JUDGMENT - Smt. R.P. DESAI, J.:---These three appeals are directed against the judgment and order dated 11th June, 1984 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No. 409 of 1983 whereby the learned Additional Sessions Judge, Greater Bombay convicted the original accused No. 1 under section 392 read with section 34 of I.P.C. and sentenced him to undergo 3½ years R.I. Accused No. 1 was also convicted under section 394 read with section 34 of I.P.C. and was sentenced to undergo 5 years R.I. He was also convicted under section 392 read with section 397 read with section 34 of I.P.C. and was sentenced to undergo 7 years R.I. There was also conviction under section 3 read with section 25(1) of the Arms Act, 1959 for which he was sentenced to undergo 6 months R.I. All the substantive sentences were directed to run concurrently. The original accused No. 2 was convicted under section 392 read with section 34 of I.P.C. and was sentenced to undergo R.I. for 3½ years and was acquitted of the charge under section 392 read with section 397 read with section 34 I.P.C. Original accused No. 3 was convicted under section 392 read with section 34 I.P.C. He was also convicted under section 394 read with section 34 I.P.C. and was sentenced to undergo 5 years R.I. Both the above sentences were ordered to run concurrently. The said judgment and order of conviction is challenged before us. 2.At the trial, shortly stated the case of the prosecution was as under : The complainant Bhavanlal Devichand Shah is the resident of Malad. His younger brother Sumatilal is residing in the same building with his wife and children. 3.According to the prosecution, the complainant alongwith his brother Sumatilal used to go to Jhaveri Bazar, Bombay. They used to do the work of brokerage and get commission for selling unfinished and finished diamonds from various customers. About 12 years back he alongwith his brother Sumatilal and his friend Champaklal had opened an office in Prasad Chambers near Roxy Cinema, Bombay. They were doing the business of rough diamonds and exporting the same after polishing and finishing them. In the month of December, 1982 they closed the concern named and styled as "Shah Diamonds". Champaklal separated from them and since then the complainant alongwith his brother Sumatilal started export, import and brokerage business. They were doing the business of rough diamonds and exporting the same after polishing and finishing them. In the month of December, 1982 they closed the concern named and styled as "Shah Diamonds". Champaklal separated from them and since then the complainant alongwith his brother Sumatilal started export, import and brokerage business. The name of their company is "Shubha Diamonds". 4.The complainant with his brother used to go to Pydhoni, Opera House in order to obtain unfinished diamonds for sale and getting commission of it as well as for selling the finished diamonds to foreign customers. The complainant knows the taxi driver by name Habib Daud since last about four years. The taxi of Habib Daud used to be engaged by him to go to Opera House, Pydhonie for business purposes. They used to go in the morning at about 10.30 a.m. and used to return at about 6.30 p.m. to Malad. On 17th February, 1983 at about 10.15 a.m. the complainant alongwith his brother Sumatilal left their residence at Malad and engaged the taxi of Habib Daud bearing No. M.R.R. 5374. Habib Daud was driving the said taxi. The complainant had taken 3 pudis of polished diamonds with him in a bag and had kept that bag in a cotton bag having a chain. He had taken the amount of Rs. 14,000/- in order to purchase the diamonds. That amount was also kept in the leather bag with the diamond pudis. They reached Opera House and were in the Diamond Association Hall at Pancharatna building where they showed the finished diamonds to the customers. Sumatilal was with the complainant. The diamonds were not sold. They took 3 pudis of rough diamonds weighing about 625 carats from a party in order to show the rough diamonds to the buyers. They were in the hall till 6 p.m. in the evening. They had told Habib Daud to keep the taxi waiting near Opera House. At 6.30 p.m. they came down and sat at the rear seat of the taxi. Brother of the complainant, Sumatilal told him that they wanted to go to the residence of his brother Dineshbhai staying in Milind building, Opposite Tardeo Air Conditioned market as his grand mother had expired. Sumatilal had kept all the packets containing diamonds and cash in the leather bag and he had kept the leather bag in the cotton bag with chain. Sumatilal had kept all the packets containing diamonds