JUDGMENT - R.M.S. KHANDEPARKAR, J.:---All these appeals arise from the judgment and order passed on 12th May, 1995 by the 2nd Additional Sessions Judge, Dhule in Sessions Case No. 44 of 1994 convicting all the appellants for dacoity, causing grievous hurts as well as house trespass during night hours under sections 397 read with section 395 as well as section 457 of the Indian Penal Code and has sentenced to suffer rigorous imprisonment for a period from 2 years to 7 years in relation to different offences for which they have been convicted and, therefore, all these appeals are heard together and are being disposed of by this common judgment. 2. The facts, in brief, relevant for the decision are that, the appellants herein were prosecuted for offences punishable under section 395 read with section 397 and 457 of the Indian Penal Code on the allegation that the appellants along with 11 other absconding accused persons on the night intervening 14th and 15th February of the year 1991 committed dacoity by trespassing the bungalow of the complainant Vishwanath and forcibly took away the property worth over 4,00,000/- rupees while causing grievous hurts to the complainant, his watchman and some other inmates of the house. The prosecution case is that at the relevant date and time the crowd of 30 to 35 persons gathered in front of the bungalow of the complainant armed with various weapons and after assaulting the watchman Vithal, some of the persons from the crowd forcibly entered the house and assaulted the inmates including the complainant and his family members, broke open the cupboard and the safe and took away ornaments of the inmates. After the incident, the complainant approached Shahada Police Station and after lodging the complaint procured the services of the doctor for treatment for the persons injured on account of assault by the dacoits. Pursuant to the complaint, the investigation was carried out and the appellants were charged with the offences as stated above. 3. The prosecution examined as many as 23 witnesses including the inmates of the house of the complainant, the goldsmiths to whom the ornaments were alleged to have been sold by the accused-appellants, the Panch witnesses, the Tahsildar who is stated to have held identification parade and the Investigating Officer. The learned Additional Sessions Judge after recording the evidence, convicted the appellants as stated above. Hence, these appeals. 4. The learned Additional Sessions Judge after recording the evidence, convicted the appellants as stated above. Hence, these appeals. 4. The conviction of the appellants is sought to be challenged mainly on the ground that the prosecution has not established the identity between the persons stated to have committed dacoity viz-a-viz the appellants and in that regard neither the testimony of the complainant and other inmates of the complainant's house disclose that any of them had identified any of the appellants as the member of the group of persons who are stated to have committed dacoity nor the identification parade stated to have been held by the Tahsildar established that the appellants herein or any one of them is involved in the alleged offences. Placing reliance on the decisions in the matter of (Ramchandra Budhiram Gupta v. State of Maharashtra)1, reported in 1996(1) Bombay Criminal Cases 285; (Ganesh Bhagwati Pandian v. State of Maharashtra)2, reported in 1985 Cri.L.J. 191 and (Babdya Balji Pawara v. State of Maharashtra)3, reported in 2000(5) Bom.C.R. (A.B.)140 the learned Advocate for the appellants submitted that, neither the provisions of the Criminal Manual in relation to the procedure for conducting identification parade has been followed while conducting the identification parade nor the minimum required precaution, which is otherwise required to be taken for a valid identification parade, had been taken by the Tahsildar and, therefore, no value can be attached to the identification parade. It is further submitted that undisputedly none of the witnesses had identified the appellants as the persons who had committed trespass or assault on the complainant and inmates of his house on the day of the incident. Further, admittedly those assailants had covered the faces by pieces of cloth and there was no description of any of the assailants disclosed by the complainant and other witnesses, hence the so called identification parade is to be considered as a total farce. It is further contended that even as regards the ornaments which have been stated to have been stolen from the house of the complainant there is no evidence produced on record to show that the said ornaments were sold by the appellants or any one of them to any particular person. The goldsmiths, P.W. Nos. 11 to 15 to whom the said ornaments were alleged to have been sold, have not supported the prosecution case. The goldsmiths, P.W. Nos. 11 to 15 to whom the said ornaments were alleged to have been sold, have not supported the prosecution case. Being so, even as regards the ornaments the prosecution has failed to establish that the ornaments were stolen by the appellants and those were sold to the goldsmiths as well as the involvement of the appellants in the theft of the said ornaments and sale thereof to the said persons. Drawing attention to the testimony of the Panchas it was further sought to be contended that their testimony also does not of any help to the prosecution in any manner as the testimony discloses the sale of the ornaments at one place whereas the ornaments have been actually stated to have been recovered from a totally different place. The identification parade is also sought to be challenged on the ground of delay. It is the contention of the appellants that they were arrested much prior to the holding of the identification parade and the prosecution has not produced any evidence justifying the delay in holding the identification parade. 