JUDGMENT - R.A. JAHAGIRDAR, J.:---Three persons, hereinafter referred to as "the accused", were prosecuted in Session Case No. 366 of 1981 tried by Mr. N.I. Makhijani, the learned Additional Sessions Judge of Bombay for the offences to be mentioned hereinafter. Those offences have been mentioned in the charge framed by the learned Sessions Judge and, therefore, it would be appropriate to refer to the charges themselves. We are following this procedure because the impugned judgment is so hopelessly unsatisfactory that it does not give to the Court of appeal, where we are now sitting, the least idea of what the prosecution case was, what the evidence on behalf of the prosecution was and what exactly was passing in the mind of the learned Sessions Judge while he disposed of the case before him. We are mentioning something more about the quality of this judgment little later while discussing the case of accused No. 1 who lone has appealed against the judgment and order passed by the learned Sessions Judge. 2. Returning to the charge, we notice that accused Nos. 1 to 3 were charged with the offence punishable under section 392 read with section 34 of the Indian Penal Code on the ground that they along with one person known as Taklya committed robbery in respect of coke valued at Rs. 2,500 from a truck bearing No. MTT 3080 which was in charge of one Prabhakar Reghoba Ombale. The second charge against the accused was that they along with the unknown person Taklya caused hurt to one Shrirang alias Shripa Sayappa Sable during the course of committing the aforesaid robbery and therefore, committed the offence punishable under section 394 of the Indian Penal Code. It is interesting to note that the learned Sessions Judge did not apply section 34 of the Indian Penal Code in the second charge though he specifically mentioned that accused Nos. 1 to 3 had caused the injury to Shrirang. Fortunately, the learned Sessions Judge has held that the second charges has been proved against the accused concerned. 3. The third charge was only against accused No. 1 and it was that he at the time of committing the aforesaid robbery used deadly weapon, namely a knife, and therefore, he committed an offence punishable under section 397 read with section 392 of the Indian Penal Code. 3. The third charge was only against accused No. 1 and it was that he at the time of committing the aforesaid robbery used deadly weapon, namely a knife, and therefore, he committed an offence punishable under section 397 read with section 392 of the Indian Penal Code. The fourth charge was in similar terms but against accused No. 2 alone. The fifth charge again was in similar terms but against accused No. 3 alone. Thus there were five charges. The first charge was against all the accused together and was under section 392 read with section 34 of the Indian Penal Code; the second charge again was against all the accused but for the offence punishable under section 394 of the Indian Penal Code simpliciter without the application of section 34 of the Indian Penal Code. Charges Nos. 3, 4 and 5 were against each of the three accused for the offence punishable under section 397 read with section 392 of the Indian Penal Code, again without the application of section 34 of the Indian Penal Code. We do not understand why the learned Sessions Judge framed a charge against all the three accused for the offence punishable under section 394 of the Indian Penal Code, without the application of section 34 of the Indian Penal Code when in charges Nos. 3 to 5 he has framed individual charges against each of the accused when there was no application of section 34 of the Indian Penal Code. This, together with several instances to be found in the conduct of this case, shows a non-application of mind or an inadequate application of id to the facts as well as the procedure of this particular case. 4. Normally it would be expected that a Court of first instance such as the Sessions Court would begin its judgment by mentioning that the prosecution case is, what the defence of the accused is, which evidence the prosecution has led and thereafter proceed to give reasons for the findings which the Court would arrive at. In the instant case, we are bereft of this assistance which we should get as Court of appeal from a Court of first instance because the learned Sessions Judge has not in an intelligent manner summarised the prosecution case which was unfolded before him by the examination of several prosecution witnesses. In the instant case, we are bereft of this assistance which we should get as Court of appeal from a Court of first instance because the learned Sessions Judge has not in an intelligent manner summarised the prosecution case which was unfolded before him by the examination of several prosecution witnesses. It has, therefore, become imperative for us to briefly summarise the prosecution case as is to be found in the evidence which is on record. 5. There is one Dinshaw Rusi Methta, who is the owner of a foundary situated at Foras Road in Bombay and who imports coke from outside Bombay. On 29th of June, 1981, a wagon of coke belonging to him had arrived at the goods depot and under his instructions one Suresh Baburao Bhondave (P.W. 4) cleared the same and got it loaded in a truck bearing registration No. MTT 3080. This truck was being driven by one Prabhakar Raghoba Ombale (P.W. 3) and along with the said Prabhkar an employee of Dinshaw Rusi Mehta was travelling in the truck. The name of that employee is Melleshayya Yellappa (P.W. 1) who, in our opinion, is very important witness in this case. Along with him, naturally, Prabhakar, would be an important witness. 6. According to the prosecution, after this struck was loaded at Byculla Goods Depot with the coke, it was driven in the direction of the foundary owned by Dinshaw Rusi Mehta. One Shrirang Sayappa was also in the truck, but he was travelling in the body of the truck while Malleshayya Yallappa and Prabhakar were sitting together in the cabin of the driver. When the truck came near what has been called by the witness as Chinchpokli Junction, it stopped because there was a red signal of the traffic light. After the signal changed the truck proceeded again along Sane Guruji Marg, which was formerly known as Arthur Road. At that time the truck was moving in slow speed when suddenly two persons boarded the truck on the side of the drive and two persons boarded the truck on the side where the cleaner was sitting. One of each of these pairs of persons who boarded the truck had knife in his hand. At that time the truck was moving in slow speed when suddenly two persons boarded the truck on the side of the drive and two persons boarded the truck on the side where the cleaner was sitting. One of each of these pairs of persons who boarded the truck had knife in his hand. The two persons who had knives in their hands were guarding the doors of the cabin of the truck while the other two persons went over to the main body of the truck where Shrirang was sitting. At the point of knife the truck is said to have been hijacked to a place near the Fire Brigade of Brigade of Byculla. It is the prosecution case that a part of the coke which had been loaded at the Byculla Goods Depot was removed and dumped on a footpath nearby. Thereafter, again the truck was taken by them to some distance where accused Nos. 1 and 2 got down from the truck and walked away. The two persons who had got in the main body of the truck had already left the truck. 