Judgment RANJANA DESAI, J. ( 1 ) THE appellants-original Accused Nos. 1 and 2 were tried in the Court of Additional Sessions Judge, Pune, in Sessions Case No. 22 of 1997 for offences punishable under sections 396 and 342 of the Indian Penal Code. ( 2 ) BY the judgment and order dated 18th November, 1997, the learned Additional Sessions Judge convicted the accused for offence under section 396 of the Indian Penal Code and sentenced them to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/ -. In default they were to suffer Rigorous Imprisonment for six months. The learned Judge also convicted the accused for offence under section 342 of the Indian Penal Code and sentenced them to suffer R. I. for six months. The accused were acquitted of the offence under section 397 of the Indian Penal Code. ( 3 ) BEING aggrieved by the said judgment and order of conviction and sentence the appellants have approached this Court, by preferring the present appeal. For the sake of convenience the appellants are hereinafter referred to as Accused Nos. 1 and 2 respectively. ( 4 ) AT the trial the case of the prosecution is as under :--- p. W. 1 Ramdas Wagaskar was serving as a Cashier in the Yadav Service Centre Petrol Pump belonging to Captain Mansing Yadav. It is situated on Pune-Nagar Road near Chandannagar Durga. On 22-9-1996 at about 8. 30 p. m. he was sitting in his glass cabin. P. W. 5 Shrikant Shinde, a truck owner was sitting by hisside. Another driver was standing in front of him as he had brought his vehicle for filling diesel. There were two petrol Cashiers near the pump. One of them was Dyaneshwar Khandave, the deceased and the other was Raju Dagdu Dongre, the injured. P. W. 3 Bhausaheb Tambe, filler was also present. About 7 to 8 persons armed with weapons came running to the pump. They started beating Dyaneshwar Khandave with the help of axe and sword. They were wearing blue black jerkins and full pants. They had tied cloth of black and blue colour around their head. While P. W. 1 Ramdas Wagaskar and P. W. 5 Shrikant Shinde were about to come out of the cabin, one person holding a country gun came and put the barrel on the chest of Shinde. They were wearing blue black jerkins and full pants. They had tied cloth of black and blue colour around their head. While P. W. 1 Ramdas Wagaskar and P. W. 5 Shrikant Shinde were about to come out of the cabin, one person holding a country gun came and put the barrel on the chest of Shinde. About 6 to 7 persons entered the cabin. One or two persons asked them to give the cash. They gave them threats that they would be killed if they do not take out the cash. Two to three persons opened the cash box, collected the cash in a bag and other 2/3 persons searched the counter. By that time the person holding the gun went out, and fired in the air so as to create a terror. He came back and pointed the gun at Shinde. He asked Shinde to give cash. Shinde handed over the cash and wrist watch to him. Two to three of them caught hold of the neck of Shinde. They also caught hold of P. W. 1 Ramdas Wagaskar by the neck. They took them towards the cabin of the owner. They opened the door by kicking the same. Ramdas went to the telephone in the cabin because by that time the telephone rang. As he lifted the phone the gun holder came and pulled the wire. Ramdas was relieved of about Rs. 15,000/- to Rs. 20,000/- cash. Shinde was confined in the cabin. All of them went out of the cabin. Ramdas took Shinde out of the cabin. Raju Dongre was lying in a pool of blood. He was unconscious. Near the pump Dyaneshwar Khandave was lying in a pool of blood. By that time one Mohan Bahir came and told him that the dacoits had given fist blows on his abdomen. Shinde was relieved of Rs. 500/- and a watch. Ramdas then went to the cabin and rang the police. The dacoits had run away. P. W. 12 Shamrao Dhulubulu, P. I. attached to Yeravada Police Station, Pune was on bandobast duty for Ganpati Festival at Yeravada on 22-9-1996. At about 22. 50 hours he received a wireless message regarding the dacoity on a Petrol Pump on Nagar Road. He then proceeded to the scene of offence. He informed the superior officers about the incident. P. W. 12 Shamrao Dhulubulu, P. I. attached to Yeravada Police Station, Pune was on bandobast duty for Ganpati Festival at Yeravada on 22-9-1996. At about 22. 50 hours he received a wireless message regarding the dacoity on a Petrol Pump on Nagar Road. He then proceeded to the scene of offence. He informed the superior officers about the incident. Upon reaching the scene of offence he enquired with the complainant Ramdas about the incident. The complainant told him that the injured Rajendra was shifted to the hospital. P. I. Dhulubulu recorded the complaint (Exhibit 13) of Ramdas. He registered offence at C. R. No. 250 of 1996. Investigation started on the basis of the complaint. Gajanan Huddedar, who was at the relevant time attached to Yerawada Police Station as A. P. I. also took further steps in the investigation as per the directions of P. I. Shamrao Dhulubulu. Injured Dyaneshwar Khandave succumbed to his injuries in the hospital and the inquest panchnama was prepared on 22-9-1996. P. W. 9 Dr. N. T. Katade carried out post-mortem examination. He found that death was due to coma as a result of intra-cranial haemorrhage due to head injury. On 30-9-1996 accused came to be arrested. On 4-10-1996 at the instance of