JUDGMENT - MAJITHIA G.R., J.:---Vilas Vasantrao Patil, the appellant-original accused No. 1 (hereinafter referred to as “the original accused No. 1”), has challenged his conviction and sentence recorded in Sessions Case No. 933 of 1991 by Additional Sessions Judge, Greater Bombay, vide judgment and order dated December 10, 1993. He was convicted under section 392 read with section 34, Indian Penal Code and sentenced to undergo R. I. for 5 years. He was also convicted under section 397 read with section 392, Indian Penal Code and sentenced to undergo R.I. for 7 years. He was further convicted under section 4 read with section 27 of the Arms Act and sentenced to undergo R.I. for one month. He was also convicted under section 414 read with section 34, Indian Penal Code and sentenced to undergo R.I. for 6 months. All the sentences were ordered to run concurrently. 2. The original accused No. 1, Sharmaraj Pandian Nadar - original accused No. 2, Santosh Babu Shetty - original accused No. 3, and Ashok Rajaram Wadekar - original accused No. 4, were charged under section 395 in the alternative under section 392 read with section 34 of the Indian Penal Code. Original accused Nos. 1 and 2 were separately charged under section 397 read with section 395, Indian Penal Code for having been armed with swords while committing robbery. Original accused Nos. 1 and 2 were also charged under section 4 read with section 27 of the Arms Act. Additional charge was also framed against original accused Nos. 1, 3 and 4 under section 414 read with section 34, Indian Penal Code for having concealed property acquired under robbery. 3. Original accused No. 1 was convicted and sentenced as stated supra. All the sentences imposed upon him in this case and in the connected cases were ordered to run concurrently. He was allowed the set-off for the period from July 10, 1991 to December 9, 1993 for his detention as an under-trial. Original accused Nos. 3 and 4 were convicted under section 392 read with section 34 and under section 414 read with section 34 of the Indian Penal Code and each was sentenced to undergo R.I. for one year and R.I. for six months, respectively. All the sentences imposed upon them in this case and in the connected cases were ordered to run concurrently. 3 and 4 were convicted under section 392 read with section 34 and under section 414 read with section 34 of the Indian Penal Code and each was sentenced to undergo R.I. for one year and R.I. for six months, respectively. All the sentences imposed upon them in this case and in the connected cases were ordered to run concurrently. They were allowed the set-off for the period from July 12, 1991 to October 13, 1993 and from July 12, 1991 to December 9, 1993, respectively, for their detention as under-trials. Consequently, they had undergone the sentences imposed on them. Original accused No. 2 was convicted under section 392 read with section 34, under section 397 read with section 392 of the Indian Penal Code and under section 4 read with section 27 of the Arms Act and was sentenced to undergo R.I. for 5 years, R.I. for 7 years and R.I. for one month, respectively. All the sentences imposed upon him in this case and in the connected cases were ordered to run concurrently. He was allowed the set-off for the period from July 10, 1991 to September 16, 1993 for his detention as an under-trial. He challenged his conviction and sentence in this Court in Criminal Appeal No. 49 of 1994. During the pendency of the appeal he expired and the appeal stood abated. The appeal filed by him was rendered infructuous as a result of his death and was disposed of as such. 4. The prosecution story is unfolded by PW 4-Bhagwan Narayan More. He lodged the F.I.R. at Bhandup Police Station on July 22, 1991 at 5.30 p.m. and the same was registered at C.R. No. 352/1991. He stated in his complaint that he along with his family was residing at Ramdhan Chawl, Sharma Niwas, Jangal Mangal Road, Bhandup (West), Bombay for the last 17 years. He was working in Hindustan Hosiery Mills Company in its socks knitting department at Lalbag, Kala Chowkie Marg on temporary basis for the last 7 months. On the date of the incident, namely, July 9, 1991, he was working in the second shift which was from 3.30 p.m. to 12 midnight. On that day, he reported for duty in the second shift at 3.30 p.m. and after the duty hours he left for his residence. On the date of the incident, namely, July 9, 1991, he was working in the second shift which was from 3.30 p.m. to 12 midnight. On that day, he reported for duty in the second shift at 3.30 p.m. and after the duty hours he left for his residence. He boarded a local train and alighted at Bhandup Railway Station at about 1.20 a.m. on July 10, 1991. After alighting from the local train, he passed through Tank Road from where he took a short cut for passing through Madhu Hospital and when he was crossing the road, which