7. The prosecution has sought to prove that the two persons who had knives are accused Nos. 1 and 2 before the Court while accused No. 3 is one of the two persons who had boarded the truck and were sitting in the main body of the truck along with Shrirang. Taklya, alleged to be the fourth person, has been absconding and, therefore, could not be tried in the sessions case. It may be stated that when the truck was stopped at one of the several junctions on its journey from Chinchpokli Junction to the Byculla Fire Brigade point Shrirang got out of the truck. One of the prosecution witness says that when Shrirang so got out of the truck an injury on his finger was noticed. The attempt probably is to show that even Shrirang could not get away freely without being injured at the hands of the persons who hijacked the truck. One of the prosecution witness says that when Shrirang so got out of the truck an injury on his finger was noticed. The attempt probably is to show that even Shrirang could not get away freely without being injured at the hands of the persons who hijacked the truck. The key witness, namely Malleshayya, has specifically mentioned that they along with the truck had left the goods depot sometime after 4 p.m. and the entire incident was over by 4.45 p.m. In the examination-in-chief itself of this witness it has not been mentioned as to what he did after the incident took place but he has mentioned that his statement, namely the first information report, was recorded at about 8 p.m. It may be added at this stage that the other evidence shows that the first information report was recorded at 8.30 p.m. on the same day. This means, 3 hours 45 minutes after the incident was over when the first information report was lodged at the Agripada Police Station by P.W. 1 Malleshayya. 8. Thereafter investigations followed. We do not propose to deal with the detailed steps of the investigation. It is sufficient for the purpose of the disposal of this appeal to mention that the accused were arrested on 30th of June, 1981 and an identification parade was held on 2nd of July, 1981. On 1st of July, 1981, the coke which was alleged to have been stolen from the truck is said to have been discovered pursuant to a statement made by accused No. 1 under section 27 of the Evidence Act. Fourteen bags of coke from the shop of one Laxman Hansraj Tripathi were attached and were produced before the Sessions Court as Article 3. On 4th of July, 1981, pursuant to a statement made by accused No. 1, a knife, being Article 1 before the Court, was discovered. Thereafter the accused were put for trial as mentioned earlier in this judgment. 9. In support of its case, the prosecution examined P.W. 1 Malleshayya Yellappa, he being the first informant, Prabhakar (P.W. 3), the driver of the truck which was hijacked and Dinshaw Rusi Mehta, the owner of the foundry for which the coke was supposed to be meant, as P.W. 2. 9. In support of its case, the prosecution examined P.W. 1 Malleshayya Yellappa, he being the first informant, Prabhakar (P.W. 3), the driver of the truck which was hijacked and Dinshaw Rusi Mehta, the owner of the foundry for which the coke was supposed to be meant, as P.W. 2. There is the evidence also of Suresh (P.W. 4) who was working at the relevant time as Mukadam with one Krishna Coal Company and who was responsible for the loading of the truck with coke at the Byculla Goods Depot. The Special Executive Magistrate who conducted the identification parade has been examined as P.W. 8. His name is Madhukar Balkrishna Chavan. The panchas to prove the discoveries have been examined and the panchanamas have been exhibited on record. We will refer to same during the course of this judgment. There is, in addition, the testimony of Dr. Agarwal, a 22 year old person who was attached to the Nair Hospital as the Casualty Medical Officer on 29th of June, 1981. He has been examined as P.W. 7 and has proved the extract of the casualty register which shows that one Shrirang was brought to the Casualty Department with an alleged history of assault with stick on right hand and abdomen. That extract is on record as Exhibit 14. Nishar Abdual Hafiz Ahmed Khan, who was at the relevant time a Sub-Inspector of Police attached to the Agripada Police Station, is the Investigating Officer and he has been examined as P. W. 10. In addition, P.S.I. Jadhav, also attached to the Agripada Police Station, has been examined as P.W. 11 because he also conducted the Investigation at the earlier stage and had recorded the complaint of P.W. 1 Malleshayya, which was treated as the first information report. 10. The defence of the accused was one of total denial. They contended that the prosecution witnesses, namely Malleshayya Yallappa and Prabhakar Raghoba were themselves hand in glove with a gang of coke pilferers and having either disposed of the commodity themselves or having helped others in disposing of the same they have thought it fit to involve the present accused. 11. The prosecution evidence at no stage suggested that more than two persons were having knives in their hands. 11. The prosecution evidence at no stage suggested that more than two persons were having knives in their hands. On the other hand, each of the prosecution witnesses, who is relevant on this aspect of the case, is unequivocal and specific that only two accused had knives in their hands and those two accused were accused Nos. 1 and 2. It is thus clear that though charged accused No. 3 could not have, by any stretch of imagination, been convicted of the offence punishable under section 397 of the Indian Penal Code. Now we proceed to notice the findings given by the learned Sessions Judge in paragraphs 62 and 63 of his judgment. He held that the prosecution has proved against all the accused the first charge of having committed the offence punishable under section 392 read with section 34 of the Indian Penal Code. It was held that the second charge was not proved. The learned Sessions Judge held that accused No. 1 was guilty of the offence punishable under section 397 read with section 392 of the Indian Penal Code. He also held that the fourth and fifth charges framed by him against accused Nos. 2 and 3 respectively were also proved and, therefore, accused Nos. 2 and 3 were guilty of the offence punishable under section 397 read with section 392 read with section 34 of the Indian Penal Code. 12. On the question of sentence, the learned Sessions Judge awarded to accused No. 1 seven years' rigorous imprisonment for the offence under section 397 of the Indian Penal Code. This was natural, as the learned Sessions Judge himself has said in paragraph 65 of his judgment, because the minimum sentence provided for the said offence is seven years and the learned Sessions Judge was "not inclined to grant him even a day more." But, for the same offence the learned Sessions Judge has awarded a sentence of three years' rigorous imprisonment to accused Nos. 2 and 3. This is wholly incomprehensible. 