A. H. JOSHI, J.

( 1 ) APPEAL No. 468 of 2004 is by accused No. 3 Shailendra who was accused No. 3 and Criminal Appeal No. 469 is by Vinod who was accused No. 1 in Sessions Trial No. 135 of 2003. These accused were tried along with 2 other accused lokesh Pardhi and Raju Bahekar. The trial resulted in acquittal of other accused and the appellants were convicted for the offence punishable under section 459 r/w/ section 34 of the Indian Penal Code and sentenced to suffer R. I. for 5 years and fine of Rs. 5000/ - and default sentence for S. I. for one month.

( 2 ) THE judgment of conviction and sentence is challenged on the grounds namely: (1) That the identification during the identification parade was suspicious and cannot be used to corroborate the identification of the accused before the Court; (2) The identification of accused by witnesses even before the Court cannot be trusted being corroborated with unreliable identification parade; (3) The identification of parade was vitiated because there was publicity of photographs of the accused persons before the identification parade was conducted; (4) Features of the accused or any other description thereby fixing the identity of the accused was not given by the witness suresh Borole; (5) That the contradictions or variations in the statement of P. W. 4 Suresh Borole about the place where he was sleeping when the decoits entered his house creates suspicion about truthfulness of his testimony; (6) The investigation agency was not fair; (7) There was other accused persons who were arrested, all were in jail when identification parade was conducted. However, the Investigating Officer did not secure their presence during identification parade though requisitioned, which results in grave doubt as to why the group of accused alone was excluded from identification parade. (8) The other accused who were not brought before the Magistrate for identification parade were afterwards discharged by the police by applying to the Magistrate for discharge. While other two unidentified accused were tried along with appellants.

( 3 ) THE case is being argued with special emphasis on the question of identification though as much as 144 grounds in the appeal and 20 more grounds have been raised in other appeal.

( 4 ) IN order to shatter the testimony of p. W. 4 and the Judgment pressing the conviction based on the said identification the learned Advocate for the appellant placed reliance on large list of precedents namely:1. A. I. R. 1981 S. C. 1388, (Lakshman Prasad v. State of Bihar), 2. A. I. R. 1987 S. C. 1222, (Subhash and Shiv shankar v. State of U. P.), 3. S. C. Acq. Crj. 437, (Chandran alias surendran and another v. State of Kerala), 4. A. I. R. 1991 S. C. 1468, (Bollauaram Pedda narsi Reddy and others v. State of A. P.), 5. A. I. R. 1992 S. C. 1854, (State of U. P. v. Hardeo and others), 6. A. I. R, 1992 S. C. 1438, (Karam Singh Alias karmu v. State by the Inspector of CBCID, madras), 7. A. I. R. 1993 S. C. 931, (Tahir Mohammad, kamad Girendra Singh and another, Badri singh, and others v. State of M. P.), 8. A. I. R. 1997 S. C. 332, (Jaspal Singh alias pali v. State of Punjab with Darshan Singh and others v. State of Punjab), 9. A. I. R. 1998 S. C. 1732, (Shambhu Dayal v. Subhash Chandra and others), 10. 1998 (5) Bom. C. R. (S. C.)920 : A. I. R. 1998 s. C. 3031, (Ravindra alias Ravi Bansigohar v. State of Maharashtra and others), 11. S. C. Acq. Crj. 684, (Jaipal and anothers etc. v. State of U. P. ,chandigarh)", 12. A. I. R. 1999 S. C. 1086, (Vijayan alias Rajan v. State of Kerala), 13. 2002 All. M. R. (Cri.) 398, (Mohemmad Yusuf mohammed Sharif Rahim v. State of Maharashtra), 14. 2002 All. M. R. (Cri.) 2548 (S. C.) (Dana Yadav alias Dahu and others v. State of Bihar), 15. 2003 All. M. R. (Cri.) 1606 (S. C.), (Nirmalpasi anotherv. State of Bihar), 16. 1982 Cri. L. J. 500, (Sidha Dehury and others v. State), 17. 1999 Cri. L. J. 4375, (Manepallianjaneyulu v. State of A. P.), 18. 2000 Cri.