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2004 DIGILAW 1544 (MAD)

Raju & Others v. State by Inspector of Police

2004-11-20

M.THANIKACHALAM, P.SATHASIVAM

body2004
Judgment :- M.Thanikachalam, J. Crl.A.No.757 of 2002: Accused Nos 1 and 2, who have been convicted in S.C.No.504/2004 on the file of the Additional Sessions Judge, Salem (Fast Track Court No.II) for the offences under Sections 148 and 302 I.P.C and sentenced to undergo one year Rigorous imprisonment for the offence under Section 148 IPC,life imprisonment for the offence under Section 302 IPC are the appellants. The second accused is also convicted under Section 397 I.P.C. and sentenced to undergo seven years rigorous imprisonment. Crl.A.No. 632 of 2003: Accused Nos.6 and 7, who have been convicted in S.C.No.504 of 2004 on the file of the Additional Sessions Judge, Salem(Fast Track Court NO.II) for the offence under Sections 341, 147 and 302 IPC and sentenced to undergo simple imprisonment for one month for the offence under Section 341 IPC, six months rigourous imprisonment for the offence under Section 147 IPC and life imprisonment for the offence under Section 302 IPC are the appellants. 2. The respondent-police had filed a final report against the accused/appellants, and others seeking appropriate punishment, under Sections 341, 148,147,302 read with 34 and 120(b) IPC 302 read with 149, 302 read with 109 IPC and under Section 397 IPC, on the ground that the accused/appellants and three others formed themselves into an unlawful assembly, with an intention to commit crime, that A6 and A7 wrongfully restrained the lorry driven by Prakash (deceased) and took him away, where he was done to death by some of the accused,that some of the accused had threatened P.Ws.1 and 2, while they were in lorry and committed dacoity, at knife point, with common intention, as well as being the members of an unlawful assembly and in this view, all the accused should be dealt with, accordingly for the offences made out, under the above said sections. 3. All the appellants including the other three accused, who have not filed appeals, against their convictions and sentence, have refused to plead guilty thereby compelling the prosecution to prove the guilt of the accused beyond all reasonable doubt. The prosecution taking the burden of proof on their shoulders, as mandated under law, in order to discharge the same, had examined as many as thirteen witnesses, seeking aid from thirty documents, supported by 22 material objects. 4. The prosecution taking the burden of proof on their shoulders, as mandated under law, in order to discharge the same, had examined as many as thirteen witnesses, seeking aid from thirty documents, supported by 22 material objects. 4. The learned Additional Sessions Judge(Fast Track Court No.II) weighed the materials as mandated under law, evaluated the same, with all probabilities and naturalities, which brought to surface, according to the best assessment of the learned trial Judge, that the offences reported against all the accused, proved beyond doubt. 5. The trial Judge mainly relying upon the oral evidence of P.W1, whose evidence inspired him, supported by other circumstances, in the form of circumstantial evidence, as well as taking into consideration, the test identification parade, conducted by the Judicial Magistrates, where the accused were identified by P.W.1, coupled with the recovery of certain material objects, on the basis of the confessions said to have been given by some of the accused, felt that the accused are liable to be convicted, that too in order to protect the interests of the society, for this kind of dacoity. Thus concluding the learned Judge, had convicted A1 to A9 for the various offences and sentenced them to undergo imprisonment as follows: a) A1 to A7 under Section 302 IPC to undergo life imprisonment. b) A6 and A7 under Section 341 IPC to undergo one month simple imprisonment. c) A1,A2, A3 and A5 under Section 148 IPC to undergo one year rigorous imprisonment. d) A4,A6,and A7 under Section 147 IPC to undergo six months rigorous imprisonment. e) A2, A4 and A5 under Section 397 IPC to undergo seven years rigorous imprisonment. Which is under challenge in these appeals, in so far as the appellants are concerned. 