Malik Sharief-Ud-Din,j. ( 1 ) THE appellant was convicted and sentenced toundergo R. I. for five years and a fine of Rs. 100. 00 under sections 392/34 IPC. In default of payment of fine he was sentenced to undergo further R. I. forone month. His accomplice, one Kailash appellant in Criminal Appeal No. 103of 1986 was also sentenced to undergo similar sentence under sections 392/34ipc. He was, however, additionally convicted and sentenced to seven years r. I. and to a fine of Rs. 200. 00, in default of payment of fine to undergo furtherr. I. for two months under section 397 IPC. ( 2 ) BAWA Gurcharan Singh argued the case of the appellant, Chamanlal, while counsel for second appellant namely Kailash did not appearthough the case was adjourned as part heard till today. In so far as the caseof the appellant Kailash is concerned, Mr. R. P. Lao in the absence of thecounsel for the appellant has very fairly taken me through the entire record. ( 3 ) THE case of the prosecution is that on 16/01/1985 thecomplainant Ram Sahai at about 10. 30 PM had gone to contact onebaij Nath at Chandni Mahal with a view to collect some cereals in regardof his avocation. Earlier in the day. Ram Sahai failed to deliver the sameto him as he had left the shop due to indisposition and his servant hadclosed the shop early. Ram Sahai complainant did not know the actuallocation of the house of Baij Nath though he was aware that Baij Nath isresiding in Chandni Mahal. After disembarking from the three-wheeler hemet a person whom he described as dark complexioned, 5 ft. tall and agedbetween 20 to 22 years. He also stated that the said person was wearing a Jersywith stripes and a trouser of black colour. On enquiry from the said personabout the house of Baij Nath he is alleged to have advised him to go tothe adjoining street, ft is alleged that the moment he took a turn to thatstreet the said person came and caught by the seller. It is also alleged thatthe said person took out a razor and at the point of inflicting an injury askedhim to hand over whatever he was carrying on his person. It is furtheralleged that another person with dark complexion, well-built body, 20 yearsof age and 5 ft. It is also alleged thatthe said person took out a razor and at the point of inflicting an injury askedhim to hand over whatever he was carrying on his person. It is furtheralleged that another person with dark complexion, well-built body, 20 yearsof age and 5 ft. height joined him and these persons then robbed him ofhis wrist watch of Ricoh make and a sum of Rs. 500. 00 as well as onemembership slip which he was carrying in his pocket. This the appellant issaid to have done by putting the complainant in fear of death. ( 4 ) AT about 12. 05 AM of the same night, S. I. Punnu Ram alongwith S. I. Jai Ram, head constable, Ram Chander, Raj Singh, Satish Kumarand Satyawan constables visited the scene of incident. It is alleged that asecret information at this stage was received pursuant to which thay allwent towards Delite Cinema and they found a number of persons sleeping inthe Verandah. Kailash on seeing the police party made an attempt to runaway but on the pointing out of the complainant he was apprehended andricoh watch Ex. P-1 was recovered from his person. It is further said thathis disclosure statement was recorded and consequent to that statement heled the party to the house of Chaman Lal appellant and on his searchrs. 500. 00 of the denomination as given in the F. I. R. and one razor as alsoa slip belonging to the complainant were recovered from his person. Thisslip was in respect of membership fee of Rs. 20. 00 paid by the complainantto Delhi Patri Viyapar Mandal. ( 5 ) IT would be noticed that 8 witnesses were examined at trial. Ramsahai complainant had supported the prosecution case and he has partlybeen corroborated by PW1 Baij Nath in so far his business relations with himare concerned. Verinder Parkash PW3 has identified the seized wrist watchas belonging to Ram Sahai. He is his nephew. There is otherwise no disputein respect of the ownership of the wrist watch as I find the accused Kailashhas not owned it. Subhash Chopra PW6 has proved this slip Ex. PW6/afor a sum of Rs. 20. 00 as one issued by him in favour of Ram Sahai. Jairam S. I. PW7 and S. I. Punnu Ram PW8 are witnesses in respect ofthe arrest of the accused, recovery of watch Ex. Subhash Chopra PW6 has proved this slip Ex. PW6/afor a sum of Rs. 20. 00 as one issued by him in favour of Ram Sahai. Jairam S. I. PW7 and S. I. Punnu Ram PW8 are witnesses in respect ofthe arrest of the accused, recovery of watch Ex. P-1 from Kailash and thedisclosure statement made by him and also to the recovery of razor Ex. P-2,currency notes of Rs. 500. 00 and the receipt Ex. PW6/a form the possession,of the appellant S. I. , Jai Ram has further testified that Kailash was interrogated in the presence of persons who were sleeping in the verandah andthat at the time of recovery from the appellant Ram Sahai complainant didnot enter his room and was standing outside the gate. Both the witnessespw7 and PW8 have admitted that no-body present in the Verandah at thetime of arrest of Kailash nor from the neighbourhood of the appellant werejoined in the investigation. The case of the appellant and his co-accusedis of denial. The appellant has, however, added that when he was takento the police station, they demanded Rs. 500. 