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CASE NO.: Appeal (crl.)  546 of 2008

PETITIONER: Pravin

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 25/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (Criminal) No.3112 of 2007) V.S. SIRPURKAR, J.

1.      Leave granted.

2.      Appellant herein one Praveen, son of Ramchander Sharma was  convicted by the Additional Sessions Judge for committing the offences  under Section 395 read with Sections 397 and 450 of the Indian Penal  Code (for short \023IPC\024).  Besides these offences, he was also found guilty  for committing offence under Sections 25(1-B)(a)  and Section 27 of the  Arms Act.  Along with the present appellant one other accused Harish was  also convicted and sentenced for committing the same offences.  Both of  them filed separate appeals before the High Court.  However, both the  appeals were dismissed by a common judgment passed by the High Court.   While Pravin, the present appellant (original Accused No.1) has come up  before us by way of the present appeal, the other accused has not chosen  to challenge his conviction.  We, therefore, are left with the case of  Accused No.1 alone.  A few facts would be necessary. 3.      A broad day-light dacoity took place on 8.9.2003 on Dena Bank  situated at Bapat Chauraha, Indore.  According to the complaint lodged by  Ashok Kumar Dubey (PW-1), Branch Manager, Dena Bank, at about 12.20  in the noon, two unknown persons had entered in his cabin and one of  them took out revolver from his shirt and pointed towards him, pushed him  out of the cabin and took him to the hall.  The other associates of the said  persons, who were present there, asked the other members of the staff  and about 30-40 customers to stand in the hall with their hands raised  upwards by pointing pistol towards them.  One of the associates stood at  the gate of the bank with pistol while other associates covered the other  persons in the hall.  The fifth associate, who appeared to be their leader,  had come inside the bank and asked for the keys of the strong room.  He  took one Mahender Chauhan towards safe by pointing pistol at him while  the other persons were asked to sit on the floor of the hall.  After about 10- 15 minutes, two accused persons had come out with the bags filled with  notes from the safe.  They had snatched one bag from Sh.S.M. Dholey,  staff member of the bank and stuffed it with the bundles of notes from cash  counter.  The accused then directed all the persons present there to move  to the gallery of toilet and shut them in a room.  They threatened that if  anyone used phone, then they would shoot such person.  Before that they  had collected the mobile phones of all the customers which they threw  outside the bank.  The mobile phones of two of the customers were,  however, not found.  The accused persons put lock on the gate of the bank  and ran away.  One customer, namely, Ashish Goyal broke the window  panes towards the road and attracted the attention of the people.  He only  had given information to the Police Control Room on Telephone No.100.   The total amount looted was about Rs.13,95,720/-.   4.      After committing the dacoity, the accused persons ran away towards  Meghdoot Garden in a Commander Jeep of grey or light blue colour and