5. Perusal of the evidence on record discloses that the complainant Vishwanath in his testimony has stated that on the relevant day and time he saw 6 to 7 persons standing in the courtyard and they were holding lathis in their hands and they were of the age group of 25 to 30 years and they had covered their faces upto the eyes. He has further deposed that about 5 to 6 dacoits entered the bungalow and assaulted the inmates including the complainant and took away ornaments of worth Rs 6,00,000/-. These ornaments were consisting of 3 necklace, 6 pairs of bangles, one Chosra weighing 14 Tolas, 4 to 5 gold rings, 2 to 3 chains, one ring having diamond and other ornaments like ear rings, tops etc. 10 silver bars weighing one kilogram each. Besides, 4 wrist watches, 2 of Citizen company and 2 of Titan company, and currency notes of Rs. 20,000/-. He has further deposed that at the time of dacoity the dacoits had covered faces with pieces of cloth and he could not identify any of the dacoits on that night. 6. The prosecution has examined other inmates being daughters of the complainant Sarla P.W. 1, other daughters Nisha and Aruna, P.Ws. 20,000/-. He has further deposed that at the time of dacoity the dacoits had covered faces with pieces of cloth and he could not identify any of the dacoits on that night. 6. The prosecution has examined other inmates being daughters of the complainant Sarla P.W. 1, other daughters Nisha and Aruna, P.Ws. 2 and 3 respectively, nephew of the complainant, named Rahul P.W. 4 and wife of the complainant, Sandhya P.W. 6. Perusal of their testimony discloses that none of them was able to identify the dacoits on the date of the incident. They had covered their faces with pieces of clothes. Similar is the case of the watchman Vithal, P.W. 7, and son of the complainant, Unchit, P.W. 8. None of these witness have even given any identification of any of the dacoits except saying that they were in half pants and the persons were of middle age. Undisputedly, the prosecution has not examined any other witness to establish the presence of any of the appellants at the site on the relevant date and time. There is no attempt to examine any independent witness who might have seen the appellants or some of them in the locality at the relevant time and day. Undisputedly, the complaint was lodged immediately after the incident i.e. at about 2.15 a.m. on 15-2-1991. The testimony of P.W. 22, Investigating Officer, who received the information about the dacoity, does not disclose any serious attempt having been made after the receipt of the information to take the steps to arrest the persons involved in the dacoity except sending message to Dhule to procure a dog who is stated to have reached the spot only on the next day morning at about 7.00 a.m. and the dog having proceeded from the house in one village without any further trace. The Investigating Officer has not disclosed in his statement as to what actual efforts were made by him to search the dacoits after the registration of the complaint or what attempts were been made to avoid fleeing away of the dacoits from the village. His testimony discloses that on mere suspicion without any basis the appellants were arrested and the entire Investigating against the appellants had proceeded without even trying to find out the link between the appellants and the incident of dacoity. 7. His testimony discloses that on mere suspicion without any basis the appellants were arrested and the entire Investigating against the appellants had proceeded without even trying to find out the link between the appellants and the incident of dacoity. 7. The testimony of the P.W. 21 the Tahsildar, discloses the identification parade was conducted in his chamber and in the identification parade there were about 24 people including the 8 appellants. The relevant portion of the testimony of the Tahsildar reads thus : "Thereafter accused and other 16 persons were made to stand in a row in a mixed position in alternate position." In other words, all the 8 accused were stated to have identified at open parade by placing them in alternate position along with other 16 persons. This is further clear from the alleged identification by the complainant P.W. 5 and his son Unchit P.W. 8. It has been further stated by the Tahsildar, P.W. 21 that both the said witnesses identified the accused standing at serial numbers 2, 5, 7, 10, 12, 14, 16, 18, 20 and 22. 8. Chapter I, paragraph 16(3), of the Criminal Manual issued by this Court prescribes in detail the procedure to be followed while holding the identification parade. Accordingly, the Executive Magistrate holding identification parade has to ensure that not more than 2 accused should be placed in any single identification parade when there are more than 2 accused in a case. He has also to ensure that the persons who are to be mixed up with the accused must be the persons of more or less the same physique, appearance and approximately of the same age. Besides that such new persons to be mixed up should be different for each such parade. In the case in hand, as has been clearly admitted by the Tahsildar the identification of all the 8 accused was conducted at only one parade and that too placing them in alternate position along with 16 other unseen persons. This is in clear violation of the guidelines laid down by this Court in the Criminal Manual for the purpose of holding the identification parade. This is in clear violation of the guidelines laid down by this Court in the Criminal Manual for the purpose of holding the identification parade. Though it may be contended that mere violation of some guidelines per se could not render the entire identification parade invalid and not reliable, and even the evidence of the identification parade is not a substantive piece of evidence in cases where