JUDGMENT 1. - Instant appeals have been filed by the accused-appellants impugning the judgment dated March 31, 1997 of the learned Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City, whereby each of the accused-appellant was convicted and sentenced in Sessions Case No. 40/1997 under Section 395, Indian Procedure Code to suffer 10 years rigorous imprisonment and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo six months rigorous imprisonment. 2. Brief resume of the facts is that in the intervening night of May 8 and May 9,1994 when Vish was Jain and his wife Renu Jain were sleeping in their house No. E-12, Mauji Colony, Malviya Nagar, Jaipur, five persons entered the house and tied their servant Chaturbhaj who was sleeping in the basement. Thereafter the unknown miscreants also tied the mouths, hands and legs of Vishwas Jain and Renu Jain and bolted them inside the bathroom and after threatening them with pistol and knife committed dacoity of gold and silver ornaments, coins and cash. The miscreants remained in the house for about an hour. Vishwas Jain managed to come out of the bathroom through a window and communicated telephonic message of the incident to the Police Station, Malviya Nagar. When police reached at the place of incident a report Ex. P-1 was lodged by Vish was Jain and criminal case under Section 395, Indian Procedure Code was registered and investigation commenced. After completion of investigation the police laid charge-sheet and the case was committed to the Court of Sessions Judge from where it was transferred to the Court of Special Judge. 3. Charge under Section 395, Indian Procedure Code was framed, the accused pleaded not guilty and aimed trial. The prosecution examined, as many as 15 witnesses and exhibited 28 documents. Statements of the accused under Section 313, Cr.P.C. were recorded and the learned Special Judge after hearing the arguments convicted and sentenced the accused as indicated above. 4. As a first limb of his argument, the learned defence Counsel vociforcely contended that the findings arrived at by the Trial Court are patently erroneous to the facts on record which constituted a false case against the accused and that apart the Trial Court failed to appreciate various lacunas existed in the prosecution testimony. 4. As a first limb of his argument, the learned defence Counsel vociforcely contended that the findings arrived at by the Trial Court are patently erroneous to the facts on record which constituted a false case against the accused and that apart the Trial Court failed to appreciate various lacunas existed in the prosecution testimony. Second plank of his attack is that the accused were taken in custody on May 27, 1994 and were shown to the witnesses which is evident from the statement of Smt. Renu Jain (PW 10) who deposed that her husband Vishwasa in had seen the accused at Vidhayak Puri Police Station. Arrest of accused persons was shown from Vidhayak Puri Police Station where they were arrested in some other case. Govind Dheta the Investigating Officer (PW 15) admitted this fact. The identification parade was conducted on June 15,1994 i.e. after about 20 days of the arrest of the accused and no explanation was offered for this delay. Identification Parade Chart (Ex. P.5) goes to show that the persons having smallpox marks on face and white marks on forehead were not mixed up while conducting identification parade. Arrest memo of accused Babul shows that he had smallpox on his face. Similarly accused jalal had white mark on his fore-head. Thus no conviction case be based on such farce identification. Identification parade of accused Mohd. Ansar was not conducted and he was identified for the first time in Court without being tested by a prior test identification parade is valueless. Reliance was placed on State of Delhi Administration v. V.C. Shukla, AIR 1980 SC 1382 . 5. The learned defence Counsel then added by contending that recovery of ornaments and coins alleged to have been affected from the accused after one month of their arrest has no value. At the most a presumption can be drawn that they are the receiver of the stolen property and can be convicted under Section 411, Indian Procedure Code. 6. Next plank of his contention is that the identification memo (Ex. P.12) reveals that 2 silver coins alleged to have been recovered from accused Mohd. Ansar were not for identification and no value' can be attached to such identification. Information under Section 27 of the Evidence Act does not implicate the accused with the crime. 6. Next plank of his contention is that the identification memo (Ex. P.12) reveals that 2 silver coins alleged to have been recovered from accused Mohd. Ansar were not for identification and no value' can be attached to such identification. Information under Section 27 of the Evidence Act does not implicate the accused with the crime. The accused Jalal and Babul were arrested on May 27, 1994 and the specifications of their shoes were taken on June 2, 1994. Regarding Jalal's foot prints, expert stated that no definite opinion can be given. Even otherwise in absence of any positive evidence relating to the identity of the accused having been involved in the crime, the evidence of foot print alone is not sufficient to hold them guilty. 