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1. The Appellants in the present appeals lay challenge to judgment dated 15th May, 2000 convicting them for offences punishable under Section 395/34 IPC and order on sentence dated 24th May, 2000 whereby they were directed to undergo rigorous imprisonment for 8 years and fine of Rs. 5000/- each and in default of payment of fine to further undergo simple imprisonment for six months.

2. Briefly the prosecution case is that on 21st October, 1995 one Varinder Lal Khanna along with his wife Sanjogita Khanna was coming in his Maruti Van No. DDA 2005 from Railways club to their house and at about 1.30 AM when they reached at Africa Avenue Road near Railways Bridge, Chanakya Puri, New Delhi, three-four people stopped their Van. They stated that one of their colleagues has met with an accident and asked for a lift. When Varinder Lal Khanna and Smt. Sanjogita Khanna told them that they are just going nearby, all of them surrounded them, opened the door of the maruti car and thereafter snatched one gold chain, two gold kadas (Bangles), one pair gold ear ring, one ring, Rs.5000/- in cash, a purse containing Rs. 800/- and ran away from the spot. Out of the accused persons, one of them was having a knife. On the basis of this statement of Varinder Lal Khanna, FIR No. 544/1995 under Section 392/34 IPC was registered at PS Sarojini Nagar. During investigation it was found that 6-7 persons were involved in the incident, and thus Section 395 IPC was added. S.I. Ranbir Singh investigated the case and searched for the accused persons. On 3 rd November, 1995 he received secret information that 3-4 persons, who used to indulge in the dacoity, were sitting in Sanjay Park. He reached Sanjay Park and apprehended them. On enquiry, their names were revealed as Vajinder, Siya Ram, Raju @ Mamraj and Deepak Rawat. During the course of investigation, the aforesaid accused persons made disclosure statements about this offence and that Wilson Danial, Sanjay @ Tilakdhari and Pawan @ Rahul were also involved in the said dacoity case. Thereafter they reached Netaji Nagar in search of other accused persons where mother of accused Wilson Danial namely Smt. Bimla met them. On enquiry, Smt. Bimla Devi told that on 21st October, 1995 six-seven persons on the aforesaid date came to her house at Mayur Vihar, and they gave her a gold chain including some articles. On further investigation Smt. Bimla made disclosure that she had given gold chain at the shop of Mehra Sons Jewellers, South Extension II, New Delhi for repairing. Thereafter, the said gold chain was got recovered and some other articles were also taken into possession from the house of accused Bimla. All the four accused persons refused to join the TIP. Thereafter on 13.12.95, other accused Pawan @ Rahul was arrested in FIR No. 688/95. During the investigation he made disclosure statement with regard to his involvement in the present case. Accused Pawan also refused to join the TIP. On 3rd January, 1995 accused Sanjay @ Tilakdhari was also arrested on secret information who too refused to join the TIP. Accused Wilson Danial was also arrested and he also refused to join the TIP. During interrogation, disclosure statements were recorded and recovery of the articles were got effected at the instance of the accused persons. After completion of the investigation, charge-sheet under Section 395/34 and 412 IPC was filed in the Court. After recording the statements of prosecution witnesses and statement of accused persons under Section 313 Cr.P.C., learned Trial Court convicted the accused persons as mentioned above. The Petitioners and accused Bimla filed appeals against the conviction and sentenced awarded. However, the appeal of Bimla being Crl.A.337/2000 stood abated as she expired during the pendency of the appeal.

3. Learned counsel for the Appellants contends that the impugned judgment is based upon conjectures and surmises. Learned Trial Court has overlooked the factual matrix of the case and ignored the vital principles of law. Learned Trial Court has failed to appreciate the fact that there are material improvements in the testimony of PW1 & PW2. Furthermore there are contradictions in the testimony of prosecution witnesses. The recoveries of alleged stolen articles from Bimla cannot be relied upon. There is no independent witness to the said recovery also. There is no evidence placed on record to show that the seal after use was deposited in the Malkhana. Thus the recovery is doubtful and cannot be used against the Appellants. Learned counsels further state that there are contradictions in regard to the identification of accused persons. PW-1 has stated that he appeared in Court on two dates for TIP of case property and the second time was after the charge-sheet was filed. However, in his cross-examination he has stated that he was never called in Court to identify any of the accused persons. In his examination-in-chief he has stated that he along with IO was present before the Magistrate and had identified accused Deepak and in month of January, 1996 he identified the remaining 3 accused persons. The statements of accused persons recorded under Section 313 Cr.P.C. are perfunctory in nature as almost a common questionnaire had been prepared for all the Appellants and no specific incriminating questions were put to each accused. In absence of any clear and cogent evidence the impugned judgment of conviction and order on sentence are liable to be set aside.