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one Hero Honda Motorcycle.  The black bag of Shri S.M. Dholey, which  was taken away by the dacoits was also described to be made of  parachute cloth containing three bank cheques of Rs.10,000/- each of  Tehsildar Nazul, photocopy of valuation report of Plot of Siddhipuram,  auction forms of Tehsildar Nazul, statement of 2003 of Navlakha Branch  Bank, driving licence of Shri Dholey and 10-11 ball pens.  There were  number of persons who saw this incident, namely, Surendra Kumar,  Mahendra Chauhan, Ajay Tandon, S.M. Dholey, Deepak, M.L. Manharey,  Sangeeta Silawat of bank staff and Ashish Goyal, Prahlad Gotwal, Ujjwal,  Rahul, Sushil Verma, Hargovind Singh, etc., who were the visitors to the  bank.  All of them claimed that they would be able to identify the dacoits.   The descriptions of the accused persons were also given.  The person who  had entered the cabin of the Branch Manager and pushed him was about  25-30 years, height about 5 feet 6 inches.   He had wheatish colour  complexion and had unshaven face with small mustaches with Z-black  hairs.  He was wearing ordinary black goggles, cream colour pant and  shirt.  The second accused who was also of the same average height,  aged about 25 years, but was a clean shaved person.  The description of  the other dacoits were also given.  The person who appeared to be the  leader of the accused persons was about 26 years old.  His description  was also given.  It was claimed that most of the looted bundles of the notes  were bearing seal of S.S.C. and slips of Dena Bank.  It was claimed that  the accused persons could be identified on being seen.   5.      The report given by Ashok Kumar Dubey was recorded by SHO  Baldevsingh Thakur (PW-52).  The offence was registered under Sections  395 and 397 IPC and the investigation started.  Observation Memorandum  was drawn.  During the investigation, the Branch Manager Shri Ashok  Kumar Dubey (PW-1)produced the details of the looted notes, they were,  13 notes of Rs.1,000/- denomination, 264 notes of Rs.500/- denomination,  5108 notes of Rs.100/- denomination, 3045 notes or Rs.50/- denomination,  1347 notes of Rs.20/- denomination and 56083 notes of Rs.10/-  denomination.  The statements of witnesses were recorded. 6.      The present accused came to be arrested on 26.9.2003, i.e., barely  within 18 days of the incident.  Accused Harish was arrested on 8.10.2003.   On the basis of the discovery statement made by accused Praveen, the  registration documents of the Motorcycle, copy of the Dainik Bhaskar  Newspaper which had published the news regarding the dacoity, one letter  regarding the sale of Jeep No.MP-09-N-5946 by Atul Parmar to Praveen  Sharma and another letter regarding sale of jeep and 18 other items were  seized.  Similarly as per Seizure Memo (Exhibit P-18) one country made  Katta of .12 bore, 4 cartridges, 40 bundles of Rs.10/- denomination notes,  totaling Rs.40,000/- which were bearing the slips of Dena Bank and seal of  S.A.C were also seized.  One Slaty Colour Mahendra Jeep without number  was also seized from the accused.  Similarly 280 slips of Dena Bank and  other banks used on bundles of notes, 38 torn slips of S.M.S, 144 full slips  of S.M.S., 159 plastic paper for tying bundles, 58 rubber rings, 160 thin  rope of jute, 34 ordinary jute rope, 2 number plate of jeep MP-09-N-5945  and one broken lock were also recovered from the accused.  The  Motorcycle of Hero Honda make bearing registration No.MP-04-AN-7916  was also seized.  One black Rexene bag containing driving licence of Shri  S.M. Dholey in a polythene bag, report of bank loan of Navlakha Dena  Bank of Shri Dholey were recovered from accused Harish Kumar Singh. 7.      A Test Identification Parade was held in respect of both the accused  persons wherein they were got identified by Prosecution Witnesses, they  being Daman Singh (PW-5), Surendra Kumar (PW-4), Mahendra Chauhan  (PW-10) and Ashok Kumar  Dubey (PW-1).  According to the prosecution  Darshan Singh (PW-5) identified both the accused persons correctly.   Ashok Kumar Dubey (PW-1) also had identified both the accused persons  correctly.  Mahendra Chauhan (PW-10) and Surendra Kumar (PW-4) had  identified accused Harish correctly but they had not identified accused  Praveen correctly.  The identification proceedings about bag were also  conducted and the bag was got test identified.  Ultimately, on the basis of  the investigation, the charge-sheet came to be filed for committing  offences under Sections 395, 297, 450 IPC and Sections 25 and 27 of  Arms Act.  The charge-sheet also recorded that the other accused