2 and 3. This is wholly incomprehensible. If the learned Sessions Judge understood the law correctly, as he did understand as can be seen from the contents of paragraph 65, that the minimum sentence for the offence under section 397 of the Indian Penal Code is seven years, then we do not see how he could proceed to give for the same offence less than the minimum sentence, namely three years, to accused Nos. 2 and 3. He accepted the submissions as mentioned in paragraph 66 of the judgment that accused Nos. 2 and 3 have no previous convictions on record. But section 397 does not make any distinction between persons who have got previous convictions and persons who have no previous convictions. If it is held that accused Nos. 2 and 3 committed the offence in question, there was no reason at all why they should have been awarded a sentence less then the minimum prescribed for the said offence. But, as we have already said, the conviction itself against accused No. 3 for the offence punishable under section 397 of the Indian Penal Code was, both in fact and in law, wrong. This is not the only infirmity in the said judgment which, as we will show presently, is no judgment at all in the properly understood meaning of that term. 13. While beginning this judgment of ours we have already mentioned that absolutely no assistance of any kind is available from the impugned judgment in order to understand the prosecution case, the evidence which is on record, and the findings which the learned Sessions Judge ultimately arrived at. The summary of the prosecution case attempted by the learned Sessions Judge does not give a clear picture to those who read the judgment and to those who are required to read the judgment while sitting in appeal. Each of the paragraph from paragraphs 7 to 15 starts with the following expression : "It is the case of the prosecution and it is in the evidence............." When we proceed to read the judgment, we do not see in which evidence or in the testimony of which witness the evidence which is supposed to be in the prosecution case is to be found. The testimonies of the different witnesses have not been summarised at all. The testimonies of the different witnesses have not been summarised at all. They have not been subjected to any examination, as indeed they ought to have been done, before any inference, favourable or otherwise to the accused concerned, is drawn. The statement of facts, the parts of the evidence referred to and the submissions of the Advocates appearing for the prosecution and the defence have been so inextricably interwoven that it is impossible to separate the same for understanding the judgment. In particular, we have been unable to find out the reasons which persuaded the learned Sessions Judge to arrive at the conclusions which he ultimately arrived at. In a case of this type where the findings must depend almost entirely on the acceptability of the testimonies relating to the identification of the accused concerned, an assessment of all the evidence relating to the identification of the accused must find place in the judgment. 14. However, the learned Sessions Judge in paragraph 15 of the judgment had totally shirked his responsibility in this regard. He mentions somewhat strangely, that accepting the contention of the defence Counsel, ordinarily he "would have rejected the evidence of identification parade without much difficulty if the ground was made for the same. Here for whatever reason the accused have themselves admitted as being known to the witnesses". If the learned Sessions Judge had thought it fit to accept the case of the accused being known to the witnesses, the identification parade itself loses all its value. Then what was done was a farce of an identification parade and not an identification parade to provide a test for assessing the identification that might be made by the witnesses in the Court. The learned Sessions Judge probably missed the main purpose and object of an identification parade that is held in the investigation of those cases where the accused are unknown to the witnesses who would be later examined in the trial Court. A standard text book on the Evidence Act such as Sarkar's will give to those who want to know the elementary principles underlying the identification parades. Unfortunately these principles are not often borne in mind while judging the value of the evidence relating to an identification parade. It is well settled in law that identification made by a witness at the time of the identification parade is not substantive evidence. Unfortunately these principles are not often borne in mind while judging the value of the evidence relating to an identification parade. It is well settled in law that identification made by a witness at the time of the identification parade is not substantive evidence. What is substantive evidence is the identification made by the witness in the Court. But identification parades are held as a Rule to test the evidence given in the Court. The evidence relating to the identification parade gives sort of corroboration to the testimony that is ultimately given in the Court. 15. The learned Sessions Judge has also mentioned that it was not suggested to the witnesses that they were shown to them before the parade. On this aspect of the matter we want to observed that the suggestion of the type mentioned by the learned Sessions Judge need not be made in explicit terms. The Special Executive Magistrate who conducted the identification parade has been subjected to detailed cross-examination with the object of showing that the precautions which should be taken by anyone holding identification parade were not taken by him. Normally an identification parade is held by the investigating machinery with the help of an independent person like an Executive Magistrate. The entire identification parade is within the command and control of the Police Officers except the actual identification that is being made. The accused do not know what steps have been taken by the police and in what manner. They do not know what steps have been taken by the police and in what manner. They do not know how the possibilities of errors deliberate or otherwise, are eliminated by the police while requisitioning the identification parade and holding the same. In these circumstances, it is too much to expect the accused to subject the authority holding the identification parade to any detailed cross-examination. 