1. These appeals, being disposed of by common judgment, are arising out of the judgment and order dated 15/5/2008, passed by the learned Additional Sessions Judge, Chandrapur in Sessions Trial No. 18/2006. The appellants of Criminal Appeal No. 312/08 were accused Nos. 1, 2 and 3; the appellant of Criminal Appeal No. 242/08 was accused No. 4; whereas the appellant of Criminal Appeal No. 795/08 was accused No.5. The appellants shall hereinafter be referred to as the accused persons as per their numbers in the Sessions Trial.
2. Accused Nos. 1 to 5 were tried for offence punishable under Section 395 read with Section 397 of the Indian Penal Code (for short, I.P.C.) and Section 3 read with Section 25 of the Arms Act, 1959. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 3/18
3. Vide the impugned judgment and order, accused Nos. 1 to 5 are acquitted of the offence under Section 3 read with Section 25 of the Arms Act. They are held guilty of the offence punishable under Section 395 read with Section 397 of I.P.C. and convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.2,000/- each in default to undergo rigorous imprisonment for further period of one year.
4. Case of the prosecution, in short, is as follows :-
(i) Mr. Shridharan Nair was working as Deputy Executive Engineer with Maharashtra State Electricity Transmission Company and was posted at Ballarshah whereas Mr. Shamrao Balki was also working in the same department as Assistant Engineer and posted at Mul.
(ii) On 29/7/2005, Mr. Nair received the sum of Rs.6,64,190/- from the Division office, Ballarshah towards payment of salary to staff members. Out of the above amount, he handed over Rs.1,24,410/- to one Mr. Shukla, the Assistant Engineer of Sub-station, Gadchiroli and also distributed Rs.11,400/- towards the payment of salary of two employees of his office.
(iii) Mr. Nair handed over an amount of Rs.1,04,630/- to Mr. Balki for distributing the salary of employees of the office at Mul and kept Rs.4,31.350/- in a VIP suitcase of brown colour. Mr. Balki kept the amount given to him by Mr. Nair in a bag which was with him.
(iv) Thereafter Mr. Nair, Mr. Balki, the driver of Mr. Nair by name Bhujade, the helper to Mr. Nair by name Shende, Mr. Askar and Smt. Bharti sat in the jeep bearing No. MZV-4500 in order to go to Chandrapur. The suitcase HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 4/18 containing the amount along with two other brief cases which also contained money, were kept in the rear portion of the jeep which was driven by Mr. Balki. Near Prasanna Petrol Pump, Smt. Bharti and Mr. Askar got down from the jeep and the jeep proceeded further.
(v) When the jeep was passing through bypass and had reached near railway over-bridge, at about 5.10 p.m., a Tata Sumo jeep overtook the jeep No. MZV-4500 and hence the said jeep had to stop.
(vi) About 6-7 persons were in that Tata Sumo, out of which two armed with country made gun and knife alighted and one of them who had the gun went near Mr. Balki and the other with knife went near Mr. Nair. Weapons were pointed out to both of them. Thereafter, two more persons from the Tata Sumo got down, went to the rear side of the jeep No. MZV-4500, collected the suitcase and brief cases, put them in Tata Sumo and all of them went away towards Chandrapur.
(vii) Mr. Nair and Mr. Balki came with the jeep to Ramnagar police station. They had noted the registration number of the Tata Sumo to be MH-15/R-4680. Mr. Nair lodged the report.
(viii) Crime was registered. The Tata Sumo along with driver Mr. Mangal Turankar was nabbed. An amount of Rs.6,000/- was found in that Tata Sumo, which was attached. Mr. Mangal pointed out the spot in jungle where the suitcase was partly burnt and from that spot, the labels showing the name of the bank and partly burnt suitcase was attached.