accused No. 2 sword and clothes were recovered under panchnama. On 30-10-1996, at the instance of accused No. 1 axe, jacket, shirt and pant were recovered under panchnama. P. W. 10 Ulhas Korande Spl. Judicial Magistrate held Identification Parades on 19-10-1996 and 22-10-1996. In the identification parade held on 22-10-1996, P. W. 1 Wagaskar and P. W. 3 Bhausaheb Tambe identified the accused. After completion of the investigation the accused came to be charged as aforesaid. ( 5 ) AT the trial in support of its case the prosecution examined P. W. 1 Ramdas Wagaskar the complainant, P. W. 2 Rajendra Londhe the injured, P. W. 3 Bhausaheb Tambe who was on duty at the relevant time at the Petrol Pump and P. W. 5 Shrikant Shinde who had come to fill diesel at the Petrol Pump. P. W. 4 Antappa Saygunthe and P. W. 6 Shirsat have been examined to prove recoveries made at the instance of the accused. Identification parade was held by P. W. 10 Ulhas Korande, the Special Judicial Magistrate. P. W. 4 Antappa Saygunthe and P. W. 6 Shirsat have been examined to prove recoveries made at the instance of the accused. Identification parade was held by P. W. 10 Ulhas Korande, the Special Judicial Magistrate. The prosecution also examined panchas P. W. 7 Vithal Shelar and P. W. 8 Vishwas Reddy in connection with the identification parades. Particulars of investigation have been given by P. W. 11 A. P. I. Huddedar who was, at the relevant time attached to Yerawada Police Station and P. W. 12 P. I. Shamrao Dhulubulu. P. W. 9 Dr. Katade deposed about the Post Mortem conducted on the deceased Dyaneshwar Khandave. ( 6 ) THE defence of the accused was one of denial. After perusing the evidence on record the learned Sessions Judge convicted the accused as aforesaid and hence the present appeal. ( 7 ) WE have heard at some length Shri C. M. Kothari, the learned Counsel appearing for the appellant and Shri S. R. Borulkar, learned Additional Public Prosecutor for the State of Maharashtra. We have been taken through the evidence recorded by the learned Judge and also the documentary evidence. ( 8 ) THE evidence adduced by the prosecution conclusively proves that the incident in question did take place on 29th September, 1996 at about 20-40 hours at Yadav Service Station, Chandannagar. In this behalf the prosecution has examined Ramdas Wagaskar (P. W. 1), Rajendra Londhe (P. W. 2), Bhausaheb Tambe (P. W. 3) and Shrikant Shinde (P. W. 5 ). The evidence of these witnesses as regards the occurrence of the incident is consistent. They have stated that about 7 to 8 persons armed with weapons came running at the pump. They caught hold of deceased Dyaneshwar and started beating him with axe and sword. They also attacked Raju Dongre. Six to seven persons entered the cabin and threatened. They asked them to take out the money. They removed cash worth Rs. 15,000/- to Rs. 20,000/ -. P. W. 2 Rajendra Londhe is the injured witness. He sustained injuries during this incident at the hands of the dacoits. P. W. 3 Bhausaheb Tambe managed to escape. On his return he found Dyaneshwar Khandave, the deceased and Raju Dongre lying in the pool of blood. Panchanama Exhibit 19 shows that blood was found at the scene of offence. P. W. 2 Rajendra Londhe is the injured witness. He sustained injuries during this incident at the hands of the dacoits. P. W. 3 Bhausaheb Tambe managed to escape. On his return he found Dyaneshwar Khandave, the deceased and Raju Dongre lying in the pool of blood. Panchanama Exhibit 19 shows that blood was found at the scene of offence. The change in the cash counter was lying in the disorderly manner. The incident in question, therefore, is proved beyond reasonable doubt. ( 9 ) AS regards fixing the liability of the incident on the accused, the prosecution has relied on the identification parade evidence and the recovery of articles and the weapons at the instance of the accused and finding of the blood stains on the same. The learned Judge has believed the evidence of identification parade and the recovery of articles at the instance of the accused. He has placed reliance on the finding of blood stains on the articles recovered at the instance of the accused and has convicted the accused. ( 10 ) MR. Kothari, learned Counsel appearing for the appellant has strenuously contended that the evidence in the identification parade deserves to be discarded as proper care was not taken by the learned Magistrate while carrying out the identification parade. Mr. Kothari contended that the evidence of the prosecution witnesses shows that the accused had tied their faces with cloth and therefore, it was impossible for the identifying witnesses to identify them and there is evidence to show that the photographs of the accused were taken by the police. Obviously, therefore, the photographs must have been shown to the identifying witnesses. Doubt is created about the credibility of the identification parade evidence and, therefore, it should be discarded. ( 11 ) AS against that Mr. Borulkar, learned Additional Public Prosecutor contended that the prosecution witnesses have not stated that the entire face was covered by the accused with cloth. Only head was covered leaving the face open and, therefore, the witnesses had seen the accused. Mr. Borulkar contended that in the Memorandum of Identification Parade it is noted that the Special Executive Magistrate had asked the identifying