( 1 ) THESE two appeals arise out of the judgment and order of conviction and sentence dated 20-8-197? passed by the learned Sessions Judge, Bidar in SC. 52 of 1976 on his file convicting the accused fr an offence punihable under Sec. 395 IPC and sentencing each of them to undergo RI for three years. The appellants were original accused Nos. 1, 4, 5, 6 and 10. Crl. App. 375 of 1977 is instituted by accused Nos. 1, 4, 6 and 10; whereas crl. App. 24 of 1978 is instituted by original accused No. 5. ( 2 ) THE relevant facts leading up to the present appeals are these : it is the case of the prosecution that ten accused persons including the present appellants committed dacoity about 6-30 P. M. on 26-10-76 on the Bhalki-Bhatambra road between Kilometre Stonas Nos. 8 and 9 and that they were armed with lathies while conjointly committing dacaity of cash, brass pot, Lingada Kai, wrist watch, umbrella, jowar, etc, in all worth Rs. 1,363 from the persons of PW. 17, Bandappa; PW. 10, sharanappa, PW. 10 Vaijnath; PW. 18 Aziz Miyan; PW. 16 Sopan; PW. 22 baswanappa and Eknath and Maqsood by beating them with sticks. Thus the prosecution alleged that accused persons committed an offence punishable under Sec. 395 IPC. ( 3 ) ON the fateful evening PW. 16 Sopan, PW. 19 Abdul Aziz, PW. 20 vajnath had taken their cart as usual to Bhalki. PW. 2, Babu Miyan had given Rs. 80 to Lhe cartman Aziz to purchase jowar for him. PW. 3 amruthrao who had gaie to Bhalki on that Saturday had purchased one bag of hybrid jowar and he had loaded the, said jowar in the cart of Vaijnath find directed him to take the bag to the village and he had himself travelled by a bus to the village. PW. 4 Kondiba had purchased 25 Kgs of jowar at Bhalki and had loaded the bag in the cart of Span with a request that he should deliver the same in his village. He had travelled by bus. PW. 9 Masqood Ali had also gone to Bhalki that day as it was a shandy day. He purchased jowar and gave it to the cartman PW-19 Abdul Aziz. These cartmen left Bhalki with the articles to the village Bhatambra at about 5-30 p. m. ( 4 ) PW. He had travelled by bus. PW. 9 Masqood Ali had also gone to Bhalki that day as it was a shandy day. He purchased jowar and gave it to the cartman PW-19 Abdul Aziz. These cartmen left Bhalki with the articles to the village Bhatambra at about 5-30 p. m. ( 4 ) PW. 10 Sharanappa a teacher at Bhatmbra had also gone to Bhalki on that day to purchase jowar and clothes etc. He purchased one quintal; of jowar and he loaded the jowar in the cart of PW. 20 Vaijnath. He had also purchasd blouse piece and a frock for his daughter. He intended to return by bus. However, when he went to the bus stand he found that he had missed the bus, so he left for the village on foot. PW. 17 Bandappa, who is also a resident of Bhatambra and is working as a teacher in Satya nikethan Vidyalaya at Bhalki, had gone to Bhalki to attend school. He left Bhalki at about 6-15 p. m. for Bhatambra on his bicycle. He had come up to the garden land of PW. 18 Aziz Miyan. He met on the way PW. 10 sharanappa. He had gone ahead by a few faces when 8 or 10 persons blocked the road, caught hold of his cycle and beat him with sticks. He fell down. Thereupon, the culprits unburdened him of the money Rs. 400 with him. They also removed the wrist watch from his hand. It was a fsvre-Leuba wrist watch. Then the culprits assaulted PW. 10 Sharanappa, who came to his rescue. They also assaulted the cartmen and robbed the articles in the cart. With the help of Sharanappa and villagers who arrived at the spot, PW. 17 Bandappa went later to his village and next day i. e. , on 4-7-76 he gave a complaint to the Bhalki Police Station, as per Ext. P6. Thereupon, the Bhalki Police after completing the investigation submitted the charge sheet before the Judicial Magistrate First class, Bhalki, which was registered in CC. 572/3 of 1976 and the learned magistrate on going through the records found that it was a case exclusively triable in the Court of Sessions at Bidar and committed the accused to take their trial before the Sessions Judge at Bidar by his order dt. 26-10- 1p76. 572/3 of 1976 and the learned magistrate on going through the records found that it was a case exclusively triable in the Court of Sessions at Bidar and committed the accused to take their trial before the Sessions Judge at Bidar by his order dt. 26-10- 1p76. A1 to A9 were committed first by the said order and later A10 deyrya was committed in CC. 9 of 1977 on 7-1-77 as A10 was absconding and was arrested later and produced before the Court. ( 5 ) THE learned Sessions Judge framed the charge against the accused on 26-2-77 and recorded their plea. The accused pleaded not guilty and claimed to be tried. Thereupon the prosecution examined 29 witnessed in support of their case inclusive of IOs, got marked Exts. P1 to P21 and the mos. 1 to 8. The accused were examined under Sec. 313 Crlpc to enable them