(ix) Accused No.5 is history sheeter. When his photograph was HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 5/18 shown to Mangal, he identified accused No.5 as one of the culprits. The cellphone of accused No.5 was traced and from that clue, accused Nos. 1 and 3 were arrested on 17/8/2005 whereas accused Nos. 2 and 4 were arrested on 19/8/2005.
(x) Cash of Rs.22,000/- on one occasion and cash of Rs.22,325/- on subsequent occasion was recovered at the instance of accused No.1. A Television set was also seized from his house. The country made gun and Rs.43,300/- were recovered at the instance of accused No.2. The cash of Rs.35,000/- was recovered at the instance of accused No.3. The cash of Rs.54,000/- was recovered at the instance of accused No.4. Mr. Mangal Turankar was released under Section 169 of the Code of Criminal Procedure. The Test Identification Parade of accused Nos. 1 to 4 was conducted, in which they were identified by the witnesses.
(xi) Accused No.5 was arrested on 31/12/2005 and the suitcase containing rubber stamps of the office of Mr. Nair, identity card, etc. were recovered at his instance. Test Identification Parade of accused No.5 was held and he was also identified by the witnesses.
(xii) It was revealed that two more persons namely: Mr. Mahesh Golapalli @ Gurle and Sanu Badwal had also taken part in the dacoity. They could not be traced. (xiii) Charge-sheet came to be filed against accused Nos. 1 to 5. The two persons who could not be nabbed were shown as absconders.
5. The prosecution examined altogether 18 witnesses. They may be HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 6/18 categorized as under:-
(A) EYE WITNESSES :-
(i) P.W.-2 Mr. Shridharan Nair, who lodged report. (ii) P.W.-3 Shamrao Balki.
(iii) P.W.-11 Mangal Turankar.
(B) PANCH WITNESSES :-
(i) P.W.-1 Bhaskar Sahare, for spot panchanama (Exh. 37); spot panchanama (Exh.40); panchanama of seizure of Tata Sumo jeep and cash (Exh.41); and disclosure statement and recovery panchanama in respect of Rs.54,000/- at the instance of accused No.4 (Exhts. 42 and 43).
(ii) P.W.-4 Ajit Vishwas for disclosure statement of accused No.1 and panchanama of recovery of Rs.22,000/- at his instance (Exhs. 66 and 67).
(iii) P.W.-5 Rajkumar Meshram, second panch witness for exhibits 66 and 67.
(iv) P.W.-7 Laxman Kalar, for recovery of suitcase containing rubber stamps at the instance of accused No.5; and for recovery of country made gun, some cash and clothes at the instance of accused No.2. (v) P.W.-18, Sanjay Ghate, for recovery of cash and country made gun at the instance of accused Nos. 1 and 3.
(C) WITNESSES FOR PROVING NEXUS :-
(i) P.W.-6 Sanjiv Gothe, with whom absconding accused Sonu Badwal had deposited Rs.25,000/-.
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 7/18 (ii) P.W.-8 Shriram Upganlawar with whom accused No.3 had placed order for gold coins by handing over demand draft of Rs.28,100/-.
(iii) P.W.-9 Akshay Andhalkar, who sold T.V. Set. (iv) P.W.-10 Namdeo Nimbhare, at whose work place (a farm house), accused Nos. 1 to 5 used to come and use telephone. P.W.-10 has turned hostile.
(v) P.W.-13 Mahadeo There, the father of accused No.2, who produced Rs.8,000/-.
(vi) P.W.-14 Gajanan Chandankhede, who prepared the sketch of the spot of occurrence.
(vii) P.W.-16 Vijay Mohurle, a police constable who carried the country made gun to Ballistic Expert.
(D) EXECUTIVE MAGISTRATE :-
P.W.-12 Tulshidas Gedekar, who conducted the Test Identification Parade in respect of accused Nos. 1 to 4. (E) POLICE WITNESSES (INVESTIGATION ) :-
(i) P.W.-15 Chandraprakash Mehra, P.S.I., who registered the offence upon receipt of written report of Mr. Nair. (ii) P.W.-17 Krushnara Adewar, who carried out further investigation.