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persons, namely, Anand, son of Mohanlal, Shashikant and two other  accused persons were absconding and the investigation was continuing  against them.  One Shashikant, son of Dadnath was also involved,  however, during the investigation it came to be reported that he had died in  a police encounter.  Charges were framed against the accused persons.   They denied their involvement in the commission of crime and claimed  false implication.  Defence of Harish was that on the day of incident he was  present in the Block Head Office of Faizabad and on that day he had  purchased a truck for which documents have been prepared and that the  police had falsely implicated him.  He also pointed out that the police had  shown his photographs to the witnesses in the Test Identification Parade.   The defence of accused Praveen was that since the police could not  apprehend the actual accused persons, he was being falsely implicated in  the case. 8.      As many as about 55 witnesses came to be examined, including the  eye-witnesses and the bank staff witnesses.  The Sessions Judge  convicted the two accused persons.  On the appeal having failed before  the High Court, the present appellant is before us by way of this appeal. 9.      Learned counsel appearing on behalf of the appellant very  vehemently contended before us that the identification parade in respect of  this accused was a farce as the photographs of both the accused persons,  namely, Praveen and Harish were already shown to the witnesses which  was clear from the evidence before the court.  It was further urged that if  the identification itself failed, then there would hardly be any evidence left  against the accused.  It is also urged that the discoveries of the so-called  stolen property was also farcical and insignificant.  Learned counsel also  urged that the Investigating Agency somehow wanted to do the face  saving on account of their failure to catch the real culprits inspite of the fact  that the dacoity had taken place in broad day-light.  Ultimately, even the  convictions under Sections 25 and 27 of the Arms Act came to be assailed  on the ground that such conviction could not have been ordered in law.   Lastly, by way of an alternative contention, learned counsel pointed out  that the sentence was too harsh as compared to the offence committed. 10.     As against this, the learned counsel appearing on behalf of the  prosecution supported the judgments of the courts below and pointed out  that both the courts below had, on the basis of the evidence led before  them, come to the conclusion that this appellant was identified.  It was  pointed out that the witnesses were the bank officers and they were with  the dacoits for substantial time.  The witnesses, therefore, had the  opportunity to watch the accused persons closely and as such the  identification of these accused persons in the court, at the instance of the  eye-witnesses, was also no less significant.  It is then pointed out that the  discoveries made included the bag of witness Shri S.M. Dholey (PW-6)  along with the documents therein and as such it was clear that the said  discovery established an unassailable nexus of the accused with the  crime.  It was further pointed out that even the vehicles which were used  for committing the crime were seized and identified by the witnesses.   Lastly it was contended that since both the courts below had concurrently  found the accused guilty on the basis of appreciation of evidence and  since no significant error was pointed out, this Court should not interfere in  its jurisdiction under Article 136 of the Constitution. 11.     It cannot be disputed that the bank was looted in the broad day-light  by the persons who were or could be termed to be dare-devils.  When we  see the evidence of Ashok Kumar Dubey (PW-1), Branch Manager of the  Dena Bank along with the evidence of Surendra Kumar (PW-4), Daman  Singh (PW-5), S.M. Dholey (PW-6) and Mahendra Chauhan (PW-10), all of  whom were the bank employees as also Deepak Kumar Kharte (PW7) and  Santosh (PW-11) who were the bank customers as also Ajay Kumar  Tandon (PW-21), Ashish Goyal (PW-22), Deepak Sompurkar (PW-23),  Suresh (P-W-24), Nathulal (PW-25), Sangeeta Silavat (PW-27), Govind  Singh Dodiya (PW-29), Shefali (PW-30), Prahlad Kumar Gothwal (PW-44),  the common thing in their evidence is that on that day about 5 persons  entered the bank and committed dacoity.  They were armed with weapons  and collected all the persons in the hall, handed out threats and calmly  collected keys from the bank staff and took away currency notes from the

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bank chest.  The High Court has recorded a finding that nothing significant  has come out in respect of this aspect of the dacoity.   12.     The evidence of Ashok Kumar Dubey (PW-1) would be the most  important as he had graphically described as to how the dacoity took place  and how he was taken out by the two persons.  The Trial as well as the  Appellate Courts have rightly relied upon this witness and accepted his  evidence.  This witness had further stated that it was almost within 10  minutes after the dacoits left the bank that the police reached there.   Learned counsel had commented that this witness, though had taken part  in the identification parade, did not in his substantive evidence, refer to that  fact and, therefore, his identification, in the court, for the first time,  remained without any corroboration.  There is no significant cross- examination of this witness at all as regards the evidence and more  particularly his identification of the accused in the court.  He had very  specifically identified the appellant herein.  Very significantly no question  has been put to this witness.  It is not suggested as if the accused had  covered their faces.  There is no challenge also to the story that the  dacoits had pointed revolver at him.  In the absence of any substantial  cross-examination, we do not think that the Trial Court and the High Court  were in error in accepting the evidence of this witness particularly about his  identification.  The witness had full opportunity in broad day-light to be with  the accused and the incident itself was so significant that it would  undoubtedly make a dent on his memory.  He was after-all an educated  bank officer holding a responsible position of a Branch Manager.  Since his  evidence about knowing the accused-appellant was not at all challenged,  the courts below were right in accepting the evidence. 13.     Surendra Kumar (PW-4), has corroborated the evidence of Ashok  Kumar Dubey (PW-1) and there is nothing contradictory in his evidence.   Surendra Kumar is also a bank employee working in the same branch.  He  has also supported the version that the dacoits having snatched the bag  from a lady customer as also the bag of S.M. Dholey (PW-6).  This witness  was called in the jail for identification and he claimed that he had correctly  identified the accused persons who were present in the court.  This  witness had also reiterated, in his cross-examination, about the language  which was being spoken by the dacoits.  He specifically denied that the  accused persons, who were present in the court, were shown to him  earlier.  His following statement was taken as an exception by the Defence  counsel: \023Similar photographs were shown to other persons which were  shown to me.\024