to explain the circumstances appearing against them in the evidence. They denied having committed the offence. They did not adduce any evidence on their behalf. The learned Sessions Judge appreciating the evidence on record held the present appellants guilty of the offence punishable under Sec. 395 IPC and sentenced them each to undergo R1 for 3 years by his judgment and order dated 20-8-77. Aggrieved by the said order of conviction and sentence, the accused have come up in appeal before this court. ( 6 ) IT is necessary to mention that the accused persons were total strangers to the complainant and to the other persons who were robbed after the case was registered on the basis of the FIRExt. P6 by PW. 26, manikeppa, the Station House Officer on. 4-7-76 at about 11 a. m. the investigation commenced. The Station House Officer recorded the statements of the injured witnesses PW. 10 Sharanappa. PW. 20 Vaijanath, pw. 19 Abdul Aziz and sent the injured persons to the Civil Hospital at bidar through HC. 243 for treatment. The Station House Officer visited the spot and drew up a Spot mahazar as per Ext. P2. He proceeded to collect information and during the course of investigation he came to know that some Lambadas had come within the limits of Bhatambra on the date of offence. They had burnt a rabbit within the limits of Bhatambra. PW. 26 manikappa, visited the place and drew a panchanama as per Ext. P3. P2. He proceeded to collect information and during the course of investigation he came to know that some Lambadas had come within the limits of Bhatambra on the date of offence. They had burnt a rabbit within the limits of Bhatambra. PW. 26 manikappa, visited the place and drew a panchanama as per Ext. P3. Thereafter the CPI took over the further investigation. The CPI is examined as PW. . 28. He recorded the statements of PWs. 1, 7, 8, 9, 12, 13, 11, 3, 19 and others. On 8-7-76, he recorded the statement of PW. 2 Babu. On 10-7-76 he visited Ghat Boral Tanda, Saigaon Tanda and made enquiries about the case. He gathered information that one Somlya of Kallur Tanda and his associates were suspects in the case. On 16-7-76 he came to know that the associates of A5 Somlya were taking shelter at Kudwandpur jungle. So at about 6 a. m. he raided Kudwandpur Jungle with his staff. He saw some persons running; chasing them the police apprehended them. The persons disclosed their names as A1 Pemya and A2 Devrya. He recorded their voluntary statement as per Exts. P19 and P18 respectively. On the information supplied by these accused he raided Gorchincholi tanda where he arrested A3 Umaji and A4 Shivaji. They also volunteered information during, interrogation as per Exts. P20 and P21. He recovered some properties as per the voluntary information revealed by these accused. A2 Devrya produced MO. 5 an old umbrella kept concealed in the house. It was seized under a panchanarna Ext. P11. PW. 24 is the panch witness. Al Pemya produced from his house a bag MO-6 containing 7 Kgs of hybrid pwar. It was seized under the panchanarna Ext. P12. Then A3 Umaji produced 1 gunny bag MO. 8 containing 9 Kgs of jowar. The name of ekanath was written on the gunny bag. He also produced brass lota MO. 7. They were seized under the panchanarna Ext. P13. Then A4 Shivaji produced one gunny bag MO. 2 containing hybrid jowar of 7 Kgs. The name of kondiba was written on the bag. It was seized under the panchanarna Ext. P14. The accused were produced before the Judicial Magistrate First Class at about 7-45 p. m. ( 7 ) ON 17-7-76 PW. 28, the CPI raided Ghat Barol Tanda. No body was traced. 2 containing hybrid jowar of 7 Kgs. The name of kondiba was written on the bag. It was seized under the panchanarna Ext. P14. The accused were produced before the Judicial Magistrate First Class at about 7-45 p. m. ( 7 ) ON 17-7-76 PW. 28, the CPI raided Ghat Barol Tanda. No body was traced. From 19-1-1976 to 22-7-76 he continued his search, but in vain. On 23-7-76 he received reliable information that A5 Somlya and A6 Keshya were taking shelter in Kallur Tanda. He raided the Tanda at about 6p. m. The accused persons started running as soon as they saw the police jeep. They chased and the accused were caught. They recovered the wrist watch from the person of Somlya and a gunny bag from A6 Keshya. The io also recorded the voluntary statements of Somlya and Keshya. He produced the accused before the Judicial Magistrate First Class, Bhalki on 24-7-76. He requested the Taluk Magistrate to hold an identification parade. Identification parade was held on 6-8-76. Again on 21-8-76 the Tahsildar, bhalki held identification parade and haying completed the investigation against these accused the IO submitted the charge sheet before the Judicial magistrate First Class, Bhalki, on 27-8-76. The remaining accused no. 10 was apprehended later by PW. 29 and a separate charge sheet presented against him. ( 8 ) THE learned Sessions Judge in the