and cash in the leather bag and he had kept the leather bag in the cotton bag with chain. He was carrying the same cotton bag in his hand. Sumatilal told the taxi driver to take the taxi to Air-conditioned market. He told the taxi driver to park the taxi in the lane near the signal facing towards east. Accordingly the taxi driver parked the taxi opposite the cycle shop in the lane. The complainant and Sumatilal went to the residence of Dinesh, waited for about 10 minutes there and returned to the taxi. They sat on the rear seat of the taxi. Habib Daud the taxi driver started going towards east and took turn towards left. While the taxi was proceeding towards Race-course the complainant noticed a blue coloured Ambassador car coming from behind. It was coming in a zig-zag manner. The complainant told his brother that the car driver might be transporting the illicit liquor. When the car went about 25' ahead the driver of the car stopped the car just in front of their taxi. The complainant, his brother and taxi driver saw four persons getting out from the Ambassador Car and coming towards their taxi. The said four persons came near the taxi and stood near the four doors separately. The complainant and his brother had put on the side glasses of the rear side door when they had started journey from Opera House. The person standing near the door of the driver threatened the taxi driver and asked him to open the door of his taxi. The taxi driver did not say anything. The said person started fisting the taxi driver on his face. The taxi driver got frightened. After the assault the said persons pointed out a small revolver towards the driver and asked the driver to open the door of the taxi and at the same time removed the ignition key from the switch of the taxi. The person who was standing by the side of the complainant's door had put his hands through the driver's side and wanted to open the door. The complainant had, therefore, put his hand on the handle in order to prevent him from opening the door. The person who was standing by the side of the complainant's door had put his hands through the driver's side and wanted to open the door. The complainant had, therefore, put his hand on the handle in order to prevent him from opening the door. The said person broke the glass of his door due to which the glass pieces hit the complainant's right side face and he received injuries. The complainant then asked that person as to why they were threatening and assaulting them. At the same time the person who was standing by the side of the left side front door of the taxi put his hand and opened the brother's side door and pointed out the revolver to him. The complainant's brother asked them as to what they were doing. The said person snatched the bag containing the cash and diamonds from the hands of the complainant's brother. Immediately after that they ran away towards the Ambassador car and decamped from there. The complainant noted the number of the Ambassador car as M.M.G.-5367. The wrist watches of Sumatilal and Habib Daud were also snatched away by the said persons while going away. The taxi driver then started the taxi with the help of the screw driver. They came to Tardeo Police Station and the F.I.R. of the complainant came to be lodged there and offence being C.R. No. 70/83 came to be recorded against the four unknown persons for robbery in respect of the diamonds, wrist watches and cash of Rs. 95,400/- by causing injuries to the complainant and taxi driver by means of fist blows and glass pieces and threatening the complainant and witnesses with the revolver under section 394 read with section 397 and with section 114 of I.P.C. and under section 25 of the Arms Act. 5.Investigation was set in motion on the basis of the said F.I.R. and after recording the statement of the complainant Bhavanlal and his brother Sumatilal on 18th February, 1983 the further investigation was handed over to P.I.M.G. Kulkarni as per the directions of senior P.I. On 2nd March, 1983 the case papers and the articles in this case were handed over to N.M. Joshi Marg Police Station for further investigation. P.S.I. Subhash Jadhav P.W. 16 who was attached to N.M. Joshi Marg Police Station from the year 1981 to June 1983 took over further investigation. P.S.I. Subhash Jadhav P.W. 16 who was attached to N.M. Joshi Marg Police Station from the year 1981 to June 1983 took over further investigation. While making investigation he alongwith his staff had gone to Madanpura area on 27th February, 1983, While returning from Madanpura and Nagpada area at about 8 or 8.15 p.m. while their jeep was approaching the junction of Dr. E. Moses