From this the learned counsel presumed that the photographs of the  appellant were shown to this witness.  We do not think such an inference  can be drawn from the above mentioned sentence.  This witness, in the  very next paragraph, had, however, clarified that those persons whom he  had identified were not the persons who were apprehended by the police.   He has specifically stated about the identification parade where cashier  Chauhan, C.S. Batham, Shri Ashok Dubey and other persons were called.   He, however, under the stress of cross-examination admitted that the  accused persons were shown to him in the police station.  Since this  witness had not identified the appellant Pravin, though the High Court  relied on him, we do not attach any importance to the evidence of this  witness.   14.     Daman Singh (PW-5) who was also the bank employee, graphically  described the whole dacoity.  He also claimed that he had correctly  identified the appellant and the other accused Harish.  Some insignificant  omissions have been brought out in his evidence which do not damage the  evidentiary value of his evidence at all.  He also reiterated in his cross- examination that he was not shown any photographs of the accused nor  was any accused shown to him in the Police Station.  As regards the  identification parade he was specifically cross-examined and he refuted all  the suggestions.  Learned counsel, however, relied on one sentence to the  effect that: \023Yeh Sahi hai ki jeep mein un vyaktiyo ke photo dikhaye gaye  the, jo pakde gaye the aur unki pehchan karni thi\024

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\023The English Translation of the above sentence is: It is correct  that in the jeep photographs of those persons were shown  who were apprehended and their identification was to be  conducted.\024

From this the learned counsel suggested that this witness was shown the  photographs and, therefore, his evidence would be of no consequence.   We cannot read this sentence in isolation.  Prior to this the witness had  stated in the following fashion: \023In the way in jeep policemen told us that we will have to  identify the persons those who were involved in the  commission of occurrence amongst the apprehended persons.   Policemen had taken the complete file of the case along with  him to the prison.  I had not seen that file.  Therefore, I cannot  tell as to whether it was containing the details of the  apprehended persons or not.\024

When we see the earlier part of the evidence, it is clear that this so-called  admission has been inadvertently given.  This is apart from the fact that  there is nothing to suggest that he was shown the photographs of the  accused appellant.  We, therefore, ignore this so-called admission as has  been done by Trial and Appellate Courts.  He has specifically pointed out  about his identification in the jail.  Very significantly this witness was  suggested that there was no identification parade held at all in the jail.   Even if we ignore the test identification parade, there is nothing suggested  to him in his cross-examination to challenge his identification in the court.   We are quite alive to the fact that identification, for the first time in the  court, is inconsequential.  However, we cannot forget the fact that in this  case all these witnesses were the bank employees who had undergone a  traumatic experience of a broad day-light dacoity. They were with the  dacoits for substantial time.  The dacoits had also not covered their faces.  When we see the admission closely regarding the photographs, there is  nothing to suggest that the photographs of Pravin (the present appellant)  was shown to this witness.  We, therefore, have to ignore the so-called  admission.  He also does not state as to how many photographs were  shown to him and whether he had identified those accused persons whose  photographs were shown to him.  It may be that some photographs may  have been shown regarding some arrested persons but that by itself does  not affect his evidence particularly when it is not put to him specifically that  he had seen the photographs of this appellant and his identification was on  the basis of those photographs.  The Trial Court as well as the High Court  have relied on this witness and we do not find anything wrong, more  particularly because he has stoutly denied the suggestions regarding the  accused persons being shown to him earlier when they were in the  custody. 15.     The other witness on whose evidence the reliance has been placed  by the Trial Court as well as the High Court is Shri S.M. Dholey (PW-6)  and Mahendra Chauhan (PW-10).  Shri Dholey (PW-6) reiterated about the  dacoity and claimed that a pistol was brandished on him by one of the  accused persons.  He thereafter gave a graphic description as to what  transpired. He then asserted that when the dacoits fell short of the bags to  carry the looted booty, they took his bag also.  He described his bag to be  black coloured bag made of parachute choth in which his driving licence,  one pyramid card, statement about Dena Bank Navlakha and documents  regarding the attachment from the Nazul Tehsildar Shri Rajnish  Srivastava\022s court.  It also had the insurance policy of his vehicle, one and  a half dozens of pens, etc.  His evidence was of no consequence as he  has specifically stated that the present appellant was not amongst the five  dacoits.  However, one of them resembled accused Harish.  In his cross- examination by the prosecution this witness, however, identified his bag.   He also admitted that he had identified his bag when it was put for test  identification.  He also reiterated that he was using that bag for the last 7 to  8 years.  We would return to this evidence a little later. 16.     Last of the identifying witness is Mahedra Chauhan (PW-10).  He  first asserted that he knows the two accused persons present in the court.  