course of his judgment has held that the present appellants viz, accused Nos. 1, 4, 5, 6 and 10 are properly identified by the witnesses in the parades as also before Court. He has further held that some of them voluntarily revealed information leading to the discoveries of articles involved in the dacoity. It is on these two grounds that the learned Sessions Judge has convicted and sentenced them for the offence punishable under Sec. 395 of the Indian Penal Code. ( 9 ) THE learned Advocate appearing for the appellants vehemenly contended before me that the learned Sessions Judge grieviously erred in placing reliance on the identification of the accused during identification parades; he submitted that the parades were mot at all held in a proper manner and the Sessions Judge was not justified in placing reliance on the identification in such parades and fixing the identity of these accused that they were the dacoits. He further submitted that the recoveries were a mere farce and the articles recovered were not identified to be the articles involved in the dacoity and hence, he submitted that all the appellants are entitled to acquittal. ( 10 ) AS against that, the learned Govt Pleader argued supporting the findings of the learned Sessions Judge. I was taken through the evidence as also the judgment of the learned Sessions Judge. ( 11 ) THE points that arise for my consideration are : (i) Whether the learned Sessions Judge was justified in holding that the identification of the accused at the parades by the witnesses properly corroborated the identification of the accused before Court? (ii) Whether the learned Sessions Judge was justified in holding that the various accused persons convicted by him volunteered information leading to the discoveries of the articles involved in the dacoity? ( 12 ) IT is now well settled that the identification by the witnesses in the parade during investigation only serves to corroborate the evidence f the witnesses in Court. But the value of such corroborating evidence depends upon the precautions exercised by the Executive Magistrate while holding the identification parade. AS a matter of prudence, the parade should be held as early as possible after the arrest of the accused, so that there will he no chance for the witnesses to see the accused before hand. It is also equally necessary that the witnesses must have had a chance of observing the features of the accused during the incident. Prudence requires that at the parade people with similar height and features should be mixed up with the accused in the proportion of not less than 1 to 6 and the Executive Magistrate should also take care that there is no occasion for any Police Officer to be present at the parade to prompt the witnesses. ( 13 ) IN the case of Pameshwar Singh v. State of J and K, AIR. 1972 SC 102. the Supreme court has held that the identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. the Supreme court has held that the identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view such an identification parade is a matter of great importance both for the investigating agency and for the accused. ( 14 ) IN the case of Hasib v. State of Bihar, AIR. 1972 SC. 283. the Supreme Court has made similar observations. The Supreme Court has further observed that such a parade should be held at the earliest opportunity for it tends to minimise the chance of the memory of the identifying witnesses fading away due to long lapste of time. In addition, the police have no opportunity of showing the accused to the witnesses. The Supreme Court has further observed :" But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. " ( 15 ) IN the case of yeshwant v. State of Maharashtra, AIR. 1973 SC. 337. the Magistrate took no precautions to see that other similarly bearded men joined the parade. The accused had beard in that case. There were only five other persons in the parade. The identification proceedings, in the circumstances, was described as a farce. ( 16 ) IN the instant case, the learned Counsel appearing for the appellants strenuously argued that the witnesses said to have been robbed on the night of 3-7-76 had no opportunity to see the features of the accused. He contended that though the charge stated that the incident took place at about 6-30 p. m. , the incident took place much later. The witnesses have no doubt stated that it was about 7 p. m. , and it was sun-set time when they started from Bhalki. Besides it was raining. He contended that though the charge stated that the incident took place at about 6-30 p. m. , the incident took place much later. The witnesses have no doubt stated that it was about 7 p. m. , and it was sun-set time when they started from Bhalki. Besides it was raining. That being so, there is substance in the submission made by the learned Counsel for the appellants that the concerned witnesses had no chance of observing the features of the accused. ( 