16. It is the duty of the prosecution to produce before the Court all the evidence which should convince the Court that the identification parade has been held in a foolproof manner leaving no doubt about the honesty, integrity and safety of the same. The learned Sessions Judge finds fault, with the accused for having not suggested to the prosecution witnesses that the accused were shown to them. The learned Sessions Judge finds fault, with the accused for having not suggested to the prosecution witnesses that the accused were shown to them. If such a question had been asked, would the learned Sessions Judge have rejected the evidence relating to the identification parade even if the answer by the prosecution witnesses was in the negative as it was bound to be in the negative? Failure to ask a formal question such as the one the learned Sessions Judge is expecting cannot be made the basis for acceptance of the evidence relating to the identification parade. Has the prosecution proved that the possibility of the accused being seen by the prosecution witnesses, if not shown to them, been eliminated by the steps taken by the Executive Magistrate and the investigating machinery? In our opinion, this is the test while examining the evidence relating to the identification parade. It is indeed a poor understanding of the evidence relating to an identification parade that is disclosed by the learned Sessions Judge in paragraph 59 of his judgment. 17. We have already mentioned how the judgment of the learned Sessions Judge is no judgment at all in the properly understood sense of that term. What is a judgment? Broadly speaking a judgment means two things-the act of judging and the written record of that act. That is a good judgment which truly and faithfully reflects in words the act of judging made by the Judge. The judgment to be a judicial judgment is not a single act; it is a process of reasoning or ratiocination. It is that mental exercise which applies itself to the two conflicting view-points canvassed before it and selects one of the points for reasons which are to be mentioned in the written record of the act of judgment. No judgment can be regarded as a considered judgment unless the reasons for accepting one and rejecting the other of the two view points are clearly mentioned in the judgment. This is especially necessary in the case of trial courts because the judgments of the trial courts are almost always subject to appeal. The trial courts should take care that the appeal courts are not handicapped, as we are being handicapped in the instant case, while deciding the correctness or otherwise of the judgment of the Court of first instance. This is especially necessary in the case of trial courts because the judgments of the trial courts are almost always subject to appeal. The trial courts should take care that the appeal courts are not handicapped, as we are being handicapped in the instant case, while deciding the correctness or otherwise of the judgment of the Court of first instance. Fortunately this is a criminal appeal where, as a final Court of facts, we normally read the entire evidence on record and despite what has been mentioned in the judgment of the Court below arrive at our own findings. But damage of a sever type can happen in a civil case where the judgment is sketchy without containing the reasoning which must form the foundation of the findings given by the trial Court. If the judgment does not reflect the search made by the trial Judge for the truth between two conflicting versions then to that extent the judgment must be said to be a poor judgment. It is the right of the parties to know the reasons that weighed with the learned Judge and, therefore, it is the duty of the Judge to disclose those reasons. In the instant case where the question of the liberty of three persons was involved we were almost thinking of remitting the case to the learned Sessions Judge for writing a judgment afresh by giving reason for the findings which he has arrived at in the impugned judgment. Since the three accused have been sentenced to jail terms we have refrained from following the last mentioned course and have proceeded to dispose of the appeal with the assistance of Mr. S.M. Paranjpe appearing for the accused and Mr. Chopda, the learned Public Prosecutor, appearing for the State. 18. From what has been mentioned by us earlier in this judgment and from what has been mentioned by the witnesses whose testimonies we are now proceeding to examine, some features can be said to be striking. One is the high degree of improbability that is writ large on the manner in which the incident is alleged to have taken place. Those who are familiar with the streets of Bombay know that the areas through which the truck is said to have passed are busy localities. One is the high degree of improbability that is writ large on the manner in which the incident is alleged to have taken place. Those who are familiar with the streets of Bombay know that the areas through which the truck is said to have passed are busy localities. The incident is said to have taken place at a time when these roads are almost flooded with vehicles of all type. The manner in which the said truck is hijacked also smacks of a fictional element. 19. The second feature which must strike one is the gross delay in the filing of the first information report by the star prosecution witness, namely Malleshayya. The third feature which is almost distressing is the fact that neither Laxman Hansraj Tripathi, the owner of the ship from whom 14 bags of coke were seized, nor Shrirang, who is alleged to have been injured by one of the four robbers, has been examined. A pointed argument was made by the learned Advocate for the defence before the learned Sessions Judge that the prosecution having failed to examine two important witnesses, namely the cleaner and Shrirang, the prosecution must be held to have failed to that extent. Let us see what the learned Sessions Judge has to say in this regard in paragraph 45 of his judgment : "Mr. Dahivalkar next contended that the prosecution has not examined the two witnesses viz. the cleaner and Shrirang. Mr. Dahivalkar had benefit of both Investigation Officers being present in the Court and could have suggested the purpose for the prosecution not examining those witnesses. Therefore, whereas I am not giving any benefit to the prosecution in relation to whatever either of them told to the police if at all but at the same time. I am not giving any benefit to the prosecution in relation to whatever either of them told to the police if at all but at the same time. I am not inclined to draw any inference against the prosecution for not having examined those witnesses. I have little doubt that if the witness Shrirang had stated something in his statement to the police, which would have the benefit of the accused, Mr. Dahivalkar would have brought on the record from the evidence of the Police Officer or atleast suggested to them that as a reason for not examining that witness." 