6. The case of the accused persons was of denial simplicitor. They did not examine any witness in defence.
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7. Upon consideration of the entire evidence on record, the learned Trial Judge found that there was no sanction under Section 39 of the Arms Act procured by the prosecution. Hence, the accused persons were acquitted of the offence under Section 3 read with Section 25 of the Arms Act. The trial Judge has further held that accused Nos. 1 to 5 have been identified by the eye witnesses, to have participated in the dacoity and they were armed with country made gun, knife or kukri which are deadly weapons. Accused Nos. 1 to 5 have, therefore, been convicted and sentenced as stated earlier.
8. Heard arguments. Learned Advocate Shri A. H. Lohiya argued on behalf of accused Nos. 3 and 5 whereas learned Advocate Shri R. M. Daga argued on behalf of accused Nos. 2, 3 and 4. Learned A.P.P. Shri P. D. Kothari argued on behalf of the State.
9. Perused the record and proceedings.
10. Let us first see if any recovery establishing nexus of the accused with the crime is proved.
11. The learned trial Judge has not discussed the evidence of any of the witnesses examined by the prosecution for proving recoveries at the instance of the accused persons and other recoveries. In paragraph 39 of the impugned judgment, the trial Judge has observed thus :-
"...For a moment let us accept that the discovery in respect of cash amount at the behest of accused Nos. 1, 2, 3 and 4 is not established in real sense as contemplated under Section 27 of the Evidence Act. Nevertheless, it remains fact that in all total cash of HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 9/18 Rs.2 lakhs and more is at least seized during the investigation. But, it is curious enough that no witness is coming forward to claim this cash except the office of Mr. Nair and Mr. Balki as per application Exh.12 which was allowed by my predecessor. When these amounts were seized from various houses or from witness like father of accused No.2 and witness Mr. Sanjay Ghote (P.W.-6), it is the prosecution version that absconding accused Mr. Sonu Badwal had deposited Rs.25,000/- with Sanjiv Ghote and he produced the same which was seized under panchanama Exh.75. However, this witness had also not claimed that it was his amount. These circumstances clearly show that the amounts at least seized during investigation were the booty of dacoity..."
12. First of all, the recoveries at the instance of the accused persons are not proved beyond reasonable doubt. Secondly, the numbers of the currency notes which were robbed by the dacoits are not known and hence they cannot be identified. The fact that the amount recovered being, cumulatively, big and cannot be expected to have been planted, coupled with the fact that the accused persons have not claimed that amount to be belonging to them, may be one of the circumstances against the accused persons. But the same cannot be, in itself, held to be sufficient to prove the guilt of the accused persons.
13. P.W.-6 Sanjiv Gothe has spoken about Sanu Badwal, who is absconding and who has not been tried by the trial Court. The alleged accused Sanu Badwal had no opportunity to cross examine P.W.-6. The evidence of P.W.-6 is not at all relevant as against accused Nos. 1 to 5. Therefore, attachment of amount of Rs.25,000/- handed over by P.W.-6 to the police, by saying that it was given to him by Sanu Badwal, has nothing to do HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 10/18 with accused Nos. 1 to 5, since the nexus of that money with them has not been proved.
14. P.W.-1, allegedly taken as one of the panch witnesses for the panchanamas Exhts. 40, 41, 42, and 43, being a regular witness for Chandrapur police for the last 5-7 years, signing panchanamas drawn by the police officers of Chandrapur police station, every year in about 10 cases, he is not at all reliable panch witness for disclosure and consequent recovery under section 27 of the Indian Evidence Act. P.W.-17, the Investigating Officer has admitted in his cross-examination that P.W.-1 is a stock panch witness. P.W.-18 Sanjay Ghate was the second panch witness for the panchanama (Exh.40) regarding the spot shown by Mangal Turankar and attachment of partly burnt pieces of paper, lock plate and hook of burnt suitcase. But, P.W.-18 is totally silent on this panchanama. The second panch witness taken for panchanama (Exh.41) of attachment of Rs.6,000/- from Tata Sumo jeep and for the disclosure/recovery panchanama (Exhts 42 and 43) of Rs.54,000/-, allegedly at the instance of accused No.4, have not been examined. Hence, the recovery of cash of Rs.6,000/- and Rs.54,000/-, as the booty of dacoity, is not proved.