17 ) THIS submission gains ground for the reason that in the FIR the features of the accused are not at all described. The features are not described even in the statements of these witnesses recorded by the police. What is more, neither in the FIR nor in their statements taken at the earliest opportunity these witnesses have not even stated that the persons who assaulted them were 'lambadas'. That conclusively proves that these witnesses had no occasion to observe the features of the accused. ( 18 ) IT is PW. 25 Krishna Gowda, Tahsildar, who held the identification parade. The first parade was held on 6-8-76. Six accused persons were made to participate. They are A1 Pemya, A2 Devrya, A3 Umaji, a4 Shivaji, A5 Somlya and A6 Keshya. Six Witnesses were present to identify. They were PW. 17 Bandappa, the complainant; PW. 10 sharanappa, one of the injured; PW. 20 Vaijnath, cartman who was also injured; pw. 19 Abdul Aziz; PW. 16 a cart-man and PW. 22 Baswanappa. These accused were mixed up with 10 other persons, according to the Tahsildar. go, it is obvious that six accused persons were mixed up only with ten others. The Tahsildar has not taken care to see that these ten others were similar in appearance. In fact, neither the Tahsildar nor the panchas make it clear that these ten persons who were mixed were Lambadas. The accused were Lambadas. That being so, it was necessary while arranging the parade that at least some 40 Lambadas having similar appearance should have been mixed up in the parade along with the six accused. The Tahsildar has failed to take this necessary precaution. The accused were Lambadas. That being so, it was necessary while arranging the parade that at least some 40 Lambadas having similar appearance should have been mixed up in the parade along with the six accused. The Tahsildar has failed to take this necessary precaution. ( 19 ) MOREOVER, the accused were arrested in the month of July itself the parade is held in the month of August and what is worse it is in evidence that these accused were brought to the village by the police and the witnesses had an Occasion to see them. For example PW. 19 Abdul aziz had stated "once the Police had brought A1 and A4 to our village. The persons who were assaulted were shown the accused". Similarly pw. 20 has stated in para 5 of his deposition "the CPI had come once to the village with the accused". Thus it becomes obvious that the witnesses had an occasion to see the accused before hand. That being so, it becomes obvious that no evidentiary value could be attached to the identification at the parade held on 6-8-76. Similar is the fate of other identification parades also. ( 20 ) ANOTHER identification parade was held on 21-8-76 much later. It was with regard to the same accused. The witnesses who were called for identification were different. They were PW. 18 Aziz Miyan, Eknath pw. 9 Maqsood Ali. The same infirmities which I have described above existed in the idenltificaltion parade held on 21-8-1976 also. ( 21 ) THEN on 25-11-76 identification parade was arranged with regard to A10 Devrya. Seven witnesses were called to identify. A10 was mixed up with five others. Herein again the number was not sufficient and the tahsildar did not take care to see that other Lambadas having similar appearance were mixed up. Moreover, the parade was held belated. It cannot be said that the witnesses had no chance of observing the accused earlier. Hence appreciating the circumstances the parades were nothing more than a mere farce. No importance could be attached to the identification of the accused in these parades by the witnesses. The learned Sessions Judge has faidled to consider these aspects. He has, without ariticall appreciation, held that the identificaltion by the witnesses in the parades corroborates their evidence before the Court which clearly is an error. No importance could be attached to the identification of the accused in these parades by the witnesses. The learned Sessions Judge has faidled to consider these aspects. He has, without ariticall appreciation, held that the identificaltion by the witnesses in the parades corroborates their evidence before the Court which clearly is an error. ( 22 ) IF that goes away what remains is the so called discovery made by the IO as the result of information volunteered by the accused. I will presently proceed to analyse the evidence on the aspect of the said discoveries. ( 23 ) A1 Pemya and A2 Devrya were arrested by PW. 28 Mamkappa who was then the CPI, on 26-7-76 at about 5 a. m. He recorded their voluntary statements as per Exts. P19 and P18 respectively. Similarly, he arrested A3 Umaji and A4 Shivaji on the same day and recorded their voluntary statements as per Exts. P20 and P21. Thereafter, he proceeded to Halsi village to recover the properties to be produced by Al and A2. PW. 24 Revappa was the panch along with another. According to IO, a. 2 Devrya produced