20. I have little doubt that if the witness Shrirang had stated something in his statement to the police, which would have the benefit of the accused, Mr. Dahivalkar would have brought on the record from the evidence of the Police Officer or atleast suggested to them that as a reason for not examining that witness." 20. From what has been extracted above from the judgment of the learned Sessions Judge it is clear to us that the learned Sessions Judge does not seem to have fully understood the law which is to be found in section 162 of the Code of Criminal Procedure. When the learned Sessions Judge says that "if the witness Shrirang had stated something beneficial to the accused the learned Advocate would have easily brought the same on record by suggesting it to the Police Officer concerned," he is grievously in error. Session 162 of the Code is a total embargo on asking such questions to the Police Officer. No statement made by any person to a Police Officer in the course of an investigation under Chapter XII of the Code or any part of such statement can be used or any purpose except of the purpose of contradicting a witness as mentioned in section 162. We fail to understand how the learned Sessions Judge thought that the statement made to a Police Officer by a witness, who has not even been examined by the prosecution, or any part thereof could be brought on record even if it were beneficial to the accused. We trust and fervently hope that the learned Sessions Judge has not followed such a procedure in any of the cases which he has conducted and will not follow such a procedure in future. 21. We also cannot help mentioning the undesirability of stating that it was open to the defence Counsel to ask the Investigating Officer who was present in the Court as to why some of the prosecution witness were not examined. If certain witnesses who are found to be key witnesses or important witnesses, then it is the duty of the prosecution to explain why those witnesses wee not examined. It is not the function of the defence to allow the Investigating Officer an opportunity of giving an explanation. If certain witnesses who are found to be key witnesses or important witnesses, then it is the duty of the prosecution to explain why those witnesses wee not examined. It is not the function of the defence to allow the Investigating Officer an opportunity of giving an explanation. In the instant case, the shop owner Laxman Hansraj Tripathi was an important witness who had to be necessarily examined for the purpose of proving the seizure of coke from his shop by the police pursuant to a statement made by accused No. 1 under section 27 of the Evidence Act. Similarly, Shrirang who, according to some of the prosecution witnesses, was the first to go to the Police Station and who had been in the course of the alleged robbery injured, was a very important witness for unfolding the prosecution case. It is the duty of the prosecution to explain why these two important witnesses were not examined. 22. Contrary to what the learned Sessions Judge says in paragraph 45 of his judgment, the learned defence Counsel in fact has put this question to the Investigating Officer, who has given answers which are totally unsatisfactory. Those answers are as follows :--- "I tried to executed the warrant against Laxman Hansraj Tripathi, but he is not available at his shop and his whereabout is not known. The witness Shrirang is out of Bombay and no one knows when he shall come back. Even the witness Harbans is not in the shop and is not traceable." From where does the learned Sessions Judge get the idea that the defence Counsel has not put to the Investigating Officer the question as to why the important witnesses have not been examined by the prosecution? We find this error somewhat grave because the entire prosecution evidence was recorded by the learned Sessions Judge himself. How is it conceivable that he did not notice the answers which were given in his presence and which were recorded on his dictation? 23. Another somewhat curious feature of the prosecution is the total failure of identifying the coke seized from the shop of Laxman Hansraj Tripathi as the coke which was originally loaded on the truck in this case. 23. Another somewhat curious feature of the prosecution is the total failure of identifying the coke seized from the shop of Laxman Hansraj Tripathi as the coke which was originally loaded on the truck in this case. It has not been even suggested by the prosecution, let alone proved, that the coke seized from the shop of Laxman Tripathi was sent along with the sample of the coke taken from the truck to any chemical analyser or physical laboratory to find out that both the cokes were the same. Indeed, such a course would not have been advisable because coke after all is coke and the commodity must be available in abundance all over the country. Difference between coke in one place and coke in another place would practically be nil. Naturally, therefore, the attempt was not made, but if the prosecution had examined Laxman Hansraj Tripathi or his son Harbans then either of them could have mentioned that a particular coke which was seized from the shop was the one which was sold by one of the three accused before the Court. 24. It is somewhat astounding that a senior Police Officer should come and tell the Court and the Court should accept that the owner of a place like a shop, which is a fixed place, could not be traced by the police and, therefore, he could not be examined. Despite this, the learned Sessions Judge has proceeded, in the last paragraph of his judgment, to complement the officer concerned in this case. In our opinion, this action of the learned Sessions Judge is highly objectionable. In the first place, it is not necessary to complement the Police Officers if they have done their duty in a case of this type. In the instant case those complements are totally undesirable. The Sessions Judges should refrain from giving complements to the investigating Officers in every case merely because the investigation has resulted in conviction in the hands of those Sessions Judges. If the officers have done their duty we do not see any reason why such complements should be repeated. It is true that when a particular case is complicated and the investigation are required to be carried out for a long period of time and the number of witnesses examined is unduly large, then an appreciation in dignified words may be made in the judgment. It is true that when a particular case is complicated and the investigation are required to be carried out for a long period of time and the number of witnesses examined is unduly large, then an appreciation in dignified words may be made in the judgment. On the facts of this case, however, in the light of what we have said so far, it is clear that the complements are wholly undeserved. 