7. At the end, on the totality of the conspectus of the evidence and circumstances of the case, the learned defence Counsel contended that recovery of the stolen property was not proved as both the Motbirs of recovery Ram Phool (PW 8) and Om Prakash (PW 9) did not support the prosecution case and were declared hostile the guilt under Section 395, Indian Procedure Code has not been established beyond reasonable doubt. The totality of evidence only established an offence under Section 411, IPC and the ends of justice would be met to convict the accused to the term of sentence already undergone by them. 8. Contrarily, the learned Public Prosecutor canvassed that on the totality of the evidence and material on record, the Trial Court was justified in holding the accused persons guilty for the offence under Section 395, Indian Procedure Code. 9. I have reflected over the was submissions and carefully scanned the record. 10. Evidence of identification is, in fact, the evidence of mental impression made by the witnesses of the appearance of the accused at the time of occurrence. The actual evidence, regarding identification, is that which is given by the witnesses in Court. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance, corroborative of the identification in Court. The earlier identification made by a witness at the identification parade, has by itself no independent value. This view has been affirmed by the Supreme Court in Sampat Jatvade Shinde v. State of Maharashtra, 1974(4) SCC 213 . 11. The earlier identification made by a witness at the identification parade, has by itself no independent value. This view has been affirmed by the Supreme Court in Sampat Jatvade Shinde v. State of Maharashtra, 1974(4) SCC 213 . 11. The evidence of the witness having identified the accused at a test identification parade has no substantive value, but is a very important corroboration, of the testimony in Court. Thus, in the absence of test identification proceedings the mere ipsedixit of the witness that the accused was one of the culprits could not be believed at all. Where no identification parade is held, the identification by the witness for the first time in the Court is valueless. This view was expressed by their Lordships of the Supreme Court in Mohan Lal v. The State of Maharashtra ( AIR 1982 SC 839 ) . 12. In the case tin hand accused Mohd. jalal and Mohd. Babul were kept 'Ba parda' and their identification parade was conducted. Witnesses Vishwas Jain and Renu Jain identified them. Identification parade chart (Ex. P.5) was admitted by the Counsel for the accused. Witnesses Vishwas Jain (PW 1) was not asked in the cross examination that the accused were shown to him in the police station. Witness Renu Jain (PW 10) was also not questioned in the cross examination that accused were shown to her. Though she stated in her cross examination that her husband Vishwas Jain had gone to police station to see the accused but her statement in respect of Vishwas Jain cannot be appreciated looking to the fact that Vishwas Jain appeared as a witness but no such suggestion was made to him. A perusal of identification parade chart (Ex. P.5) reveals that the accused did not raise objection before the Magistrate that they were shown to the witnesses in the police station. Similarly the question that accused alai had pox pitted face and the person mixed up with the accused Babul in the identification parade had also pox-pitted face or not ? was not asked from the witnesses. Even the question was not asked from Investigating Officer Govind Detha (PW 13) who arrested accused Mohd. Babul that he was having pox-pitted face. Similarly questions regarding identity of accused Mohd. Jalal were not asked from the witnesses. was not asked from the witnesses. Even the question was not asked from Investigating Officer Govind Detha (PW 13) who arrested accused Mohd. Babul that he was having pox-pitted face. Similarly questions regarding identity of accused Mohd. Jalal were not asked from the witnesses. The Magistrate who conducted identification parade could have explained as to in what manner he arranged the parade, but he was not examined as the identification parade chart was admitted by the accused. I am unable to persuade myself to agree with the submission of learned defence Counsel that the identification chart does not inspire confidence. The identification marks of the accused shown in the memos of arrest cannot be made basis to dismiss the identification parade chart. 13. The witness Vishwas Jain and Renu Jain identified the accused persons in Court and corroborated the earlier identification of accused Mohd. Babul and Mohd. Jalal made by them in the identification parade. 14. Now I come to the next argument of learned defence Counsel in respect of identification of robbed property. Witness Renu Jainidenti tied the ornaments in the identification parade as well as in the Court. In Earabhdrappa v. State of Karnataka, AIR 1983 SC 446 , their lordships of the Supreme Court indicated that it is a matter of common knowledge that ladies have an uncanny sense of identifying their belongings, particularly articles of common use in the family. The identification of the ornaments and clothes by the ladies is admissible and cannot be rejected for want of prior test identification. 15. In Ram Kishan v. State of Rajasthan, 1985 (1) Crimes 147 (Raj.) (DB) , it was held that the identification of articles by owners cannot be discarded merely on the ground of delay in holding the identification parade as the owners of the articles by feel, touch etc. although they may not be able to formulate the reasons as identification is based on the untranslatable impressions of their minds. Identification memo Ex. P12 was admitted by the Counsel for the accused persons and it inspires confidence. 