15. P.W.-4 does not say that accused No. 1 had made a disclosure that he concealed the amount. P.W.-4 says that accused No.1 stated that he could take out amount from his house and then took out Rs.22,000/- from the wooden cot of his house. Thus, accused No.1 is not proved to be the author of concealment. In his cross-examination, P.W.-4 has stated that he did not visit the police station, Ramnagar and that the accused after taking them to HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 11/18 his house made the disclosure. He says that disclosure statement as well as recovery panchanama were prepared at the house of the accused. The above is contrary to the panchanama and disclosure statement (Exhts. 66 and 67). The above is also not in accordance with section 27 of the Evidence Act. Because of the above evidence of P.W.-4, as an afterthought, the second panch witness (P.W.-5) was examined by the prosecution. P.W.-4 was not declared hostile. His evidence cannot be discarded just like that. Since the evidence of P.W.-5 is contrary to that of P.W.-4, even P.W.-5 cannot be relied upon. Hence, the said amount of Rs. 22,000/- cannot be held as the booty of dacoity.
16. Neither P.W.-2 nor P.W.-3 has stated that he had with him any suitcase containing papers, rubber stamps, etc. Even otherwise, such suitcase was recovered from an open public place accessible to all on 3/1/2006 which is after more than five months. The evidence of P.W.-7 does not prove recovery of the said suitcase, etc. at the instance of any of the accused persons. His evidence also does not prove that cash of Rs.43,300/- was recovered at the instance of accused No.2 or that cash of Rs.10,000/- was recovered at the instance of accused No.3. The case of the prosecution,in this regard, has only remained on papers.
17. It is not known as to in what manner the draft of Rs.28,100/- given by accused No.3 to Gold Quest International Private Ltd. for purchase of gold coin is relevant to the present case. It cannot be understood as to why the police asked P.W.-8 to get the said amount of Rs.28,100/- invested by accused No.3 transferred to his name and as to why after such transfer, the HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 12/18 said amount was attached from P.W.-8. The evidence of P.W.-8 cannot prove nexus of the said amount of Rs.28,100/- with the booty of dacoity.
18. The evidence of P.W.-9 reveals that one television set was purchased on 30/7/2005 from the shop where he was working. The relevancy of said television set with the present crime is not proved.
19. P.W.-13 has denied that his son, accused No.2, had handed over the amount of Rs.8,000/- to him and that accused No.2 took out the said amount and handed it over to the police. Hence the recovery of Rs. 8,000/-, allegedly at the instance of the accused No. 2, is not proved.
20. Lastly, the evidence of P.W.-18, is not of such worth which can prove that cash of Rs.1,000/- was recovered at the instance of accused No.2 or that cash of Rs.20,000/- was recovered at the instance of accused No. 3 or that cash of Rs.10,000/- was recovered at the instance of accused No.1.
21. The evidence of the investigating officer (P.W.-17) is also not of the nature as could prove various disclosures allegedly made by accused persons under Section 27 of the Evidence Act and consequent recovery at the instance of each of the accused persons.
22. P.W.-2 and P.W.-3 have not mentioned the numbers on the currency notes, which were with them, for the purpose of identification of the cash recovered by the police vis-a-vis the cash looted by dacoits, though it was possible to get the series nos. and serial nos. from the bank. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 13/18
23. In the circumstances above, the case of the prosecution rests solely on the eye witnesses namely P.W.-2, P.W.-3 and P.W.-11.