is touching the Jangal Mangal Road, one rickshaw (number not known), in which four persons were sitting, came and went ahead and stopped at some distance. Two persons from both sides got down. They were armed with swords. One of them was Sharmaraj Nadar (original accused No. 2) who was residing in Room No. 6 in Gurkha Chawl which is next to the chawl in which the complainant resides. The complainant identified him in the illuminated street light. Sharmaraj Nadar came to him along with his associates, abused him and asked him to take out whatever goods, articles he had; otherwise he will be killed. After saying so, they searched his person and original accused No. 2 Sharmaraj Nadar forcibly took out the wrist watch of Citizen make. While the incident was occurring, two persons were sitting in the rickshaw. One of them having a beard, was sitting near the driver's seat and the other person was sitting on the rear seat. The latter was slightly fat and fair in complexion. They also came towards the complainant and the fatty person shouted “Sale” (an abuse) “do not shout, leave this place quietly, otherwise, we will kill you”. Saying this, he asked the complainant to go away from the said place. At that time the complainant noticed 1/2 persons coming from the direction of Gurkha Chawl and he went in that direction. Thereafter all the abovesaid persons got into the rickshaw and sped away immediately towards Bhatti Pada direction. On enquiry by those two persons who came from the direction of Gurkha Chawl, the complainant narrated to them the incident. They told him that the boy (culprit) was from their side (vicinity) and asked him to go to his house in the morning and make enquiries from him. On enquiry by those two persons who came from the direction of Gurkha Chawl, the complainant narrated to them the incident. They told him that the boy (culprit) was from their side (vicinity) and asked him to go to his house in the morning and make enquiries from him. He did not lodge the complaint against him under fear that he would harass him in future as he was a man of bad vices. PW 4 gave the descriptions of the three associates of original accused No. 2 as follows :--- “(i) The person who was armed with sword and was along with Sharmaraj, wearing blackish-chocolate colour shirt on his person, his age was about 27 years, medium built, height similar to that of Sharmaraj. (ii) The person who was sitting in front seat was slightly bearded person, wearing blackish blue colour shirt, age 22 years, medium built, height 5' 6”. (iii) The person who was sitting on the rear seat in rickshaw, slightly fatty and age about 26 years, wearing white shirt of Lapning.” PW 4 also gave the description of the stolen wrist watch. Investigation was conducted by PSI Liyakat Nadaf (PW 5). The wrist watch, which was already recovered, was identified by PW 4 and under the order of the Magistrate, it was handed over to him. PW 5 also arranged for identification parade and the same was conducted by P.W. 3-Vijay Vasant Tawade, Special Executive Magistrate. P.W. 4 is stated to have identified the four accused in the identification parade. 5. After completion of the investigation, charge sheet was filed in the Court of the Metropolitan Magistrate, who committed the case to the Court of Session, Greater Bombay, as some of the offences are exclusively triable by the latter. 6. Original accused No. 1 and his associates were involved in six criminal cases of robbery and dacoity. Original accused No. 1 has challenged his conviction and sentence recorded in Sessions Cases Nos. 933/91, 932/91 and 935/91 in this Court in three criminal appeals. This appeal pertains to his conviction and sentence in Sessions Case No. 933/91. 7. P.W. 4 - Bhagwan Narayan More is the complainant who lodged the F.I.R. In his examination-in-chief he has narrated the incident and has also given the description of the accused involved in the crime. 933/91, 932/91 and 935/91 in this Court in three criminal appeals. This appeal pertains to his conviction and sentence in Sessions Case No. 933/91. 7. P.W. 4 - Bhagwan Narayan More is the complainant who lodged the F.I.R. In his examination-in-chief he has narrated the incident and has also given the description of the accused involved in the crime. He stated that original accused No. 2 had grown long hair hanging at the back of his head. The associate of original accused No. 2 armed with a sword was wearing a red shirt and was slightly taller than original accused No. 2 and thinner in built than him. The third person who later got out of the auto-rickshaw was slightly taller than original accused No. 2 and the other person with sword had fair complexion, thin built and was wearing a chocolate coloured shirt. The person who continued to sit in the rickshaw was wearing a white shirt with lines. He further stated that the boys who had met him after the incident had asked