16. although they may not be able to formulate the reasons as identification is based on the untranslatable impressions of their minds. Identification memo Ex. P12 was admitted by the Counsel for the accused persons and it inspires confidence. 16. After the decision is Kottya's case AIR 1947 PC67 , followed by Supreme Court in Parsad's case ( AIR 1957 SC 211 ) , it is well-settled now that provisions of Section 27 of the Evidence Act are byway of exceptions to the rule of inadmissibility Of confessional statement of the accused in custody of a police officer as provided in Sections 25 and 26 of the Evidence Act. Before the provisions of Section 27 of the Evidence Act can be attracted two essential requirements should be satisfied, namely:- (i) the person making the statement must be accused of any offence, and (ii) he must be in the custody of a police officer. 17. In the instant case on the basis of voluntary disclosure statements of the accused the robbed ornaments and coins of Vishwas Jain and Renu Jain were discovered. Ville Ex. P.10 silver coin bearing writing' Renu weds Vishwas' recovered on the basis of disclosure statement of accused Mohd. Jalal. Two similar silver coins were discovered vide Ex. P.11 in pursuance to information under Section 27 of the Evidence Act given by accused Ansar. Two gold bangles were discovered vide Ex. P.13 as per information given by Mohd. Jalal. Two gold bangles and one gold chain were discovered vide Ex. P.14 in pursuance of the disclosure statement of accused Mohd. Babul and the ornaments were identified by Smt. Renu Jain. The Investigating Officer had attested the discoveries. The Motbirs though did not support the discoveries but they had admitted having put their signa to resover recovery memos. 18. Speciman footprints of shoes of accused Mohd. Jalal and Mohd. Babul were taken by the Investigating Officer vide Ex. P.15 and Ex. P.16. Two chance shoe impression moulds marked Al and A2 along with specimen shoe impression should marked and S2 of Mohd. Babul (S2 left shoe) and Mohd. Jalal (S1 right shoe) prepared on June 2, 1994 to the Director, Finger Print Bureau. Rajasthan laipur. The opinion Ex. P.27 was received as under "1. Chance shoe impression would marked Al seem similar with the specimen right shoe impression mould marked S1 of Jalal....... "2. Babul (S2 left shoe) and Mohd. Jalal (S1 right shoe) prepared on June 2, 1994 to the Director, Finger Print Bureau. Rajasthan laipur. The opinion Ex. P.27 was received as under "1. Chance shoe impression would marked Al seem similar with the specimen right shoe impression mould marked S1 of Jalal....... "2. Chance shoe impression mould marked A2 seem similar with the specimen left shoe impression mould marked S2 of Mohd. Babul...... 19. Thus, the prosecution has established the guilt under Section 395, Indian Procedure Code against the accused Mohd. Jalal and Mohd. Babul beyond reasonable doubt. Both these accused persons were identified by the witnesses in identification parade and also in the Trial Court. On the basis of their voluntary disclosure statements under Section 27 Evidence Act, robbed ornaments and coins were discovered which were identified by Smt. Renu Jain and chance shoe impressions lifted from crime scene seem similar with the specimen shoe impressions of the accused Mohd. Jalal and Mohd. Bahul. 20. But the case of accused Mohd. Ansar is distinguishable with that of the case of the accused Mohd. Jalal and Mohd. Babul. His identification parade was not arranged. Though he was identified by the witnesses in Court but in absence of identification in identification parade his identification for the first time in Court is valueless. In his disclosure statement under Section 27 Evidence Act, accused Mohd. Ansar stated that he was ready to discover the silver coins which he received from accused Mohd. Jalal and Mohd. Babul. The specimen shoe impression of accused Mohd. Ansar was also not prepared by the Investigating Officer. Under these circumstances the prosecution is able to establish only the guilt of receiving stolen property against accused Mohd. Ansar which is punishable under Section 411, Indian Procedure Code. His participation in the dacoity has not been established beyond reasonable doubt. 21. From what has been said above, I conclude that the accused Mohd. Jalal and Mohd. Babul have rightly been convicted. There is no scope for interference in the sentence. Thus the appeals of Mohd. Jalal and Mohd. Babul stand dismissed. The appeal of accused Mohd. Ansar stands partly allowed, his conviction under Section 395, IPC is set aside instead Mohd. Ansar stands convicted under Section 441, Indian Procedure Code and sentenced to suffer three years rigorous imprisonment. There is no scope for interference in the sentence. Thus the appeals of Mohd. Jalal and Mohd. Babul stand dismissed. The appeal of accused Mohd. Ansar stands partly allowed, his conviction under Section 395, IPC is set aside instead Mohd. Ansar stands convicted under Section 441, Indian Procedure Code and sentenced to suffer three years rigorous imprisonment. Let a copy of this judgment be placed on record of each case.Ordered accordingly. *******