25. P.W. 1. Malleshayya Yellappa has in his examination-in-chief deposed to the facts of the prosecution case as outlined by us earlier in this judgment. After mentioning that the coke was loaded to the extent of 10 or 11 tonnes, the truck was given in charge of Prabhakar to be driven. After mentioning the route which the truck took, Malleshayya has stated that two persons boarded the truck on the side of the driver and two other persons boarded the truck on the side where the cleaner of the truck was sitting. Out of those four persons, two had knives in their hands. Thereafter the witness mentioned that Shrirang got down near place popularly known as Sat Rasta. He noticed that Shrirang had an injury on his right hand figure. The truck thereafter proceeded along Baburao Jagtap Marg and stopped near Fire Brigade Station at Byculla. Actually the truck was stopped near the railway crossing. Part of the commodity which was loaded in the truck was unloaded at this place. It has not been stated by this witness or any other prosecution witness, and indeed it is not the case of the prosecution, that the coke which was unloaded from the truck was then and there taken into gunny bags to be transported later to the shop of Laxman Hansraj Tripathi. Obviously, therefore, the commodity was scooped down from the truck and dumped by the side of the road. Malleshayya has specifically stated that the whole incident was over by 4.45 p.m. Despite this, he went to lodge the first information report, according to him, at 8 a.m. and according to the contemporaneous record at 8-30 p.m. Why he took so much of time to go to police station which, to our knowledge, is within a distance of a kilometre or so from the place of the incident, has not been explained by this witness. 26. 26. In the cross-examination of this witness it has been successfully brought out how unnatural his conduct was when the accused wee allegedly hijacking the truck. He has admitted that while the ruck was in motion there was traffic on the road and there was also crowd on the way. Despite this, he did not shout for help to any person in any vehicle passing by his side The only explanation given by him was that the accused were pointing the blades of their knives to them inside. While we do not rule out the possibility of one or two persons forcing a single individual to drive a truck in a particular direction at the point of knife or by using some other force, on the facts given in the instant case it is not possible for us to accept the story given by Malleshayya. The localities through which the truck passed are busy localities and the persons standing on the footboard of the truck with knives in their hands could not have but failed to attract the attention of almost every person on the street. We also fail to understand as to why neither Malleshayya nor Prabhakar did not go immediately to the place where the coke had been dumped from the truck. Nothing also could have prevented them from taking the assistance of any Police Constable on the road to go to the place where the coke had been dumped and from getting the same guarded before the officers of concerned Police Station arrived. The conduct betrayed by Malleshaya therefore, seems to be hopelessly unnatural. It does not inspire any confidence in our mind relating to the incident unfolded by him. 27. It is for the same reason that we are unable to accept the testimony also of Prabhakar (P.W. 3). He is, as already mentioned earlier, the driver of the truck. He has also given the prosecution case almost in the same terms in which it has been mentioned by Malleshayya. It is for this reason that Mr. Chopda, the learned Public Prosecutor, has canvassed the view that story which has been consistently narrated by two prosecution witnesses should commend itself to us for acceptance. We are unable to accept this suggestion on the ground suggested by him. It is for this reason that Mr. Chopda, the learned Public Prosecutor, has canvassed the view that story which has been consistently narrated by two prosecution witnesses should commend itself to us for acceptance. We are unable to accept this suggestion on the ground suggested by him. Even if two prosecution witnesses unfold a story, which on the face of it is improbable and leaves several loop-holes unexplained, that story is unlikely to commend itself to us. Even in the testimony of P.W. 3 Prabhakar, no explanation is available as to why he and Malleshayya delayed the filing of a complaint to the police. It is only in the testimony of Dinshaw Rusi Mehta (P.W. 2) that the prosecution has ought to provide some explanation relating to the delay in the filing of the first information report. It is a somewhat unusual procedure followed by the prosecution. We are reluctant to accept the explanation, namely that it is only after owner of the goods was informed about the theft that it was decided to lodge the complaint with the police. Two persons had been solemnly entrusted with certain commodity. From their possession part of that commodity was stolen and was capable of being retrieved if only either of those persons had moved one step ahead in the direction of the law enforcing agency. This neither of them did. Therefore, the explanation given by P.W. 2 Dinshaw Mehta does not cure the infirmity in the prosecution case which is staring in our face. 28. The improbability of the prosecution case is further heightened by the fact that the coke which was apparently dumped on the footpath from the truck was allowed to be taken away allegedly by the accused who sold it to Laxman Hansraj Tripathi, who is the owner of a shop dealing particularly in coal and coke. We have already commented on this earlier in this judgment and it is not necessary to heap further comments on this utter improbability. 29. Now we turn to the discovery of a knife allegedly pursuant to a statement made by accused No. 1 under section 27 of the Evidence Act. This discovery was made on 4th of July, 1981. The panchananma at Exhibit 12 has been proved by P.W. 6 Nathuram Bhiku. The knife itself is Article 1 before the Court. 