him to forget about the lost wrist watch as he was lucky not to have been beaten and injured. They had assured him that they would tell about the incident to the parents of original accused No. 2. He went to the house of the parents of original accused No. 2 next morning but they requested him not to lodge complaint with the police and that when original accused No. 2 returned, they would get him his wrist watch. He further stated that 4/5 days after the incident, he learned that original accused No. 2 and his associates were arrested by the police. He went to the police station and made enquiries. He was advised to contact SI Nadaf. SI Nadaf recorded his complaint as narrated by him. His signatures were obtained at 3 different places. He was advised to come to the police station the following day. He accordingly went to the police station and identified the swords which were wielded by original accused No. 2 and his associate when they had threatened him to hand over the valuables. (These swords were already seized in Sessions Case No. 931/91). He was also shown the recovered articles and out of those he located his wrist watch. P.W. 4 further stated that a few days thereafter he was called to Bhandup Police Station in the morning. (These swords were already seized in Sessions Case No. 931/91). He was also shown the recovered articles and out of those he located his wrist watch. P.W. 4 further stated that a few days thereafter he was called to Bhandup Police Station in the morning. He was asked to sit in a room at the police station. He was all by himself. A panch came in that room and led him to another room; that room was having its windows and door shut. There were 10 to 12 persons standing in a line inside that closed room. Apart from those 12 persons, Tawade Saheb was sitting in the room. After he entered the room, Tawade Saheb asked him to identity the robbers who had robbed his wrist watch in the night of July 10, 1991 at 1.45 a.m. He identified original accused No. 2 and the other person armed with a sword, out of the 12 persons standing in that line. After the identification, he was told to go back and sit in the room from where he was called. After 10-15 minutes, a panch again led him to the closed room and Tawade Saheb asked him the same question and out of the 12 persons, he identified the other two associates of original accused No. 2. 8. The description of the associates of original accused No. 2 as given by him in examination-in-chief is entirely different than the one got recorded in the F.I.R. The reason for the delayed lodging of the F.I.R. as given in the First Information Report is also different than the one stated by him at the trial. In the F.I.R. he had stated that he did not lodge the complaint out of fear of harassment at the hands of original accused No. 2 as he was a bad character. In his statement at the trial, he has stated that he was requested by the parents of original accused No. 2 not to lodge a complaint and had assured return of the wrist watch to him. He admitted that after the assurance was given by the mother of original accused No. 2, he did not go to her for demanding the wrist watch. The fact of his having met the mother of original accused No. 2 and the assurance given by her was not disclosed to the police. He admitted that after the assurance was given by the mother of original accused No. 2, he did not go to her for demanding the wrist watch. The fact of his having met the mother of original accused No. 2 and the assurance given by her was not disclosed to the police. The incident allegedly had taken place on the night intervening July 9 and July 10, 1991 but the First Information Report was lodged on July 22, 1991 although he had learned 4-5 days after the incident that original accused No. 2 and his associates had been arrested. 9. Regarding identification, PW 4 has stated that he was called twice to the room where the identification parade was held. On both these occasions, he identified the accused in a group of two each. He further admitted that the identification parade was conducted in a room at the police station and that room was in the rear portion of the police station which was on the side of the temple. The lock-up was on the other side of the road from the room in which he was sitting. From the lock-up, if a person wants to come to the room where the identification parade was conducted, he has to pass by the temple and next to the temple there was a room in which the witness was made to sit and the room where the identification parade was held, was beyond it. The witness was made to identify all the four accused out of the same set of dummies. The dummies were not changed when the identification of the four accused was made in a group of two each. The witness did not state that when the accused were brought to the room where the identification parade was held, their faces were