Road and S.B. Marg he noticed one taxi coming from opposite direction. It stopped near the cemetery. Three unknown persons got down from the taxi. Since their behaviour appeared to him to be suspicious, he instructed his staff that they should keep watch on them. On seeing the police, two of them started running along Senapati Bapat Marg and one of them started running along Dr. E. Moses road. S.I. Jadhav instructed H.C. No. 4487 and three constables to chase those two persons who were running along Senapati Bapat Marg. He himself alongwith one constable chased the third person running along Dr. E. Moses Road. He caught the third person near Famous Studio. He is original accused No. 1. Head constable 4487 alongwith other three constables caught other two persons and brought them to the jeep. They were then taken to N.M. Joshi Marg Police Station. After reaching the police station, panchas were called and revolver which was in the hands of accused No. 1 was seized under panchanama. 6.On 28th February, 1983 in pursuance of the statement made by accused No. 3 police went to Malad (West). They were taken by accused No. 3 to Mukta Baug Shanti Nagar building first floor Room No. 17. In the said room one person by name Pankaj Jhaveri was present. At the instance of accused No. 3, Pankaj Jhaveri took out a packet from the cupboard and produced it before the police. There were polished diamonds in that packet. The same were taken charge of by the police under panchanama Ex. 15-A. 7.On 2nd March, 1983 in pursuance to another statement made by accused No. 3, police visited Mumbadevi Temple. There one person by name Janak Shah was standing near an Ambassador car. Accused No. 3 had a talk with him. Thereafter Janak produced white paper packet in which polished diamonds weighing 5 carats 68 cent were kept. The same were taken charge of under panchanama Ex. There one person by name Janak Shah was standing near an Ambassador car. Accused No. 3 had a talk with him. Thereafter Janak produced white paper packet in which polished diamonds weighing 5 carats 68 cent were kept. The same were taken charge of under panchanama Ex. 24-A. The investigation disclosed that one more accused was involved in this case. Therefore, S.I. Jadhav proceeded to Surat for further enquiries on 2nd March, 1983. However, the said person could not be traced. 8.Pursuant to the statement made by accused No. 2 on 9th March, 1983, the police visited Maharashtra Nagar, Borivli (West) near Prashant building garage No. 2. They noticed one person by name Kamlesh Shah in the said premises. Accused No. 2 had a talk with him. Thereafter Kamlesh produced four packets of unpolished diamonds of different weights. The same were taken charge of under panchanama Ex. 21-A. 9.On 9th March, 1983 S.E.M. Dhamapurkar P.W. 11 held identification parade. In that identification parade, the identifying witnesses identified accused Nos. 1 to 3. After the parade was over polished and unpolished diamonds recovered in the case were shown to Bhavanlal and Sumatilal and their further statements were recorded. 10.In pursuance to the statement made by accused No. 3 on 12th March, 1983, the police visited transit camp, Jogeshwari (West), Room No. 2127, building No. 107. One person by name Mohammed Sali was present. Accused No. 3 had a talk with him. Thereafter the said person took out one cotton cloth bag from the trunk which was kept in the corner of the room. There was one leather brown bag inside the same. On opening it, the police noticed cash of Rs. 6,000/- in Rs. 100/ denomination notes and other articles which were taken charge of by the police under panchanama Ex. 35-A. The cloth bag is Article 1, leather bag is Article 2 and Rs. 6,000/ are Article 6 collectively. This property was also shown to the complainant and his brother Sumatilal and, their further statements came to be recorded. On 14th March, 1983 the revolver was sent to Ballistic expert. The report of Ballistic expert dated 3rd May, 1983 was received in respect of the same . 10-A.After completion of the investigation, charge-sheet came to be filed in the Court of Metropolitan Magistrate, 7th Court, Dadar, against accused Nos. 1 to 3 and absconding accused Raju. On 14th March, 1983 the revolver was sent to Ballistic expert. The report of Ballistic expert dated 3rd May, 1983 was received in respect of the same . 