account for accused No.5. However, the evidence of PW1, PW4 and evidence of PW13 can be considered against accused No.5. So also evidence of PW1 and PW4 is to be read against accused No.4 as both the witnesses were cross-examined extensively by their respective advocates and cross-examination of PW13 and PW5 was declined as the Counsel for accused No.4 was absent.

27. Both the learned Counsel for the accused Nos.4 and 5 have challenged the identification of the accused Nos.4 and 5 mainly on the ground that there was delay in identification as the test identification parade was conducted nearly one month after their arrest and none of the witnesses gave description of the accused persons when their statements were recorded. It is true that in the evidence of all the witnesses, they did not describe the persons, who had come as assailants and thus, the submissions of the learned Counsel that there is no description of the accused persons given by the witnesses to the police officer immediately after the assault is correct. However, it is a duty of the police officer to question the witnsses and to ask them to describe the assailants. If such question is not put up, then the witnesses may not give the description as the witnesses do not know what is to be stated at the time of recorded statements under section 161 of the Criminal Procedure Code. It is already held that in the absence of proper proof of identification parade, the evidence of the identification of the accused Nos.1, 2, 3, 6 and 7 at the time of the test identification parade appears doubtful and therefore, is not believed. There are bound to be some contradictions in attributing the roles to the accused. However, if the witnesses corroborate each other on material points, then, the said evidence is found believable. PW1 has identified accused No.4 that he pulled Mangalsutra of PW4 and he has identified accused No.5 as who put cash in the nylon bag. This evidence is corroborated by the evidence of PW4 and PW4 has seen them on the earlier date. PW5 also corroborates the evidence on the point of attributing a specific role to PW4 and PW5. Under such circumstances, the identification of PW4 and PW5 is proved by the prosecution that they were present at the time of dacoity and they are one of the offenders.

28. It was argued that neither knife nor any weapon was recovered from accused No.4 and so also there is a contradiction in respect of the type of weapon he was holding. In the absence of recovery of a weapon, the offence of dacoity with use of weapon can be proved if the evidence of the eye witnesses is concrete. In the present case, PW1 has stated that accused No.4 Velu pulled mangalsutra of PW4 Pranali. However, PW1 did not say either accused No.4 or accused No.5 was holding any weapon.

29. PW4 has stated that accused No.4 pointed out knife and also took her mangalsutra and gold chain. She did not say that accused No.5 was holding any weapon. PW4 in her cross-examination for accused No.4, in paragraph 12, gve admission that she was very confused because of the dacoity and was very scared when they pointed out knife at her. She admitted that she did not mention in her statement that knife was rusted. Evidence of PW4 could not be tested in the cross-examination on the point of identification of accused No.4 and that he was holding knife when he pulled mangalsutra. In fact, when the dacoity took place, all the bank employees who are eye witnesses were definitely terrorised and in confused state of mind. She did not state anything about accused No.4 that he was holding any weapon.

30. PW5 has said that accused No.4 pointed out a pistol at him and took him outside the Chamber. Then he also attributed that he is the one who pulled Mangalsutra. However, he did not state that accused No.5 was holding any weapon. Then PW13 Vrushali has deposed that she has stated that one person asked PW4 Pranali to sit on the ground and took out her Mangalsutra. She identified accused No.4 and accused No.5, who were sitting in the dock. However, she did not say anything that either accused No.4 or accused No.5 was holding any weapon at the time of dacoity.

31. The evidence of all the eye witnesses definitely gave a correct picture of how the dacoity was committed by a group of 5 to 6 persons. Some of them were armed with weapons like revolver, knife or chopper. However, as per the evidence of each eye witness, a role attributed by them to each accused and their identification if sifted, then, it can be seen that there are inter se contradictions on the point of identification and the role attributed to all the accused except accused No.4 and accused No.5.