the accused persons are not known to the complainant, it has great importance in establishing the link between the assailants and the accused and therefore in the absence of proper care being taken, while holding the identification parade, serious prejudice can result to the accused. Indeed, in the case in hand such prejudice having been caused to the appellants is apparent on the face of the record inasmuch as it has been clearly admitted by the Tahsildar that the accused were placed in alternative position with other 16 persons making it rather convenient and easier for the witnesses to identify the dacoits as the accused persons. The learned Advocate for the appellants is certainly justified in placing reliance in the matter of Ramcharan Budhiram Gupta's case wherein the Division Bench while highlighting the care that should be taken while holding identification parade has held that persons of similar appearance to the accused should be made to stand as dummies. Undisputedly there is no evidence produced in that regard to show that the persons who were made to stand along with the accused were of similar in appearance to that of the accused persons. So also the Division Bench of this Court in the said Ramcharan's case has held that the guidelines prescribed by this Court in relation to holding of identification parade in the Criminal Manual are to be strictly complied with in order to have such identification parade evidentiary value in support of the case of the prosecution. Considering the fact that not only that no such precautions were taken by the Tahsildar while conducting the identification parade but his clear statement that he had not given any direction to the Clerks of the Tahsil office regarding the requirement of the persons of particular age group while they were required to call persons for holding the identification parade. Considering the fact that not only that no such precautions were taken by the Tahsildar while conducting the identification parade but his clear statement that he had not given any direction to the Clerks of the Tahsil office regarding the requirement of the persons of particular age group while they were required to call persons for holding the identification parade. This means that the Tahsildar had not taken any care to comply with the guidelines fixed by this Court for the purpose of identification parade. It is further relevant to note that the Tahsildar has also admitted that though the 3 witnesses were made to identify the accused in the identification parade, at no point of time the number of accused in the identification parade were changed in the course of entire identification parade and all the accused continued to remain in the same position while being asked to be identified by 3 different persons. This fact shows, as rightly submitted by the learned Advocate for the appellants, that the identification parade was a mere farce and no evidentiary value at all can be attached to the same. 9. As regards the ornaments which are alleged to be stolen from the bungalow of the complainant and alleged to be sold by the appellants, the testimony of panch witnesses, P.Ws. 9 and 10, discloses that the disclosure made by some of the appellants relates to a place other than the place where the ornaments were sold whereas the recovery panchanama discloses that some ornaments were recovered from a totally different place. That apart, the testimony of P.W. 9 refers to the disclosure statement to be by an accused by name Anya whereas the Exhibit 54, which is stated to be a disclosure panchanama refers to the disclosure by one Khalya Vasave. So also the evidence of panchas discloses that though the alleged discovery refers to certain ornaments, the recovery was actually of melted gold or gold bars. There is nothing placed on record, nor even attempt made by the investigating machinery, to establish any link between the ornaments alleged to have been sold by the appellants to the respective goldsmiths and the melted gold stated to have been recovered from the goldsmiths. Furthermore it is pertinent to note that none of the goldsmiths, namely, P.Ws. There is nothing placed on record, nor even attempt made by the investigating machinery, to establish any link between the ornaments alleged to have been sold by the appellants to the respective goldsmiths and the melted gold stated to have been recovered from the goldsmiths. Furthermore it is pertinent to note that none of the goldsmiths, namely, P.Ws. 11 to 15, have supported the case of the prosecution and, on the contrary, all the said 5 witnesses were declared hostile. Even after declaring them hostile, the prosecution could not get anything from the cross-examination of the said witnesses so as to establish even remotely any link between the ornaments alleged to have been sold by the appellants and the gold which was recovered from the goldsmiths. It is also pertinent to note that neither the complainant nor any of the inmates who have been examined before the Court, have given any description of the ornaments alleged to have been stolen on the date of the incident. 10. The prosecution having not established any link between the assaults stated to have been taken part in the dacoity at the bungalow of the complainant and the appellants herein, there is absolute no link established between the alleged offence and the appellants and therefore the appellants are entitled to be acquitted of the charges for which they were prosecuted and tried. 11. In the result, therefore, the appeals succeed and are hereby allowed. The impugned judgment and order dated 12-5-1995 of the 2nd Additional Sessions Judge, Dhule in Sessions Case No. 44 of 1994 is hereby set aside and the appellants are acquitted. The appellants are directed to be released forthwith unless they are required in any other case. Appeal succeed and allowed. -----