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He thereafter gave a graphic description of the dacoity.  He also stated  about the bag being brought from a customer and the bag of the staff  having been taken by the dacoits and the said bags being filled with the  currency notes.  He also stated about Daman Singh (PW-5) giving the  keys.  Lastly he asserted that in the test identification parade about 10  persons were present and out of whom he identified Harish and Pravin.   He, however, admitted that he had wrongly identified Pravin as per Exhibit  P-22.  We would, therefore, chose to ignore his evidence since he had  wrongly identified the appellant in the identification parade. 17.     The other evidence is that of Shiv Sagar (PW-14).  He was the  witness on the arrest of the appellant.  He reiterates that in his presence  Pravin spoke about the jeep, the currency notes and the slips attached to  the currency bundles.  The witness asserts that the accused had agreed to  show the jeep which was behind the Chappan Dukan complex.  He then  reiterates that the police seized the jeep, the bundle of notes and the slips  on the bundles of notes.  He proved his signatures on Memorandum  (Exhibit P-23) and the subsequent panchanama (Exhibit P-24).  He  asserted that the police had seized Rs.40,000/- at the instance of Pravin  Sharma but from where, he did not know.  He also spoke about the seizure  of .12 bore pistol and a black bag.  He, accepted his signatures on Exhibit  P-21, P-17, P-18 and P-19.  The Public Prosecutor was permitted to put  the questions in the nature of cross-examination wherein he had accepted  that Pravin Sharma had spoken about the Ambassador Car MP-9W-552.   In the cross-examination by the accused, he rejected the suggestion that  the Panchanama were already written on which he was asked to put his  signatures.   18.     The other relevant witnesses is Raj Narain Tandon (PW-21) who  deposed about the dacoity but did not identify the appellant.  Similar is the  case of Ashish Goyal (PW-22).  He had gone to the bank along with his  friend on that day.  However, he also refused to identify the accused.  The  next witness is Deepak Sompurkar (PW-23) who was a clerk in the bank.   His evidence is of no consequence as he has not identified the appellant.   Similar is the story of Suresh, son of Motilal (PW-24) and Nathulal, son of  Kaluram (PW-25).  Arvind Kumar (PW-26) has also refused to identify the  accused.  Again the evidence of Sangeeta Silawat (PW-27) is also of no  use since she has also not identified the accused.  She has, however,  reiterated that the dacoits took the bags from the customers and the staff.   The evidence of Govind Singh Dodiya (PW-29) is also of no consequence  as he has refused to identify the accused even in the court.  Shefali (PW- 30) is a child witness.  At that time her age was 13 years.  Though she has  spoken about the dacoity and the other details regarding the dacoity but  nothing against the appellant.  Manish Chaturvedi (PW-33) who was the  landlord of appellant Pravin was also examined.  The other witnesses like  Ajay Lashkari (PW-34), Ramu Yadav (PW-35), Deepak Jain (PW-36), Alok  Namdev (PW-37), Atul Karamsingh Parmar (PW-38) would be of no  consequence since all these witnesses have not identified the appellant at  all.  The only other witness is Sumit Sankala (PW-45) who is an auto  dealer and who spoke about the purchase of a vehicle by two persons.  He  reiterated that the purchase was made by one Pravin Sharma and one  other person.  He reiterated that Pravin Sharma purchased the vehicle MP- 09-W-5521 whose registered owner was Usmanbhai.  The other witnesses  like Gurdial Singh (PW-46), Jai Prakash Yadav (PW-47) are hostile  witnesses.  Even the evidence of Narmada Bai (PW-51) is of no use to the  prosecution.   19.     The most significant evidence is that of Baldev Singh Thakur (PW- 52) who was the Investigating Officer.  He deposed about the arrest of  accused Pravin on 26.9.2003.  He then contended that in his presence  Pravin Sharma had disclosed that out of Rs.14 lakhs, Rs.40,000/- and one  .12 bore Katta was hidden by him in an iron box.  He also disclosed the  place where the concerned jeep was parked.  He thus proved Exhibit P-23.   Accordingly he reiterated that he had taken Pravin Kumar Sharma to his  residence at 32/3, Pardesipura where he recovered articles 1 to 18.  He  also deposed about the seizure of a jeep.  He also deposed about Exhibit  P-20 which was a temporary residence of one accused Annu @ Anand.   He claimed that from that residence which consisted of only one room, he