32. The learned Prosecutor has placed heavy reliance on Kunjumon @ Unni & Ors. (supra). In the said case, a girl of 11 years and her grandmother were robbed in their house by the accused person and another one. In the said case, the evidence was recorded nearly 6 years after the incident. No test identification parade had taken place and yet, the child witness was accepted by the Sessions Court and also conviction confirmed by the High Court. The said finding of proof of the identification by the child witness in the Court, in the absence of test identification parade, after six years, was held believable by the Supreme Court. In the said judgment, the Hon'ble Supreme Court held that the test identification parade should be held at the earliest so that the memory of the witness should not fade in the meanwhile. Not holding test identification parade is not fatal to the case of the prosecution. The Supreme Court held that the trial Judge will need to be circumspect in accepting the identification of an accused by a witness in Court if the accused is a stranger to the witness. In the said case, the girl was when robbed by one accused; the other one was standing outside. So, she had an opportunity to watch him closely. He had threatened her. It the said case, there was no meaningful cross examination of the child witness and it was recorded that her evidence is clear, unambiguous and nothing adverse was elicited during the cross examination and thus, her evidence was accepted. However, the evidence and facts in the said case are different from the facts of the present case. In the present case, there are 7 accused persons. Out of them, five went inside and one was standing outside. As per the case of the prosecution, the incident has taken place within 10 minutes. The accused were doing many activities like one holding chopper, one pointing revolver, another pulling off the wires, another bringing all the employees together and locking them in a cabin, collecting the cash, snatching Mangalsutra, chain, etc. Thus, naturally, the attention of the witnesses was divided on many persons and so also various activities. So also the witnesses are cross-examined at length by some of the accused on the point of identification and the incident. After considering the evidence of the witnesses, the identification by some of the witnesses of some accused can be accepted. However, the identification of all the witnesses of accused Nos.1, 2, 3, 6 and 7 is found doubtful.

33. Thus, on the point of use of weapon, evidence against the accused No.4 is found reliable and hence, is accepted. Under section 397 of the Indian Penal Code, at the time of considering dacoity, if an offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause grievous hurt, then, the offence under section 397 takes place. If a person at the time of committing dacoity, uses weapon to cause hurt, then, the offence is committed under section 397 of the IPC. Therefore, if a person at the time of dacoity is not holding any weapon or if any weapon is not used by a particular person, then he cannot be held guilty for the offence under section 397 though he could be held responsible for the offence under section 395 i.e., committing dacoity. Thus, in the present case, as the witnesses could not tender consistent evidence regarding the use of weapon by each of the accused but general statements were made that assailants were armed with weapons, all the accused cannot be held guilty for offence punishable under section 397. Thus, the finding given by the trial Court on the point of commission of dacoity i.e., under sections 395 and 397 and also under section 37(i)(a) r/w 135 of the Bombay Police Act holding all of them guilty under all these charges is to be set aside except against accused Nos.4 and 5. Accused No.5 also is to be held guilty of the offences under section 395 and not other sections.

34. In these circumstances, the impugned order is modified as under:

i) The conviction of accused Nos.1, 2, 3, 6 and 7 under all charges is set aside. Accordingly, the accused Nos.1, 2, 3, 6 and 7 are acquitted from all the charges.

ii) The conviction of accused No.4 under sections 395 and 397 of the Indian Penal Code and sections 37(i)(a) r/w section 135 of the Bombay Police Act is confirmed and maintained.

iii) The conviction of accused No.5 under section 395 of the Indian Penal Code is confirmed and the conviction and sentence under section 397 of the Indian Penal Code and section 37(i)(a) r/w 135 of the Bombay Police Act is set aside.

iv) On the point of quantum, the learned Counsel for accused No.4 has submitted that accused No.4 is in the prison since 15.9.2004 and the learned Counsel for accused No.5 has submitted that accused No.5 is in the prison since 6.10.2004 and therefore their sentence of 10 years imprisonment be modified as they have already completed more than 9 years and six months in prison. It is true that both the accused Nos.4 and 5 have been in prison for more than nine years and six months. Accordingly, accused Nos.4 and 5 are sentenced to the period of imprisonment already undergone from the date of their arrest.

35. All the appeals are disposed of in the above terms.

36. In view of the above, the criminal applications are also disposed of.

Ordered accordingly.