24. According to the First Information Report prepared on the basis of written report lodged by P.W.-2, the amount of Rs.5,39,780/- was kept in brown coloured VIP suitcase. The denominations of currency notes are also mentioned. But, in his deposition, P.W.-2 says that Mr. Balki was carrying an amount of Rs.1,04,630/- given by him to Balki and an amount of Rs.4,31,350/- was kept in brown suitcase. Even the total of Rs.4,31,350/- and Rs.1,04,630/- is Rs.5,35,980/- and not Rs.5,39,780/-. In the report as well as in the deposition, P.W.-2 has stated that he had received Rs.6,64,190/- from the Division Office. He has stated that he gave Rs.1,24,410/- to Shukla; Rs.11,400/- to two employees and Rs.1,04,630/- to Balki. If the above was true, the remainder with P.W.-2 had to be Rs.4,23,750/-. Though P.W.-3, in his deposition says that he was given an amount of Rs. 1,04.630/- by P.W.-1, however he has been confronted with his police statement wherein this fact is not mentioned.
25. There is variance in the testimony of P.W.-2, P.W.-3 and P.W.-11 regarding the fact as to how many dacoits had alighted from the jeep and how many were inside the jeep. There is also variance on the facts as to what exactly happened and in what manner.
26. Though P.W.-2, P.W.-3 and P.W.-11 say that they had identified accused Nos. 1 to 4 in an Identification Parade, however, none of them has stated in his deposition as to which of the accused Nos. 1 to 4 did what. All HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 14/18 have deposed by saying that one did this and other did that and at the end they have made a general statement that they identified accused Nos. 1 to 4, in Identification Parade.
27. None of the witnesses says that accused No. 5 was identified by him in Identification Parade. P.W.-2 and P.W.-3 have not identified accused No.5 in the Court also.
28. P.W.-11, after he was recalled on 17/3/2008, has deposed that accused No.5 had engaged his vehicle on the day of incident and had removed the ignition key when his vehicle was halted near Junona Naka. P.W.-11 has stated that it was accused No.5, who had lastly handed over Rs. 6,000/- to him. However, in his cross-examination, P.W.-11 has stated that the news was published in the daily news paper that accused No.5 is absconding and that his photograph was also published. It is quite possible that on the basis of photograph of accused No.5 published in the newspaper that P.W.-11 has identified accused No.5, in the Court. P.W.-11 has further stated that he knows accused No.5 by his name. If that be so, there had to be no difficulty for P.W.-11 to state on 4/7/2007 as to what all acts were done by accused No.5, by referring to his name. P.W.-11 has not done so. As far as accused Nos. 2 and 4 are concerned, he has referred to them specifically as accused Nos. 2 and 4 only when they had initially boarded his vehicle along with the third person. P.W.-11 has not referred to these accused persons specifically by their numbers, thereafter.
29. In terms of the procedure mentioned in the Criminal Manual for HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 15/18 holding identification parades, the following is a very important step and the same is :-
"If there is only one accused person to be identified, there should be at least half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single identification parade; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance, and approximately of the same age, as the person to be identified. It is desirable that innocent persons to be mixed should be different for each such parade."
The evidence of P.W.-12, the Naib Tahsildar, reveals that all the four accused persons were asked to stand in a line along with only eight dummies and witnesses were called to identify them in single identification parade. For this reason itself, the test identification parade loses its value and cannot inspire confidence.
30. In his cross-examination, P.W.-2 has stated that at the time of incident, he had seen only 3 dacoits and two out of those three had concealed their faces by means of cloth. He has stated that the dacoits who had caused injury to him and pointed a country pistol at Balki had covered their face by means of cloth. At the end, P.W.-2 has stated that on the spot, three dacoits had covered their partial face by means of cloth. The question arises as to how P.W.-2 could identify accused Nos. 1 to 4 during the identification parade. P.W.-2 has stated that he had not identified accused Chunnilal (accused No.5) in the identification parade.