29. Now we turn to the discovery of a knife allegedly pursuant to a statement made by accused No. 1 under section 27 of the Evidence Act. This discovery was made on 4th of July, 1981. The panchananma at Exhibit 12 has been proved by P.W. 6 Nathuram Bhiku. The knife itself is Article 1 before the Court. Apart from our reluctance to accept the identification of this knife made by the prosecution witnesses, we are somewhat amused by the eagerness of the prosecution to press into service the evidence relating to the discovery as a matter of routine. P.W. 1 Malleshaya in paragraph 20 of his deposition, attempted to identify the knife (Article 1). While so doing, Mallsehaya has said that this was the knife which was in the hands of accused No. 2. On the prosecution evidence itself, the knife (Article 1) has been discovered pursuant to a statement made by accused No. 1. If the prosecution witness says that this was the knife which was in the hands of accused No. 2, we do not see how it is relevant at all to prove the case either against accused No. 1 or against accused No. 2. If the knife (Article 1) was in the hands of accused No. 2, the discovery of the same at the instance of accused No. 1 is hopelessly irrelevant. If the said knife was discovered pursuant to a statement made by accused No. 1 under section 27 of the Evidence Act, then the statement of the prosecution witness that it was in the hands of accused No. 2 is again of no consequence. Looked at from either point of view, the discovery evidence, in our opinion, is hopelessly irrelevant in this case. 30. Since the Privy Council delivered the judgment in (Kottayya v. Emperor)1, XLIX Bom.L.R. 508, it has become almost a regular feature of the investigations conducted by the Indian Police that there should be a discovery evidence. One hardly comes across a case where the investigation ha been completed without having resort to the discovery made pursuant to a statement under section 27 of the Evidence Act by one or the other of the accused. One hardly comes across a case where the investigation ha been completed without having resort to the discovery made pursuant to a statement under section 27 of the Evidence Act by one or the other of the accused. What is more regrettable is the total lack of resistance by the Public Prosecutors to the method adopted by the investigating machinery and their acquiescence in the insistence of the police to let this evidence on record without examining whether it is relevant or not. Times without number we have come across cases where articles discovered pursuant to statements made by the accused under section 27 of the Evidence Act are hopelessly innocuous and disclose no connection with the offence under investigation or with the involvement of the accused in the offence for which they are being tried. This was a fallacy which was rampant even before the Privy Council delivered the judgment in Kottayya's case and unfortunately that fallacy continues to govern the minds of the Investigating Officers even thereafter. Sir John Beaumont as a member of the Privy Council in Kottay's case who delivered the judgment, observed as follows: "It is fallacious to treat the "fact discovered" within section 27 of the Indian Evidence Act, 1872, as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stapped A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 31. But if to the statement the words be added "with which I stapped A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 31. Apart from what has been mentioned as aforesaid in the judgment of the Privy Council, unless a thing discovered has come relevance to the involvement of the accused in the crime in question, the discovery becomes absolutely irrelevant. In the instant case, apart from mechanically bringing on record the evidence relating to the discovery, nothing has been done by the public prosecutor to show how this discovery can be used either against accused No. 1 or against accused No. 2. The learned Sessions Judge in a judgment on which we have made enough comments does not also make us wiser by the examination of this discovery evidence. The only merit is that the learned Sessions Judge has not examined this evidence at all. 32. The next point which had to be established by the prosecution against the accuse was that all the accused or any of them had sold the coke which was pilfered from the truck to Laxman Hansraj Tripathi, the shop owner. There is no evidence at all to this effect. Laxman Hansraj Tripathi has been kept away from the Court by the prosecution. We have grave suspicion of the motives which prompted the prosecution not to examine Laxman Tripathi. We refuse to accept the statement of the Investigating Officer that the owner of a shop from which earlier they had attached certain quantity of coke could not be traced by the Bombay Police, if they really wanted to do so. There is thus lacking a very vital information which would have connected the theft of the article in question to the accused or to one of them. 33. There is then the evidence relating to the identification parade. While examining the reasoning given by the learned Sessions Judge we have indicated our views on the manner in which the identification parade has to be held. From what has been mentioned by P.W. 8 Madhukar Chanvan the Special Executive Magistrates, it is clear to us that he either does not know or he has not followed deliberately the instructions given by this Court in respect of identification parades. From what has been mentioned by P.W. 8 Madhukar Chanvan the Special Executive Magistrates, it is clear to us that he either does not know or he has not followed deliberately the instructions given by this Court in respect of identification parades. These instructions are contained in Rule 16 of Chapter I of the Criminal Manual issued by this Court. There are several infirmities. The testimony of the Special Executive Magistrate does not inspire confidence. No mention has been made both in the memorandum and in the testimony before the Court of the steps taken by the officer holding the identification parade for protecting the interests of the accused who are to be identified in the identification parade. The identification parade was held to get the identification of three suspects established. All the three suspect were put in the same identification parade. The Magistrate has mentioned that he arrived at the Agripada Police Station at about 11 a.m. on 2nd July, 1982 and he was shown the three accused. After seeing them he introducted the Police Officer to arrange for the dummies. Accordingly, 30 dummies were collected by the Investigating Officer. The Magistrate selected 18 dummies out of the 30 who were brought before him. He mentions, in paragraph 10 of his deposition that he did not see the suspects in the lock-up on that day. Then he does not explain as to how and at what place the three accused were shown to him as mentioned in paragraph 1 of his deposition. Further, he has not cared to tell the Court that he selected the 18 dummies looking to their age, appearance, height etc. It has been mentioned by this Court, and it is matter of common sense, that the suspect should be placed among persons having, as far as possible, the same age, height and general appearance. It is also necessary that two suspects who are not similar in appearance or where there are more than two suspects, separate parade should be held using different persons on each parade. The Special Executive Magistrate has not even cared to tell the Court either in the oral testimony or in the memorandum that the persons who were selected as dummies by him were similar in appearance or were more or less of the same age as the suspects. He held only one parade for getting three suspects identified. 