6. The facts leading to the conviction of the accused/ appellants, are briefly as follows:(a) Thiru Kaliyamurthy (P.W.6) is the father of Prakash(deceased). They were owning a lorry, bearing registration No.TN 27 E 1028, which was used for hire. In the lorry, Stalin(P.W.1) was working as Cleaner and Thiru Selvaraj(P.W.2) was working as driver, along with owner cum driver namely Prakash(Deceased).P.Ws.1,2 and Prakash who have gone to Nagpur in this lorry taking some goods, after unloading, returned with cotton load, which should be unloaded near Chettinad, Pudukottai District. In the lorry, Stalin(P.W.1) was working as Cleaner and Thiru Selvaraj(P.W.2) was working as driver, along with owner cum driver namely Prakash(Deceased).P.Ws.1,2 and Prakash who have gone to Nagpur in this lorry taking some goods, after unloading, returned with cotton load, which should be unloaded near Chettinad, Pudukottai District. On 8.6.2000, at about 2.30 a.m., while the lorry was proceeding in Salem Dharmapuri National Highway near Thoppur Railway bridge, A6 and A7 wrongfully restrained the lorry, thereby compelling Prakash to stop the same. Immediately, thereafter A7 took the deceased to a nearby place where he had intercourse with A7 and thereafter, some of the accused had committed murder of Prakash by stabbing, cutting with deadly weapon such as, knife and screwdriver. Then A2, A4,A5 returned to the lorry and threatened P.Ws.1 and 2 at knife point and took away their belongings, namely cash, tape recorder, waist cord, thus committed dacoity or robbery, as the case may be, then all the accused disappeared from the scene of occurrence. (b) P.W.1, who is a victim of this incident went to Theevatti Patti Police Station and preferred Ex.P.1 complaint, on which basis,P.W.11 registered a case in Crime No.574 of 2000 under Sections 302 and 379 IPC, for which the printed First Information Report, Ex P26 has been sent to the Court concerned. Upon receipt of the copy of F.I.R., Thiru Rajugopalan, Inspector of Police, who was in-charge of the said police station commenced the investigation and in that process, he inspected the scene of occurrence prepared the mahazaar, sketch and also caused photographs to be taken, in the scene of occurrence. He had also recovered some of the material objects and in addition, he conducted inquest also. During the course of investigation, he had also recorded the statements of witnesses then and there. In order to ascertain the cause of death of Prakash, he had made arrangements for conducting autopsy, by giving requisition. (c) On receipt of the requisition from the Investigating Officer Ex P.7, P.W.5 conducted autopsy over the body of Prakash,on identification by the police concerned, on 8.6.2000 at about 2.00p.m. The post-mortem revealed the following injuries: "i. A. Stab injury 3 cm x 1 cm x 4 cm deep on the right lower neck, backward and slightly upwards. ii. (c) On receipt of the requisition from the Investigating Officer Ex P.7, P.W.5 conducted autopsy over the body of Prakash,on identification by the police concerned, on 8.6.2000 at about 2.00p.m. The post-mortem revealed the following injuries: "i. A. Stab injury 3 cm x 1 cm x 4 cm deep on the right lower neck, backward and slightly upwards. ii. A stab injury 2 cm x 1 cm x 1 cm x 1 cm on the upper part of right neck just below chin slightly upward meding. iii. A cut injury 5 cm x 1 cm x 1cm on the center of neck below chin. iv. An abrasion on the chin 1" below the 3rd injury 1/2cm x 1/2 cm. v. A lacerated injury on the left index finger 1 cm x 1 cm. vi. A lacerated injury on the right index finger 1 cm x 2 cm 7. A cut injury on the left wrist 1 cm x 1 cm 8. A center just below left eye 3 cm x 3 cm" which are incorporated in Ex P8. The above injuries and their effect disclosed that Prakash would appear to have died of shock and haemorrhage due to injury to large blood vessel in the neck and right carotid artery. (d) The Inspector of Theevatti Patti Police Station, P.W.13 took the investigation from P.W.12 and on information, as well as under suspicion, he arrested the accused, examined them and some of the accused gave voluntary confession in the presence of P.W.9, on which some of the material objects such as knife M.O.1, waist cord M.O.18, gold ring M.O.19 belonged to P.Ws 1,2 and the deceased have been recovered under the cover of Mahazaars, including the tape recorder also, for which the accused have no explanation. (e) The Investigating Officer, in order to ascertain the identity of the accused, requested the Judicial Magistrate to conduct test identification parade which was carried out, for men accused by P.W.3 , for women accused by P.W.4. (f) P.W.3 and P.W.4, the Judicial Magistrates had conducted identification parade as per the