31. P.W.-3 has made some improvement. He does not say that three HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 16/18 persons had covered their face with cloth. P.W.-3 says that two persons had come near him and one had pointed out pistol at his chest and the other had pointed a knife on his abdomen. He has stated in the cross-examination that the dacoits who were standing by his side had concealed their entire face by means of cloth except the eyes. He then corrected himself by saying that his face was only partially covered by cloth.
32. P.W.-11 has made further improvement in the case as he does not at all say that any of the dacoits had covered his face either partially or completely, except the eyes, by means of cloth. P.W.-11, in fact, is the person who had carried the dacoits in his Tata Sumo jeep from beginning till end and was arrested initially as one of the accused persons but subsequently was released under Section 169 of the Code of Criminal Procedure and then he was made a witness. The evidence of such a witness cannot be wholly relied upon since he is likely to speak that which is wanted by the Investigating agency, which discharged him as an accused.
33. At page No.1 of his deposition, P.W.-11 has stated that accused Nos.2 and 4 and the accused not present before the Court had boarded his vehicle. This was stated by P.W.-11 on 4/7/2007, before recess. But, after recess when his examination-in-chief resumed, he changed his version by saying that accused Nos. 1 and 3 had boarded his vehicle from Bengali Camp. He has stated that after he was taken to police station along with his vehicle, he was interrogated and for initial half an hour, he did not disclose truth to the police and told them lies. The above facts also weaken the testimony of P.W.-11.
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34. The two eye-witnesses namely Bhujade and Shende have not been examined and hence adverse inference is bound to be drawn as against the prosecution.
35. Learned A.P.P. has relied upon the following citations :- (a) Ankush Maruti Shinde v. State of Maharashtra - (2009) 6 S.C.C. 667.
Proposition :-
"Object of TI parade is (i) to enable witnesses to satisfy themselves that the person whom they suspect is really the one who was seen by them committing the offence; and (ii) to satisfy investigating authorities that suspect is the real person whom witnesses had seen in connection with said occurrence."
(b) Pravin v. State of Madhya Pradesh - (2008) 16 S.C.C.
166. Proposition :-
"Where there is recovery of crime articles and no explanation is given by accused as to the possession of gun, a bag which belonged to a witness as well as huge sum of money, this lends support to fair investigation." (c) Ram Babu v. State of U.P. - AIR 2010 S.C. 2143 Proposition :-
"Purpose of Test Identification Parade is to test and strengthen trustworthiness of substantive evidence in Court. Evidence with regard to T. I. Parade is used for corroboration."
36. There can be no dispute about the principles laid down in the above citations, in the facts and circumstances of those cases. In the present case, though there is recovery of huge amount and other articles like television, money paid through demand draft, etc., and of the weapons, however, such recoveries are not believed by the trial Court and this Court also, after considering the evidence on record, has not believed the same. As HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal242.08+.odt 18/18 far as the identification of accused persons is concerned, the accused persons were not known previously to the witnesses and the case rests on the Test Identification Parade only. The T.I. Parade as already stated above, does not inspire confidence.
37. In all the circumstances above, I am of the view that the accused persons are entitled for benefit of doubt. The impugned judgment and order therefore warrants interference. Accused Nos. 1 to 5 are entitled for acquittal, on benefit of doubt.
38. In the result,
(i) The appeals are partly allowed.
(ii) The conviction and sentence of accused Nos. 1 to 5 is quashed and set aside.
(iii) Accused Nos. 1 to 5 are all given benefit of doubt and acquitted of the offence under Section 395 read with Section 397 of I.P.C.
(iv) The bail bonds of accused Nos. 1 to 4 and of their sureties are cancelled.
(v) Accused No.5 Chunnilal Borkar shall be released forthwith, if he is not required in any other case. (vi) The rest of the dictum pertaining to muddemal articles, mentioned in paras (4) and (5) of the impugned order, is maintained.