00 from him which he paid tothem through his brother Surinder and that he was falsely implicated inthis case. ( 6 ) I have carefully considered the arguments advanced and have alsogone through the record. The case of the prosecution is that Kailash wasarrested in pursuance of a secret information and at that pointing out ofram Sahai PW2 complainant in the case. Ram Sahai has not supported theprosecution in respect of the fact that he pointed out towards Kailash. I ammaking a reference to this fact for one important reason that there has been notest identification parade in this case. Admittedly, the two persons who arealleged to have robbed PW2 Ram Sahai were; not known to him and admittedlynone of them was apprehended at the time of commission of offence. Underthese circumstances it was necessary to conduct a test identification parade andthe identification of the accused persons for the first time in court in law is ofno value. ( 7 ) THE second important factor that straight way goes to supportthe doubt that appellant has wrongly been implicated is the point of timeat which Kailash is said to have made disclosure statement about theinvolvement of appellant. ( 7 ) THE second important factor that straight way goes to supportthe doubt that appellant has wrongly been implicated is the point of timeat which Kailash is said to have made disclosure statement about theinvolvement of appellant. I am not in aposition to understand in the firstinstance as to how a diclosure made by a co-accused can be used as substantiveevidence against an accomplice. One can understand a discovery being made inpursuance of a confession made by an accused person as the confession ofthe accused to that extent is admissible Under the circumstances this willnot amount to a disclosure statement in law. This at the most is a piece ofinformation which the police has procured from the co-accused. In any casethe court is told both by PW7 aud PW8 as also PW2 that this statement ofkailash was recorded at the site of Delite Cinema soon after he was arrestedbut this is characterized as a lie by PW5 Constable Deep Dhand who hasstated that this statement of Kailash was recorded on 17/01/1985at 10. 30 AM. It is obvious therefore that if Deep Chand PW5 is speakingthe truth then the recovery made from the appellant is stage-managed becauseit could not then be recovered on the same night. If PW2, 7 and 8 are speakingthe truth then one fails to understand as to how Deep Chand was made tosign this statement even though he was not present on the spot. If theinvestigating Officer can falsify a document like this, it is anybody s guessthat he can go to any extent. ( 8 ) IN any case, it is admitted that while conducting search of theappellant no public man, nor even a neighbour was involved. It is difficultfor me to understand as to why it was so. Section 100 of Criminal Procedure Code makes itvery clear that in such searches two or more public witnesses must beassociated. A deliberate attempt is made to avoid the mandate of law. Thecourt would be justified in approaching the conduct of the prosecution withgreat deal of suspicion. ( 9 ) FURTHERMORE, in the present case the investigating officer also has notcomplied with the provisions of section 166 Criminal Procedure Code It is an admitted fact thatthe recoveries have been made within the jurisdiction of a different policestation. These are made by an officer who does not belong to the policestation where the appellant resides. ( 9 ) FURTHERMORE, in the present case the investigating officer also has notcomplied with the provisions of section 166 Criminal Procedure Code It is an admitted fact thatthe recoveries have been made within the jurisdiction of a different policestation. These are made by an officer who does not belong to the policestation where the appellant resides. In law investigating officer was boundto report the matter of seizure to the concerned police station. It has failedto make a record of the search in the books of that police station and hasfailed to inform the Magistrate about it. In the circumstances of this casesince the search was conducted within the jurisdiction of a police stationdifferent than the one in which the case was registered and was conducted bya police officer of the station where registration was done, the provisions ofsection 166 Criminal Procedure Code had to be followed. Non-compliance of this provision alsorenders the investigating as suspect. ( 10 ) THE case of the prosecution is that razor was actually used by Kailash. It is meaningless to recover if from the appellant Chaman Lal against whomno such allegation was made. The seizure of currency notes which are notidentifiable can in no way involve the appellant with the commission of crime. Under the circumstances of this case and the manner the investigating officerhas tried to reach the appellant and conduct search, the recovery of the slipex. PW6/a from the appellant cannot be trusted. I am, therefore, of the viewthat the case against the appellant is totally doubtful. It is surrounded bycircumstances which to my mind are absolutely suspicious. The search is indirect disregard of the provisions of law. I am, therefore, of the view thatthere is no case against the appellant, Chaman Lal. His appeal is allowedand conviction and sentence set aside and he is acquitted. ( 11 ) IN so far as the appellant Kailash in Cr. A. 103/86 is concerned,there has been no test identification parade of this man. All that the complainant had given in the F. I. R. was his description and it is nowhere statedthat he was known to him. No weapon of offence has been recovered fromhim. The fact, however, remains that the wrist watch of Ricoh makebelonging to the complainant has been recovered from his possession. All that the complainant had given in the F. I. R. was his description and it is nowhere statedthat he was known to him. No weapon of offence has been recovered fromhim. The fact, however, remains that the wrist watch of Ricoh makebelonging to the complainant has been recovered from his possession. Admittedly it is not owned by Kailash and the prosecution has led evidence to showthat this watch belongs to the complainant. It was, therefore for Kailashaccused to account for its possession and explain the same. He has failed todo so. He is, therefore, liable to be convicted under section 411 Indian Penal Code thoughthere is no case either under section 397 or section 392/34 Indian Penal Code made outagainst him. The conviction and sentence of appellant Kailash under sections397 and 392 Indian Penal Code are set aside. His appeal is dismissed with the modificationthat Kailash, appellant, is convicted under section 411 Indian Penal Code and is sentencedto undergo three years rigorous imprisonment. Against this three years period,he is entitled to get a set off of the detention period he has already sufferedeither as an under-trial or as a convict.