1 jpc/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 380 OF 2006 Lokesh Nagesh Shetty .. Appellant Versus 1. The state of Maharashtra (At the instance of Kukrud Police Station in C.R.No.18/2003) 2. General Manager, Rajaram Bapu Cooperative Bank Ltd. Peth, Sangli. .. Respondents Mrs. Pooja Bhojane i/b Shri Nitin H. Shejpal, for the Appellant Shri J. P. Kharge, APP for the State CORAM: MRS. MRIDULA BHATKAR, J. Reserved for judgment on :7th October, 2009 Judgement pronouncedon: 12th October, 2009 J U D G E M E N T 1. Heard learned counsel for the parties. 2. By consent of the parties, taken up for final hearing. 3. This appeal is filed against the judgment and order dated 8th February, 2006 passed Learned Ad hoc Additional Sessions Judge, Islampur, convicting the Appellant accused for the offences punishable under Section 395 read with Section 120-B of the 2 Indian Penal Code and sentenced to suffer rigorous imprisonment (RI) for ten years and to pay fine of Rs.50,00/-, in default to suffer RI for two years for both counts. The Accused are also convicted for the offence punishable under Sections 342 and 506 of the IPC and sentenced to suffer RI for one year and fine of Rs.3000/-, in default to suffer RI for six months for both the counts and under Sections 201 and 412 of the Indian Penal Code, sentenced to suffer RI for two years and to pay fine of Rs.3000/-, in default to suffer RI for six months for both counts together. 4. An incident of dacoity had taken place at about 2.15 pm. of 8.5.2003 in Rajaram Bapu Cooperative Bank Ltd. Peth brach, Kokrud Tq. Sirala Dist. Sangli. The Appellant accused alongwith other 9 accused had looted the Bank by giving threats of killing and terrorising with the use of deadly weapon and robbed 7.320 kg. worth Rs.4 lakhs and cash of Rs.1.30 lacs. 5. The Learned Counsel appearing for the Appellant accused submitted that the Learned Sessions Judge has erred in law and on facts in holding the accused guilty of various offences on the basis of inadequate evidence. The prosecution has 3 tendered evidence of identification parade and about the recovery of two gold bangles form the accused. The Learned Counsel, has submitted that the incident has taken place on 8th May, 2003 and the the accused was arrested on 19.6.2003 and thereafter, the identification parade was conducted on 19.8.2003 i.e. two months after the arrest of the accused. The Learned Counsel has further submitted that the identification parade was not conducted as per the rules framed under the High Court Criminal Manual and there was inordinate delay in holding Test identification Parade. It is submitted that during this period of two months they might have shown to the prosecution witnesses and if so, then the identification parade losses its value. She has further submitted that the recovery of the gold articles was from the Jeweller i.e. PW-19 who has purchased those gold bangles from Ravi Shetty and Vishwanath Poojari and those two persons have told the jeweller in the presence of police that they got those two bangles from accused Appellant No.3. Learned counsel has submitted that besides this evidence, there is nothing on record against the accused and hence, he deserves to be acquitted. 6. Learned prosecutor has opposed this appeal and 4 submitted that the judgment of the session Court has to be upheld. 7. The incident of decoity has taken place in broad day light in the Bank, so all the witnesses had clear and good opportunity to see the face of the Appellant accused. Moreover, the witnesses have stated that the accused had come in the Bank first at one p.m. to enquire, saying that he waned to open a joint account alongwith co-accused and thereafter again at around 2.30 he came for the purpose of decoity. 8. On the point of delay in conducting test identification parade, the learned counsel for the appellant accused has relied on the following rulings: i. Budhesen and another Vs. State of U.P., reported in 1970 Supreme Court Cases (Cr.) 343, ii. Sanjay Jadhav Vs. The state of Maharashtra, reported in 1997 ALL MR (Cri.)197 iii. Sasib Vs.State of Bihar, reported in AIR 1972 Supreme Court 283 I have gone through these rulings. The delay in conducting test identification parade is fetal to the prosecution. In the present case there is a delay of two months after the arrest of the applicant 5 accused. However, the Learned Prosecutor has submitted that it was explained in the evidence that the applicant accused himself was admitted in the Hospital on some occasions during this period of two months. Each case has different facts and evidence is to be weighed accordingly. Hence, I am of the view that these rulings are of no use to the defence. 9. Evidence of identification, despite of delay is reliable and it was rightly believed as truthful. The incident of dacoity has taken place in the day light in the Bank. On the point of identification, the prospection has tendered evidence of three witnesses i.e. W-12 Bank Manager, PW-17 and PW-18- bank employees and PW-20 Special Executive Officer (SEO). It is also to be noted that the face of the Appellant accused was not masked at the time of the commission of the offence. All the three witnesses on the point of identification have corroborated each other. Moreover, twice they had an opportunity to see the face of the appellant accused. Mere submissions that the proper procedure was not followed by the SEO and there are lacunae in the identification parade cannot be accepted unless certain material lacuna is pointed out. Thus, the prosecution has adduced the concrete unshakable evidence against the appellant accused. 10. Learned sessions judge has considered all these points 6 in the judgment. Recovery of gold bangles is based on hearsay evidence and is not admissible. Considering the nature of the evidence and its quality, though I am not inclined to set aside the order of conviction for the offences charged, on the point of quantum of sentences, the appeal is partly allowed. Hence the following order: i. Order of conviction is confirmed. ii. Period of sentence of rigorous imprisonment for 10 years for the offence punishable under Section 395 read with Section 34 of the Indian Penal Code is reduced from 10 years to 7 years and fine amount of Rs.50,000/- is reduced to Rs. 25000/-, in default six months rigorous imprisonment for both the counts. iii. Sentences awarded for the rest of the offences are maintained. iv. Appeal is disposed of accordingly. v. The application for bail pending in this appeal does not survive, hence disposed of. (MRIDULA BHATKAR, J.) jpc/-