10-A.After completion of the investigation, charge-sheet came to be filed in the Court of Metropolitan Magistrate, 7th Court, Dadar, against accused Nos. 1 to 3 and absconding accused Raju. On an application made by the complainant, polished and unpolished diamonds were handed over to the complainant upon his executing the usual bond. The case was committed to the Court of Sessions on 22nd July, 1983. Accused Nos. 1 to 3 were charged under section 392 read with 34 I.P.C. Accused Nos. 1 and 3 were charged under section 394 read with section 397 read with 34 I.P.C. and Accused No. 1 was charged under section 3 read with section 25(1) of the Arms Act, 1959. 11.In support of its case, prosecution examined as many as 16 witnesses. The defence of the accused was one of total denial. The accused did not claim the diamonds. However, accused No. 3 claimed the amount of Rs. 6,000/- as belonging to him. 12.After perusing the evidence adduced by the prosecution and upon consideration of the defence, the learned Sessions Judge, convicted the accused as stated in the first paragraph of this judgment. As stated above, it is the said judgment and order of conviction which is impugned in the present appeal. Shri Choudhary, Counsel for accused No. 1 is not present. However, with the assistance of the learned Additional Public Prosecutor and Miss Nevrekar Counsel for accused Nos. 2 and 3, we have gone through the entire evidence. It may be stated here that the Criminal Appeal No. 434 of 1984 is filed by original accused No. 3. Criminal Appeal No. 479 of 1984 is filed by original accused No. 2 and Criminal Appeal No. 625 of 1984 is filed by original accused No. 1. The evidence adduced by the prosecution against accused No. 1 is that of Bhavanlal P.W. 1 the complainant, his brother Sumatilal, P.W. 3, taxi driver Habib Daud P.W. 4, panch witness Vithal Ganpat Kanthe P.W. 12, Narhari Salvi P.W. 15 and Investigating Officer Subash Jadhav P.W. 16. There is also panchanama recording seizure of revolver Article 3 and bullets Article 7. There is also panchanama recording seizure of revolver Article 3 and bullets Article 7. 13.So far as accused No. 2 is concerned, the evidence is that of P.W. 1 complainant Bhavanlal, P.W. 3 Sumatilal, Taxi Driver Habib Daud P.W. 4, Chandrakant Laxman Padalekar P.W. 5, Kamlesh Surajmal Shah P.W. 6, Vithal Ganpat Kanthe P.W. 12, Head Constable Narhari G. Salvi P.W. 15, and Subhash Jadhav P.W. 16 and so far as accused No. 3 is concerned, there is evidence of P.W. 1 the complainant, P.W. 2 panch Gopal S. Gurav, P.W. 3 Sumatilal brother of the complainant, P.W. 4 Habib Daud, P.W. 6 Kamlesh, P.W. 7 Satish, P.W. 8 Janak N. Shah, panch witness Ramdas P.W. 13, Narhari Salvi P.W. 15 and S.I. Jadhav P.W. 16. So far as accused Nos. 2 and 3 are concerned, there is panchanama of recovery of diamonds at their instance. In the identification parade held on 9th March, 1983 all the three accused were identified by identifying witness as the persons involved in the incident in question. Miss Nervekar basically attacked the evidence of the identification parade. According to her, identification parade was held in flagrant violation of the High Court Criminal Manual and as such no reliance can be placed on the same. She placed reliance upon the judgment of this Court in (Ramchandra Budhiram Gupta v. State of Maharashtra)1, : 1996(1) Bom.C.R., 1995 Cri. L.J. 4048 where this Court has held that little value can be given to the identification parade held in breach of the provisions contained in Criminal Manual of the High Court. According to her, there was a breach of Rule 16(b) of the High Court Criminal Manual which provides that not more than two suspects at time should be put for identification in one parade. Admittedly, in the instant case all the accused were put in one identification parade by the police. It was in the similar facts and circumstances that this Court in the judgment referred to hereinabove has held that such an identification parade cannot be relied upon. According to Miss Nervekar the ratio of the said judgment applies to the facts of the present case. It was in the similar facts and circumstances that this Court in the judgment referred to hereinabove has held that such an identification parade cannot be relied upon. According to Miss Nervekar the ratio of the said judgment applies to the facts of the present case. She also drew our attention to a judgment of this Court in (Sanjay Dagdu Jadhav v. The State of Maharashtra)2, 1997 All Maharashtra (Cri.) 197 where this Court has held that instructions contained in the Criminal Manual are to be strictly followed and in case of failure to do so, evidence of the identification parade cannot be accepted. She, therefore, contended that the learned Additional Sessions Judge fell into a serious error when he accepted the evidence of the identification parade when the identification parade was held in breach of the guidelines