covered and that he had no occasion to see them either before the identification parade or when they were being brought from the lock-up to the room where the identification parade was held. 10. Identification parade was held by PW 3-Vijay Vasant Tawade. In examination-in-chief he stated that he had selected 11 dummies similar in appearance and height to the four accused in respect of whom the parade was to be held. He had ensured that the shutters of the windows and doors were closed and curtains were drawn on them. 10. Identification parade was held by PW 3-Vijay Vasant Tawade. In examination-in-chief he stated that he had selected 11 dummies similar in appearance and height to the four accused in respect of whom the parade was to be held. He had ensured that the shutters of the windows and doors were closed and curtains were drawn on them. The dummies were made to stand in a line. The witness who was to identify them was sitting in an adjoining room. He was sent for through a panch witness. The complainant, in the first instance, identified original accused Nos. 2 and 3 and on the second occasion he identified original accused Nos. 1 and 4. This witness admitted in cross-examination that he did not record the particulars, viz., appearance, height, complexion of the dummies chosen for the identification parade. He knew that it was important that the selected dummies must almost have similar appearance, viz. height, complexion, clothes, as that of the accused who were to be identified but he did not record the particulars of the dummies in the memorandum of identification parade. He further admitted that he did not change the dummies in respect of the different sets of accused. He further admitted that he had given instructions to the panch witness to bring the accused from the lock-up to the room where identification parade was held with covered faces but he did not say that when the accused were brought in the room, their faces were covered. He further admitted that after the accused were taken out from the lock-up, they were first taken towards the temple and from there to the corner of the canteen and then to the parade room. He admitted that the accused were taken through the gap between the temple and the canteen. 11. This Court has issued instructions for conducting identification parades and these are contained in the Criminal Manual issued by this Court for the guidance of the Criminal Courts and Officers subordinate to it. Paras 16(3)(i) to (xxii) of Chapter I contain the procedure for holding identification parades. It is stipulated therein that the Executive Magistrate must first acquaint himself, very briefly, with the facts of the case and find out who is to be put in the identification parade and who are the witnesses to be called up for identification. Paras 16(3)(i) to (xxii) of Chapter I contain the procedure for holding identification parades. It is stipulated therein that the Executive Magistrate must first acquaint himself, very briefly, with the facts of the case and find out who is to be put in the identification parade and who are the witnesses to be called up for identification. Two independent respectable persons should be associated with the identification parade. The identification parade should be arranged in a room or place which is such that the identifying witnesses, as well as the persons connected with the police, should not be able to look into it. If there is one accused person to be identified, there should be at least half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single parade. The police officers and/or constables should be asked to withdraw themselves from the room or place where identification parade is being held. After the parade is arranged, one of the two respectable persons should be sent up to bring the accused from the lock-up. Care has to be taken to see that when the accused being brought from the lock-up, the identifying witnesses do not have an opportunity of seeing them. They should be kept in quite a different room, out of sight of the lock-up. After doing so, the Executive Magistrate should commence writing the memorandum. It should include the place, date and time at which the identification parade commenced; the names, ages, occupations and full addresses of the two respectable persons; the names and the approximate ages of the persons standing in the parade, mentioning clearly, one below the other, in numerical order their positions in the parade; the fact that no persons other than those in the parade and the two respectable persons were allowed to remain in the room and that all the police officers and constables were asked to go out; and that a particular respectable person fetched the accused from the lock-up and that the identifying witnesses were in a different room and they could not see the accused while being brought from the lock-up to the identification room. When