witnesses whether the suspect was shown to the identifying witnesses at any time subsequent to the offence or after the arrest to which the identifying witnesses have said no. Mr. Borulkar contended that in the Memorandum of Identification Parade it is noted that the Special Executive Magistrate had asked the identifying witnesses whether the suspect was shown to the identifying witnesses at any time subsequent to the offence or after the arrest to which the identifying witnesses have said no. Therefore, the evidence of identification parade deserves to be accepted. Mr. Borulkar also contended that the evidence of the recovery of the articles at the instance of the accused and finding of blood stains on the recovered articles clinches the issue. ( 12 ) WE will first examine the evidence relating to the identification of the accused in the Identification Parades. Identification parades were held by P. W. 10 Ulhas Korande, Spl. Judicial Magistrate on 19-9-1996 and 22-9-1996 at the Yerawada Central Prison, Pune. P. W. 7 Vithal Shelar is the pancha witness in respect of the Identification Parade held on 22-10-1996 and P. W. 8 Vishwas Reddy is the pancha witness in respect of the Identification parade held on 19-10-1996. Though in the identification parade held on 19-10-1996, identifying witness, Mohan Bahir and Rajendra Dongre are said to have identified the accused, they have not been examined and hence their evidence as regards the identification of the accused is of no value. Shrikant Shinde, P. W. 5 who was called to identify the accused in the parade held on 22-10-1996 could not identify anybody. Report of test identification parade witnessed by Rajendra Londhe has not been proved. ( 13 ) THE only material evidence will therefore, be that of Identification parades held on 22-10-1996 in which P. W. 1 Wagaskar and P. W. 3 Bhausaheb Tambe identified the accused. The relevant memorandum in connection with them are Exhibit 35 and Exhibit 36 respectively. ( 14 ) BEFORE we proceed to discuss the evidence in connection with the Identification parade, it is necessary to see what are the legal requirements of an Identification parade. The law has been succinctly laid down in the case of (State of Maharashtra v. Rajesh alias Kaka Kaka Madanlal Soni), 1998 All. Mah. (Cri.) 471 by the Division Bench of this Court to which, one of us, Sahai, J. , was a party. The law has been succinctly laid down in the case of (State of Maharashtra v. Rajesh alias Kaka Kaka Madanlal Soni), 1998 All. Mah. (Cri.) 471 by the Division Bench of this Court to which, one of us, Sahai, J. , was a party. While dealing with the requirements of identification parade, the Court has held :"we wish to emphasise that the condition precedent for accepting the evidence of identification is it should be fair and beyond re-approach. To secure that it has to be ensured that prior to the test identification the suspect was not shown to identifying witnesses and the identification was held in the manner stipulated by the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay. "referring to the provisions of the Criminal Manual issued by the High Court wherein procedures for holding test identification has been laid down, the High Court observed :"the Criminal Manual provides that the said guidelines are illustrative and notexhaustive. The Criminal Manual stipulates that when a witness arrives to identify the suspects the Magistrate should ascertain from him whether he had any opportunity to see the culprit at any time subsequent to the offence or after the arrest. "relying on (Ashrafi v. The State), A. I. R. 1961 Allahabad Page 153, the High Court observed :"further the plea of shown need not be established to the hilt by the accused persons. They discharged the burden if they can show from circumstances that there was a reasonable possibility of their being shown to the witnesses prior to test identification. "the High Court further observed :"in this connection, it will be pertinent to refer to the Criminal Manual, which stipulates that it is incumbent for the Magistrate conducting identification to ensure that the dummies are more or less of the same physical appearance and approximately of the same age, as the person to be identified. It is elementary knowledge that any distinctive mark which a suspect has should be mentioned in the memorandum of identification and it should also be noted that either the dummies mixed bore similar distinctive marks or precautions were taken to conceal the distinctive marks of suspect. "keeping the above requirements in mind, it will be necessary to examine whether in the instant case, there is a compliance of the guidelines issued by the High Court in Criminal Manual. "keeping the above requirements in mind, it will be necessary to examine whether in the instant case, there is a compliance of the guidelines issued by the High Court in Criminal Manual. ( 15 ) FIRSTLY as the evidence stands today, it is necessary to see whether the witnesses had any chance to observe the accused, note their feature so as to identify them in the Identification parade. P. W. 1 Ramdas Wagaskar, who was sitting in the cabin has stated in his evidence that 7 to 8 persons who had come to the petrol pump had tied cloth around their head. He saw them from the glass cabin. He has further stated that the person who had entered the cabin had tied cloth around his mouth. In the