contained in the High Court Criminal Manual. Apart from this Miss Nervekar contended that the diamonds allegedly recovered at the instance of accused Nos. 2 and 3 have not been properly seized. According to her, the proper procedure was not followed while seizing the said diamonds. She stated that neither the panchas have stated that any sealing was done nor is this fact evident from the relevant panchanama. In the circumstances, she contended that it cannot be concluded that diamonds involved in the present crime were recovered at the instance of accused Nos. 2 and 3. Miss Nervekar went to the extent of contending that the discovery at the instance of accused are got up discoveries and deserve to be discarded by this Court. She also contended that the story of the prosecution that accused No. 3 broke the glass of taxi appears to be inherently improbable in as much there is no evidence of any injury on accused No. 3. She, therefore, urged that the order of conviction and sentence be set aside. 14.As against this Shri Borulkar the learned A.P.P. contended that no interference is called for with the impugned judgment and order of conviction which, according to him, is well reasoned. He stated that assuming that the evidence of identification parade is left out of consideration, there was sufficient other evidence on record to indicate the complicity of accused in the crime with which they are charged. He stated that assuming that the evidence of identification parade is left out of consideration, there was sufficient other evidence on record to indicate the complicity of accused in the crime with which they are charged. He stated that there is a discovery at the instance of accused No. 3 which is borne out by the evidence of panchas and panchanama dated 28th February, 1983. He stated that P.W. 5 Chandrakant had supported the prosecution in respect of this discovery. According to him, there is also another discovery of diamonds at the instance of accused No. 3 which is supported by P.W. 7 panch witness Satish Shah, P.W. 8 Janak Shah to whom the diamonds were sold by accused has supported the prosecution and identified the diamonds. Shri Borulkar stated that discovery of the diamonds at the instance of accused No. 2 is also proved by evidence of panch and P.W. 9 Pankaj Jhaveri from whom diamonds were recovered. So far as accused No. 1 is concerned, revolver was recovered from him on 27th February, 1983. He contended that it is significant to note that accused have not claimed the diamonds in their 313 statements. The diamonds have been identified by persons from whom they were recovered and the complainant and his brother. Therefore, discovery of diamonds cannot be faulted. He, therefore, contended that the impugned judgment and order of conviction and sentence be confirmed. 15.We have given our anxious consideration to the submissions advanced by both sides. It cannot be denied that basically the evidence against the accused is that of identification in the identification parade, for their identification in the Court will have otherwise little value. It is also an admitted position evident from the evidence of the Investigating Officer that all the three accused were put up in the same identification parade for identification. After having gone through the two judgments of this Court which were cited before us, we find it difficult to place any reliance on the evidence of the identification parade. In view of these two judgments, it is not open to the prosecution to contend that breach of guidelines of the High Court Criminal Manual is merely an irregularity. After having gone through the two judgments of this Court which were cited before us, we find it difficult to place any reliance on the evidence of the identification parade. In view of these two judgments, it is not open to the prosecution to contend that breach of guidelines of the High Court Criminal Manual is merely an irregularity. In the case of Sanjay Dagdu Jadhav v. The State of Maharashtra, 1997 All M.R. (Cri.) 197 the Division Bench of this Court consisting of Ashok Agarwal and T.K. Chandrashekhara Das, JJ., has, by following the judgment in the case of (Vilas Vasantrao Patil v. State of Maharashtra)3, 1996 Cri.Law Journal 1854 held that instructions contained in the Criminal Manual issued by the High Court for conducting identification parade are not statutory but have been consistently followed to ensure a fair and unassailable identification parade. It is also observed that unless guidelines issued by the manual are scrupulously followed, there is likelihood of committing serious errors. The error is not that real accused