5. I have heard learned counsel for parties and perused the record.

6. PW-1 Varinder Lal Khanna has deposed that on 21 st October, 1995 at about 1.30 AM he was coming back from Railway club along with his wife Sanjogita Khanna in Maruti Van No. DDA 2005. When he crossed the Chanakya Cinema and just after the under bridge 3/4 people came in front of the van. He stopped the van. One of those persons told him that one of them, who was sitting on the side patri, had got hurt and requested him to take the said person to the hospital. PW1 stated that they were going nearby only and they should approach another vehicle. In the mean time the said persons opened the door of the van and put a knife on his neck. In the meantime, some of them snatched the chain of his wife from the other side of the door. In fact they were seven in number, some of them on his side, 1- 2 standing in front of van, one towards the left side door and 1-2 standing on left side pavement. They also took the purse of his wife which was containing cash about Rs.5000/-. They also removed gold karas from the hands of his wife along with one gold ring and ear rings. They also took the spectacle case from front pocket of his shirt. PW1 requested them to return his driving license at least but they refused and asked him to go away. PW1 drove to police station Sarojini Nagar, where he reported the case. He identified the accused persons present in the Court as the same persons who had removed their belongings on that night. PW1 pointed out at Deepak Rawat as the person who put knife on his neck. He further stated that he could not scribe specific roles to the other accused persons as it was night but all of them were present there. After about one week or ten days the Investigating Officer told him that they had arrested some persons and asked me to identify a gold chain. He along with his wife went to police station and there they identified the gold chain which belonged to his wife. After few days the Investigating Officer told him that they have to identify the accused persons. Accordingly he along with the Investigating Officer went to Central Jail. The exact date he did not remember. As the accused refused to participate in TIP, therefore, he was not given any opportunity to identify them on that day. After a few days he was told by Investigating Officer that they had got recovered Karas and asked them to identify said jewellery. Accordingly, he along with his wife went to police station and identified those karas which were removed on the date of incident and which belonged to his wife. Again after a few days he was told by the Investigating Officer that they had apprehended two more accused so he was asked to go to Tihar Jail and identify them. PW1 alone went to Tihar Jail along with Investigating Officer. It was about the end of November 1995. As on that day also accused refused to participate in the TIP therefore he could not get any opportunity to identify them. Thereafter after a few days when he was present with the Investigating officer outside the Court of the Magistrate whose particulars he did not remember, he identified four persons out of which one was Deepak Rawat by telling the Investigating Officer that they were the same persons who took part on the date of incident. Thereafter in the month of January, 1996 he identified the remaining three accused outside the court room of the Magistrate at Patiala house Court. He did not remember the names of those persons and their names were told to him by the Investigating Officer. On his application, the jewellery was returned on superdari, after the same was duly identified by his wife in the identification parade held by the Metropolitan Magistrate. This witness further stated that his purse which was containing about Rs. 800/- was also taken forcibly. The said purse was also containing the driving license.

12. Learned counsels for the Appellants have strenuously argued that the TIP in the present case has no value as the accused persons were already shown to the witnesses and their photographs were taken. Accused Wilson Daniel was produced in the Court in unmuffled face thus his TIP is also value less. The refusal of the Appellants to the take part in the TIP is justified. It may be noted that accused Vajinder, Siya Ram, Raju and Deepak were arrested on 3rd November, 1995 and were produced before PW8 Shri V. K. Bansal, Metropolitan Magistrate for conducting TIP of the accused persons. Learned Metropolitan Magistrate in his testimony has deposed that on 10th November, 1995 accused Vajinder, Siya Ram, Raju and Deepak were produced before him but they refused to take part in the TIP as their photographs had been shown to the witnesses. On 16 th December, 1995 accused Pawan Kumar was produced before Shri M.K. Gupta, Metropolitan Magistrate when he refused to participate in the TIP as his photographs were shown to the witnesses. Similarly accused Wilson Daniel and Sanjay @ Tilak Dhari also refused to participate in the TIP proceedings. There is only a bald statement made by the accused persons that their photographs were taken and no suggestion in this regard has been put to any witness nor any witness has been cross-examined on this aspect. PW10 Constable Jalbir Singh has stated that accused Wilson Daniel had surrendered before the Court and from there he was formally arrested. Thereafter SI Ranbir Singh had moved an application for conducting TIP of the accused in which the accused refused to participate. No suggestion has been put to this witness also in regard to the fact that before refusal of TIP, PW1 and PW2 were shown the accused persons. Thus the contention of learned counsel that the TIP in the present case is valueless has no merit.