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seized 38 slips and the other articles like rubber rings, plastic strings, etc.   He was cross-examined in detail on the discoveries and more particularly  on Exhibits P-23 and P-24 and a suggestion was given to him specifically  that Pravin, the appellant had not discovered anything.  He admitted in his  cross-examination that in Exhibit P-23 memorandum it is not written as to  from which place accused Pravin got the pistol and the amount.  That  would be of no consequence since there is no cross-examination on the  factum of recovery of gun. 20.     The other officer who investigated the case is Irfan (PW-53) who had  examined the said pistol.  Lastly the prosecution examined Hukum Singh  Yadav (PW-54).  His evidence is not of much significance in so far as the  present accused is concerned.  The last witness is Nayab Tehsildar Chand  Mohd. Khan (PW-55) who held the test identification parade.  He reiterated  that Surendra Kumar (PW-4) had wrongly identified the accused while  even Mahendra Chauhan (PW-10) had not correctly identified the accused.   He, however, reiterated that Daman Singh (PW-5) had correctly identified  both the accused.  He also reiterated that Ashok Kumar Dubey (PW-1) had  correctly identified the accused.  In his cross examination it came out that  the other persons who were asked to stand for the identification along with  accused persons, nobody was 27 years old.  He also admitted that he had  not mentioned in the Panchanama that the persons who stood for  identification had to put on the blankets, though he asserted that the said  persons had covered their whole body excepting their faces with the  blankets.  It is on the basis of the above said evidence that the accused- appellant came to be convicted. 21.     We have deliberately taken stock of the whole evidence particularly  because it was very vehemently asserted by the learned counsel for the  Defence that there was no proper appreciation of evidence either by the  Trial Court or by the High Court.  We do not think that such a sweeping  statement can be made about the judgments of the High Court and the  Trial Court.  We have considered the judgments very carefully and find that  the High Court as well as the Trial Court have gone into the intricacies of  the evidence.  We are, therefore, not impressed at all by this contention on  the part of the Defence. 22.     The main stay of the Defence was that the investigation was not fair  in this case inasmuch as the police had shown the accused persons to the  identifying witnesses.  We have already given our reasons as to why we  would be prepared to accept the evidence of Ashok Kumar Dubey (PW-1).   It is true that in his substantive evidence he did not speak about his  identifying the accused appellant in the identification parade but we cannot  forget the fact that there is a clear cut evidence of the Magistrate who  conducted the Parade confirming such identification.  There is practically  no cross-examination of this witness.  We are particularly impressed by the  recovery of Rs.40,000/- from the possession of the accused-appellant  which recovery has been accepted by the Trial and the Appellate Courts.   The recovery of the slips as also of the gun which was brandished against  the witness is also no less significant.  There is no explanation given by the  accused as to how a huge sum of Rs.40,000/- and the Dena Bank slips  and the other bank documents could be recovered from him.   23.     It was feebly argued before us that there was delay in holding the  identification parade.  In the peculiar facts and circumstances of this case  we do not think this delay was of any significance.  We say this as the  other accused persons are still at large and, therefore, test identification  parade could not have been conducted in respect of only some of the  accused.  Again the question of delay was never raised by way of cross- examination and no explanation was called for from the investigating  officer.  Had the question been asked, the witness would have answered  the same.  Similar view has been taken by this Court in Pramod Mandal v.  State of Bihar [(2004) 13 SCC 150] where the Court had found that there  is no fixed rule as regards the period within which the test identification  parade must be held.  In this case this Court observed that: \023If there is any delay, unless the reasons for the delay are put  by way of questions in the cross-examination to the  investigating officer, the so-called delay was of no  consequences.\024