will escape, but there will be real risk of implicating the innocent person. We are also informed that apart from this judgment there is yet one more judgment i.e. (Ganesh Bhagwati Pandian v. State of Maharashtra)4,1985(1) Criminal Law Journal 191 where a similar view has been taken by this Court. In the light of these judgments, it must be held that the identification of the accused in the identification parade cannot be relied upon. If the identification of the accused in the identification parade is rejected then what remains is the alleged discovery of diamonds at their instance, their identification by the complainant and the persons from whom they were recovered. We find much force in the arguments of the learned Counsel Miss Nervekar for the appellants/accused that there is no indication forthcoming from the evidence on record that while seizing the diamonds proper procedure was followed. It is not mentioned in the panchanama that sealing was done nor is so stated by any of the panch witnesses. Even the Investigating Officer has not stated that the seizure was done after following the proper procedure. It is also significant to note that no description of the property was given at any stage before giving evidence by P.W. 1 Bhavanlal and P.W. 3 Sumatilal. Even the Investigating Officer has not stated that the seizure was done after following the proper procedure. It is also significant to note that no description of the property was given at any stage before giving evidence by P.W. 1 Bhavanlal and P.W. 3 Sumatilal. The learned Sessions Judge has observed that when the property was discovered it was in three packets. When it was again tendered in Court, the unpolished diamonds were found in one packet and polished diamonds were in 3 different packets. The learned Sessions Judge has observed that the identity of the property was not maintained and preserved by the complainant when he took back the property on bond and, therefore, the identification of the property has become difficult. We are, therefore, unable to place reliance on the evidence as regards the said discoveries allegedly made at the instance of the accused. Since, we have come to the conclusion that identity of the accused cannot be established, their conviction under section 392 read with section 34 appears to us to be unsustainable as they can not be properly connected with the said crime. So also the conviction of accused Nos. 1 and 3 under section 394 read with section 34 of I.P.C. cannot be sustained. Conviction of accused No. 1 under section 392 read with section 397 read with section 34 is set aside. We are, however, of the opinion that the conviction of the accused under section 3 read with section 25(1) of the Arms Act, 1959 will have to be confirmed. He was caught red handed with a revolver by S.I. Jadhav (P.W. 16) on 27th February, 1983 near the junction of Dr. E. Moses Road and Senpati Bapat Marg. Panchanama Ex. 33 mentions that weapon Article 3 was seized from accused No. 1. The evidence of H.C. 4487 (P.W. 15) supports the fact that accused No. 1 was caught red handed. Therefore, his conviction under section 3 read with section 25(1) of the Arms Act deserves to be confirmed and is hereby confirmed. 16.In the result Criminal Appeal No. 625 of 1984 filed by Vijay Kumar Anurudh Mishra (accused No. 1) is partly allowed and partly dismissed. Therefore, his conviction under section 3 read with section 25(1) of the Arms Act deserves to be confirmed and is hereby confirmed. 16.In the result Criminal Appeal No. 625 of 1984 filed by Vijay Kumar Anurudh Mishra (accused No. 1) is partly allowed and partly dismissed. The conviction and sentence of Vijay Kumar Anurudh Mishra (accused No. 1) under section 392 read with section 34 I.P.C., under section 394 read with section 34 I.P.C. and under section 392 read with section 397 read with section 34 I.P.C. is set aside. His conviction under section 3 read with section 25(1) of the Arms Act, 1959 is confirmed. However, the order sentencing him to undergo 6 months R.I. on that count is set aside. For offence under section 3 read with section 25(1) of the Arms Act, 1959 he is sentenced to the period already undergone. Criminal Appeal No. 479 of 1984 filed by Mohammed Ayub Mohammed Ali Ansari (original accused No. 2) is allowed. His conviction and sentence under section 392 read with section 34 of I.P.C. is set aside. Criminal Appeal No. 433 of 1984 filed by Mohammed Harshad Shaukatali @ Ballu (original accused No. 3) is allowed. His conviction and sentence under section 392 read with section 34 I.P.C. and under section 394 read with section 34 I.P.C. is set aside. Appeal allowed.