cross-examination he has stated that it is not true to say that the dacoits had covered their entire face with the help of dirty cloth. When he was conformed with his statement in the F. I. R. that the person who had entered his cabin had covered his entire face with a dirty towel and therefore he partly saw his face, he stated that the said portion recorded in the complaint is not correct. Wagaskar has admitted that he did not give description of the faces of the miscreants to the police and he has explained it away by saying that he was frightened. In view of these facts it is really difficult to accept the prosecution story that he identified the accused in the Identification parade held one month after the incident. ( 16 ) P. W. 2 Rajendra Londhe filler working with Yadav Service Centre was hurt during the incident. He says that the miscreants came towards him, gave him a sickle blow and he fell down. He has also stated that some of the persons were wearing half sleeves and some were wearing full sleeves jerkins and they had tied black cloth to their heads. In the cross-examination he has stated that after he received the sickle blow he fell down. He has admitted that he got confused and was unable to follow what was going on. He could not definitely tell who gave him the sickle blow. According to him he had seen the dacoits for about one and half minute. In the cross-examination he has stated that after he received the sickle blow he fell down. He has admitted that he got confused and was unable to follow what was going on. He could not definitely tell who gave him the sickle blow. According to him he had seen the dacoits for about one and half minute. That means admittedly he had a fleeting glance at the miscreants, who had tied black cloth to their heads. Though he is said to have identified the accused in the Identification parade, report of the test identification parade witnessed by him has not been proved. In these set of circumstances, his evidence does not help the prosecution. ( 17 ) P. W. 3 Bhausaheb Tambe, who was also standing near the diesel pump has stated that the accused were wearing jerkins. They had tied black cloth around their head. They gave blow on the head of Dyaneshwar. They attacked Raju Dongre and then they went in the cabin. Bhausaheb Tambe went at the back of the Petrol Pump, jumped on the wall and ran away. He is said to have identified the accused in the Identification parade. The admission of this witness that the accused had tied black cloth around their head and that immediately after the attack on Dyaneshwar and Raju Dongre, he ran away suggests that he had hardly seen the accused. It is doubtful whether he had sufficient opportunity to observe their features so as to identify them in the Identification parade. ( 18 ) P. W. 5 Shrikant Shinde has stated that on 22-9-1996 he had gone to Yadav Service Centre at 8. 30 p. m. The accused came there. They came in the cashiers cabin where he was sitting. One person put a gun on his chest and others collected cash. They left after 5 to 10 minutes. He was confined in the adjacent room. This witness failed to identify anyone at the Identification parade therefore his evidence is of no use to the prosecution. The evidence of all these witnesses makes one thing clear, that the accused had covered their faces with cloth, making it difficult for the witnesses to observe their features and identify them. ( 19 ) IT will be now necessary to examine the evidence in the light of the judgments referred to hereinabove, to see whether proper procedure was followed. The evidence of all these witnesses makes one thing clear, that the accused had covered their faces with cloth, making it difficult for the witnesses to observe their features and identify them. ( 19 ) IT will be now necessary to examine the evidence in the light of the judgments referred to hereinabove, to see whether proper procedure was followed. P. W. 12 Shamrao Dhulubulu, P. I. attached to Yeravada Police Station has in the cross-examination stated "i had taken the photographs of the accused for the purpose of record but I can not tell the date. The photographs were taken when they were in police custody. " relying on this admission, Mr. Kothari, the learned Counsel for the appellants has urged that the entire identification evidence becomes doubtful because it is quite possible that the photographs were shown to the identifying witnesses. ( 20 ) IN this connection, it is necessary to refer to the decision of the Allahabad High Court reported in A. I. R. 1961 Allahabad 153, Ashrafi and another v. The State, where the Allahabad High Court while considering the evidence of Identification parade has made the following observation :---"where a witness gives evidence on oath the presumption is that he is speaking the truth. If, therefore, the prosecution have led evidence to show that from the time of arrest of an accused to the time of his admission into the jail precautions were taken to ensure that he was not seen by any outsider, and if the identifying witnesses depose that they never saw him at any time between the crime and the identification, the burden lying on the prosecution has been discharged. It is then for the accused to establish that he was shown. The law does not require him to do so affirmatively; it is sufficient, if he can succeed in creating a reasonable doubt in the mind of the Court. "