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This Court in Paragraphs 23 specifically held that: \023Where the witnesses have ample opportunity to watch the  dacoits and their physical features, etc., their evidence of the  identification is strengthened.\024

Therefore, if there was any delay in holding the identification parade, it is  insignificant according to us in the peculiar facts of the present case.   24.     In Bharat Singh v. State of U.P. [(1973) 3 SCC 896] a Three Judge  Bench of this Court had specifically observed in para 6: \023Although it is desirable to hold identification parade at the  earliest opportunity, where there is a delay of three months in  holding the identification parade, it is a duty of the accused to  cross-examine the police officer who conducted the  investigation and the Magistrate who held the parade if the  accused wishes to take advantage out of such undue delay.\024

We respectfully follow the above decision. 25.     In State of Rajhasthan v. Sukhpal Singh & Ors. [(1983) 1 SCC  393] this court ignored the wrong identification particularly holding that: \023Since the part of the loot as well as the weapons used in the  dacoity were recovered and since the testimony of the bank  employees were found reliable, they being independent  witnesses, some irregularities in the identification parade were  liable to be ignored.

This was also a case of dacoity on the bank and the bank witnesses were  disbelieved.  This Court observed: \023Witnesses who had no axe to grind and had no personal  motive to implicate the accused on a false charge, have been  disbelieved on feeble considerations.  And the recovery of  incriminating articles has been by-passed and disbelieved by  characterizing it as unnatural and incredible.  Different crimes  have different patterns and the offenders improvise their  strategy according to the exigencies of the occasion. \023

This Court also observed similarly about the seizure of Ambassador Car,  the chits found with the bundles of currency bearing the name of the bank  and the box containing certain documents belonging to the bank.  Very  significantly the situation is identical as in the present case where also the  defence had taken the theory of planting after the arrest of the dacoits as  in the present case.  We wonder as to how and wherefrom the police  would bring a huge sum of Rs.40,000/- for being planted.  It is for this  reason that we have chosen to accept the evidence of Ashok Kumar  Dubay (PW-1), Surendra Kumar (PW-4) and Daman Singh (PW-5). 26.     We cannot again forget that the stolen property was recovered from  the possession of the appellant.  We would, therefore, be justified in using  the presumption raised by Section 114 of the Evidence Act as was done in  the case of Ronny v. State of Maharashtra [(1998) 3 SCC 625]. 27.     There is also supporting and corroborating evidence of the recovery  of the other materials like the bag of S.M. Dholey  (PW-6) which was  recovered during the investigation.  This discovery of the bag is also  extremely significant because there was no reason for this bag which  contained the private documents of Shri Dholey to be recovered from the  accused.  That also lends credence to the fairness of the investigation by  the police.  It will not be possible for us, in our jurisdiction under Article 136  of the Constitution, to re-appreciate the evidence and we will have to only  see as to whether Trial Curt and the Appellate Court  were correct in  reaching the conclusions that they have recorded.  We again reiterate that  the identification in the peculiar facts of this case by Ashok Kumar Dubey  and other witnesses would be acceptable inspite of the so-called defects  shown by the Defence in holding the identification. Considering the overall  circumstances in the peculiar facts and circumstances of this case we hold  the appellant guilty of committing the offence of dacoity.   28.     There is also no explanation about the gun as well as the bullets

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which were examined by Irfan (PW-53).  The gun was obviously an  unlicenced pistol and, in our opinion, it was obviously used in  contravention of Section 5 of the Arms Act.  The conviction of the accused- appellant, under Sections 25 and 27 of the Arms Act was also correctly  recorded by the courts below. 29.     In the above circumstances we do not find any merits in this appeal  and the same is accordingly dismissed.