the accused is brought, the Executive Magistrate should ask him to take whatever place he likes in the parade and such place must be mentioned in the memorandum. The accused should then be asked if he wants to make any alteration in his dress. He should be allowed to put on or remove a cap or coat. This fact has to be noted in the memorandum. If he does not wish to change his dress, this fact too should be noted in the memorandum. Thereafter one of the respectable persons should be asked to fetch the first identifying witness. When the witness arrives, the Executive Magistrate should question him and ascertain from him whether he had an opportunity to see the culprit at any time subsequent to the offence or after the arrest. He may either record the statement separately or make a reference to that statement in the memorandum. The witness should then be asked to view the parade carefully and see whether he would be able to identify the person who had robbed him. If he identifies any person, he should be asked to go forward and touch that person. The fact that the identifying witness identified the accused has to be recorded in the memorandum. After the identifying witness leaves the room, the accused has to be asked again whether he wants to change his place in the parade or change his dress. If he changes his place or declines to do so, this fact should be noted in the memorandum. Similarly, if he changes his dress or declines to do so, this fact also should be noted in the memorandum. One of the respectable persons has then to be asked to bring the second identifying witness and the same procedure has to be followed for each subsequent witness. After the memorandum is completed, the Executive Magistrate shall make an endorsement as envisaged in Para 16(3)(xvi). These instructions are not statutory but have been consistently followed to ensure a fair and unassailable identification parade. 12. Reverting back to the evidence brought on record, the following facts emerge: (i) The independent respectable persons who were allegedly associated with the identification parade were not examined at the trial. (ii) P.W. 3 did not ensure that when the accused were being brought from the lock-up, the identifying witnesses did not have an opportunity of seeing them. 12. Reverting back to the evidence brought on record, the following facts emerge: (i) The independent respectable persons who were allegedly associated with the identification parade were not examined at the trial. (ii) P.W. 3 did not ensure that when the accused were being brought from the lock-up, the identifying witnesses did not have an opportunity of seeing them. (iii) The parade was not arranged in a room or place which was such that the identifying witnesses as well as the persons connected with the police were not able to look into. (iv) P.W. 3 did not arrange for different sets of dummies for the purpose of identification of two sets of accused persons. (v) P.W. 3 admitted that after the accused were taken out from the lock-up, they were taken towards the temple and from there to the corner of the canteen and then towards the parade room. He did not say that he had ensured that when the accused were being brought in the parade room, the identifying witnesses had no opportunity of seeing them. P.W. 3 also admitted that constables accompanied the accused when they were brought from the lock-up upto the outside door of the parade room, meaning thereby that constables were present near the parade room or at least they were close by and had access to the parade room. (vi) After P.W. 4 had participated in the identification parade, his further statement was recorded by the police. 13. The evidence of P.W.s 3 and 4 reveals that the identification parade was held in breach of the instructions issued by this Court. This Court in (Ramcharan B. Gupta v. The State of Maharashtra)1, 1996(1) Bom.C.R. 190 , has held thus:- “15. It is well settled that the evidence of identification can only be relied upon if all the chances of the suspects being shown to the witnesses prior to their test identification are eliminated. To ensure that firstly, the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in jail, the faces of suspects were kept veiled and no one had the opportunity to see them. This has not been done in the instant case. No link evidence has been adduced by the prosecution to prove this fact. This has not been done in the instant case. No link evidence has been adduced by the prosecution to prove this fact. Since the burden of showing that right from arrest till being lodged in jail, the faces of the suspects were throughout kept veiled was on the prosecution and as it has failed to discharge this burden the evidence of identification is rendered worthless in the instant case. We are reinforced in our view by the decision reported in A.I.R. 1961 Allahabad 153, (Asharfi and another v. The