34. The Special Executive Magistrate has not even cared to tell the Court either in the oral testimony or in the memorandum that the persons who were selected as dummies by him were similar in appearance or were more or less of the same age as the suspects. He held only one parade for getting three suspects identified. 34. The infirmity of this identification parade is further seen from the fact that when the identifying witness Malleshayya picked up the suspects, he has not mentioned as to which accused had played which role when the incident in question took place. Normally the usefulness of an identification parade is established if at the time of the identification parade the identifying witness identifies a particular suspect by attributing an action in which he was involved at the time of the incident. It is for these reasons that we are reluctant to act upon the evidence relating to the identification parade despite the fact that the learned Sessions Judge found that there is no effective challenge to the testimony of the Special Executive Magistrate. A challenge need not be direct as it is sometimes done at least in Bombay by saying "I put it to you...." 35. Summarising our findings after the detailed examination of the entire prosecution evidence which we have made, we may state that : 1) The utter improbability of the prosecution case is staring in our face in this case. It is impossible to accept the claim of the prosecution witnesses that the incident, if one took place, did take place in the manner suggested by the prosecution witnesses; 2) The inordinate delay in the filing of the first information report has not improved the prosecution case; on the other hand, it has wakened the already debilitated prosecution case; 3) The improbability of the prosecution case is heightened by the failure of the prosecution witnesses, who were the victims of the robbery, to go to the place where the coke had been dumped on the footpath and either to guard it or to retrieve it by taking the assistance of even one Police Constable whom they could have easily found. The nearest Police Station was not even one kilometre away from the place where the coke had been dumped. The nearest Police Station was not even one kilometre away from the place where the coke had been dumped. 4) The non-examination of Shrirang Sayappa who was, according to the prosecution, injured during the course of the robbery that took place and also of Laxman Hansraj Tripathi is fatal to a case like this which is, on the face of it, improbable. The already weak case of the prosecution was made weaker by the prosecution with holding from the Court an important witness such as Laxman Hansraj Tripathi without examining whom the involvement of any of the accused in the sale of coke could not have been established; 5) The non-examination of the shop owner Laxman Hansraj Tripathi or any body from his shop who purchased the coke has resulted in on evidence being available to show that the accused or any of them sole the stolen coke to the shop owner. 6) The discovery of the knife (Article 1) at the instance of accused No. 1 is also of no consequence because, according to P.W. 1 Malleshayya, this knife was in the hands of accused No. 2. We have also grave doubt about the ability of P.W. 1 Malleshayya to identify the knife which is of type commonly used. 7) The identification parade bristles with irregularities and weaknessess making it unsafe for a Court to act upon the same. 36. All that has been said by us while examining the prosecution evidence gives rise to a grave suspicion that the prosecution witnesses themselves might have been responsible for the disappearance of the coke which they did not help in retrieving by taking early and effective steps. It is sufficient, however, for the purpose of the disposal of this appeal to mention that the prosecution has failed to prove its case beyond reasonable doubt. We are thus constrained to reverse the order of conviction recorded by the learned Sessions Judge and acquit the accused which we now proceed to do . 37. From what we have mentioned above it is clear that accused No. 1 who is the only appellant before us, is being acquitted by us on grounds which are common to all the accused. In such a case it is open to this Court by exercising its revisional jurisdiction to review the case of the non-appealing accused also. 37. From what we have mentioned above it is clear that accused No. 1 who is the only appellant before us, is being acquitted by us on grounds which are common to all the accused. In such a case it is open to this Court by exercising its revisional jurisdiction to review the case of the non-appealing accused also. If this is done, and since we have held that the whole prosecution case is hopelessly improbable, the other non-appealing accused are also entitled to acquittal. 38. Before we proceed to pass the final order we want to make an observation that the paper books which have been submitted for this Court in the present case are full of typing errors. The paper book has been certified by the Registrar of the Sessions Court at Bombay that it has been properly prepared as per instructions contained in the Criminal Manual. The arrangement of the matter may be according to the instructions given in the Criminal Manual, but the paper book does not bear any endorsement as to who has typed the same and who has compared the same. As regards the efficiency of typing in case we only refer to pages 94 and 95 of this paper book which shall be brought to the pointed attention of the Registrar of the Sessions Court. We direct that he should immediately inquire as to who has typed this paper book and who has compared the typing done. In future, the Registrar should make himself sure, before certifying, that the paper book has been prepared in accordance with the instructions given and that the paper book bears an endorsement that it has been typed by a particular person and that it has been compared by another person. We are constrained to say all this because the paper book contains several errors and mistakes some of them on the verge of being howlers. 39. In the result, this appeal is allowed. The order of convictions and sentence recorded by the learned Additional Sessions Judge of Greater Bombay in Sessions Case No. 466 of 1981 as against accused No. 1, is set aside. In exercised of the powers of this Court in revision, we also set aside the orders of convictions and sentences even in so far as they relate to accused Nos. 2 and 3. In exercised of the powers of this Court in revision, we also set aside the orders of convictions and sentences even in so far as they relate to accused Nos. 2 and 3. All the accused shall be set at liberty forthwith if not required in any other case. -----