MO. 5 an umbrella kept in his house. It was seized under the panchanama Ext. P11. ( 24 ) IT is further the case of the IO that A2 Devrya produced 7 Kgs of hybrid jowar and a gunny bag MO. 6 and that the same were seized under the panchanama Ext. P12. According to him MO. 6 the bag had on it the name of Aziz. ( 25 ) A3 Umaji thereafter produced a gunny bag MO8 containing 9 Kgs of jowar and a brass lota MO. 7 on which the name of Eknath was engraved and the same were seized under the panchanama Ext. P13 At the instance of A4 Shivaji MO. 2 a gunny bag containing 7 Kgs of hy jawar was recovered and the same was seized under the panchanama Ext. P14. The name of PW. 4 Kondiba was written on the gunny bag. ( 26 ) IT may at once be noted that Eknath is not examined by the prosecution in the case at all. So, the identity of MOs. 7 and 8 are not established. Hence, the learned Sessions Judge has acquitted A3 Umaji. Similarly A2 Devrya is acquitted. The learned Sessions Judge has, however, believed the recovery with regard to A1. ( 26 ) IT may at once be noted that Eknath is not examined by the prosecution in the case at all. So, the identity of MOs. 7 and 8 are not established. Hence, the learned Sessions Judge has acquitted A3 Umaji. Similarly A2 Devrya is acquitted. The learned Sessions Judge has, however, believed the recovery with regard to A1. Pemya and A4 Shivaji. As rightly argued by the learned Counsel for the appellants, the identity of the articles viz, MO. 5 old umbrella and MO. 2 a bag containing 7 Kgs of hybrid jowar said to have been produced by A4 Shivaji are not established to be the subject matter of the dacoity. It may generally be stated that neither in the FIR nor in the statement f witnesses given to the police at the earliest opportunity, there is no mention that the gunny bags had on them the names of the owners. Relying on the circumstances the learned Counsel rightly argued that this appears to be a subsequent manoeuvre on the part of the IO. Such a submission cannot be brushed aside as unfounded, since the fact is not mentioned to the earliest opportunity by the concerned witnesses or in the complaint. The umbrella mo. 5 does not tally with the description given by the concerned witnesses at the earliest opportunity. Hence, I have no hesitation to hold that the so called recoveries do not in any way connect the accused Nos. 1 and 4 with the crime. ( 27 ) THEN there is the case of A5 Somlya According to IO on 23-7-76 he arrested A5 Somlya and A6 Keshya and recorded their statements immediately during interrogation. According to him A5 Somlya was wearing, the wrist watch said to have been robbed during the dacoity. It is of interest to note in this context that the versions of witnessee differ as to where A5 Somlya had kept the watch. According to one he was wearing it on the wrist. According to another he had it on his person. Besides as rightly pointed out by the learned Counsel for the appellants the learned sessions Judge has failed to appreciate the broad probability in the case. According to one he was wearing it on the wrist. According to another he had it on his person. Besides as rightly pointed out by the learned Counsel for the appellants the learned sessions Judge has failed to appreciate the broad probability in the case. If really A5 Somlya had robbed the watch, it is highly improbable that he would parade the stolen watch by tying it to the wrist, especially so, when he knew that the police were searching for him and he was according to the prosecution actually absconding. There is a discrepancy with regard to the description, of the watch also. In the circumstances, I am not inclined to believe that the watch was recovered from the person Somlya when he was arrested and that forms the feeble evidence that is established against Somlya. ( 28 ) IT is the case of the IO that A6 Keshya had a gunny bag OH his person which had the name of Amruthrao on it. The same criticism which levelled above with regard to the name, holds good here also. It is wholly improbable that A6 Keshya would carry the gunny bag with him when he was absconding. The version is very artificial on the face of it and it is difficult to swallow it. Hence, I reject the version of the prosecution and hold that there is nothing on record to connect A6 Keshya with commission of crime. ( 29 ) IN the result, I hold that the prosecution has failed to establish the complicity of any of the accused persons in the crime by eliciting voluntary statements from them leading to the discovery of incriminatin articles. ( 30 ) IN the result, the appeal is allowed. The order of the learned sessions Judge, dated 20th August 1977 convicting the present appellant : i. e. , A1 Pemya, A4 Shivaji, A5 Somlya, A6 Keshya and A10 Devrya is hereby set aside. They are acquitted of the charge under Sec. 395 of the indian Penal Code for which they were tried. Their bail bonds are cancelled. --- *** --- .