State)2, wherein in paragraph 35, James, J. spoke for the Division Bench, thus 'it is the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail, precautions were taken to ensure that he was not seen by any outsider.' Secondly, a perusal of the evidence of PW 6 Mr. Shetty, the Executive Magistrate who conducted the identification of the appellants, shows that when on 12-11-1986, he visited police station Vakola in connection with conducting the identification parade, he found that the appellants were confined in a lock up room and that the identifying witness, who was a lady, Mrs. Theresa Hill, was already sitting in the police station. In such a situation, there was a reasonable possibility of Mrs. Theresa Hill seeing the appellants prior to the identification parade. In our view, this alone is sufficient to discard the identification evidence against the appellants. In A.I.R. 1961 Allahabad 153, Asharfi and another vs. The State, supra, the Court observed in paragraph 35 that the plea of shown does not require to be affirmatively established; it is sufficient if the accused can create a reasonable doubt in the mind of the Court. 'Direct evidence may not be available but he may discharge his burden by showing, for example that he and the witnesses were present in the police station, at the same time.' In our view, the aforesaid observations are tailor-made for this case.” The identification evidence in the instant case cannot be accepted. This was the solitary evidence on which the original accused No. 1 was identified as the person having taken part in the robbery. This was the solitary evidence on which the original accused No. 1 was identified as the person having taken part in the robbery. If this evidence is ignored, there is no other evidence on record to prove the participation of the accused in the crime in so far as it relates to the offences under sections 392, 395 and 397, Indian Penal Code. Learned Counsel for the State did not refer to any other evidence on record to substantiate the conviction of the appellant-accused for these offences. 14. Section 4 of the Arms Act says that the Central Government may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon, no person shall acquire, have in his possession or carry in that area arms of such class or specification as specified in that notification. Section 2(c) of the Act defines the term 'arms' which term means and includes a sharp-edged weapon. A sword is a weapon of that kind. The prosecution did not lead any evidence that a notification had been issued by the Central Government as provided for in section 4 of the Arms Act prohibiting possession or carrying of arms in the area where the offence was committed. Unless the notification is issued, the possession or carrying of arms is not prohibited. There is no proof on the file that with reference to the area where the offence was committed a notification under section 4 of the Arms Act was issued. Consequently, the conviction of original accused No. 1 under section 4 read with section 27 of the Arms Act cannot be sustained. 15. Learned Counsel for the State pointed out that the valuables robbed from the complainant were found in the possession of the accused and pursuant to the statements made by them, those valuables were got recovered. Original accused No. 1, at best, can be held guilty of concealing stolen property and for that he has been convicted under section 414 r/w. section 34 of the Indian Penal Code and sentenced to undergo R.I. for 6 months. His conviction and sentence on that count are upheld. 16. Original accused No. 1, at best, can be held guilty of concealing stolen property and for that he has been convicted under section 414 r/w. section 34 of the Indian Penal Code and sentenced to undergo R.I. for 6 months. His conviction and sentence on that count are upheld. 16. For the reasons stated above, the appeal is partly allowed and the following order is passed :-- (i) The conviction of the appellant-original accused No. 1 and the sentence imposed upon him under section 392 read with section 34, under section 397 read with section 392 of the Indian Penal Code and under section 4 read with section 27 of the Arms Act are set aside. (ii) The conviction of the appellant-original accused No. 1 under section 414 read with section 34 of the Indian Penal Code and the sentence of R.I. for 6 months are upheld. (iii) It is stated at the Bar that the appellant-original accused No. 1 has already undergone more than 4 years of imprisonment. If it is so, he shall be released from the jail forthwith if not required in connection with any other case. 17. Before we part with this judgment, we are pleased to observe that Mr. S. R. Borulkar who appeared for the State rendered us valuable assistance. He was fair and forthright in assisting us. His able assistance enable us to reach the correct conclusion. Appeal partly allowed. -----