established procedure and in the identification parade P.Ws.1 and 2 have identified all the accused, as if, they were the persons, who committed theft or dacoity and who committed murder of Prakash and removed the waist cord, cash and tape recorder from the lorry. (f) P.W.3 and P.W.4, the Judicial Magistrates had conducted identification parade as per the established procedure and in the identification parade P.Ws.1 and 2 have identified all the accused, as if, they were the persons, who committed theft or dacoity and who committed murder of Prakash and removed the waist cord, cash and tape recorder from the lorry. The identification parade and the identity of the accused in the identification parade coupled with other materials including the recovery of certain material objects belonged to the deceased as well as the statements of P.W.2 and P.W1 satisfied the Investigating Officer, to come to an conclusion that all the accused formed into an unlawful assembly in order to commit crime, conspiring together that all the accused should be dealt with according to law resulting in the filing of the final report, leading to trial, ending in conviction, which is under challenge in these appeals. 7.Heard Mr. J.Thilagaraj and Mr.S.Paneerselvam, the learned counsel appearing for the appellants and Mr.E.Raja, learned Additional Public Prosecutor for respondent. 8. The learned counsel for the appellants submitted, that the conviction and the sentence slapped by the trial Court, against the appellants as well as non-appealing accused, are liable to be set aside on the following grounds, since the learned trial Judge had not properly appreciated and evaluated the materials in order to reach an unerring conclusion and they are a) that the oral evidence of P.W.1 is not dependable since it had no corroboration even from P.W.2, who is also described as an eye witness b) that even as per the case of prosecution neither P.W1 nor P.W2 had witnessed the incident of murder and therefore in the absence of direct evidence, believing the oral evidence of P.W1, who has not seen the murder, convicting the accused/appellants under Section 302 I.P.C. is prima facie erroneous liable to be set aside. c) that as per the evidence available on record, accused were shown to the witnesses in the police station prior to the test identification parade conducted by the Judicial Magistrates and in this view, the test identification is useless, had no evidentiary value, but unfortunately, the trial Court believed the test identification , convicted all the accused, which requires inference by this Court. d) that none of the witnesses have identified the material objects, said to have belonged to the deceased or P.W.2, as if they belonged to them and the position being so, the conviction based upon the arrest and recovery is against law and e) that the trial Court had assumed and presumed so many things, against the materials available on record and against the Evidence Act and therefore, the conviction based upon surmises and conjectures certainly cannot be labelled as legal conviction. 9. On the above grounds, elaborating the same, by taking us through the materials available on record, including the oral as well as documentary evidence, strenuous and convincing submissions were made by the counsel for the appellants, for acquittal. 10. Per contra, Mr.E.Raja, learned Additional Public Prosecutor submitted that no reason has been projected to eschew the oral evidence of P.W.1, who was in the scene of occurrence, witnessed some of the incidents, which is fully supported and corroborated by the circumstantial evidence,having drawn the strength from the test identification parade, recovery of property etc., which are all very meticulously considered by the trial Court and in this view, the conviction is based upon legal evidence and no interference is required by this Court. Thus, an attempt is made, to canvass the reasonings assigned by the trial Court, for sustaining the conviction, by the learned Additional Public Prosecutor. 11. On 8.6.2000 at about 2.30 a.m., near Thoppur Railway bridge,in Salem Dharmapuri National Highway, there was a dacoity or robbery, when the lorry bearing Registration No.TN-27 E 1028 was driven by Prakash, son of P.W.6, after stopping the same, we find no dispute. Prakash was also murdered on the same day is also not in dispute. 12. Dr.Srinivasan, P.W.5 who conducted the autopsy over the body of deceased Prakash had detailed the number of injuries over his body as herein before mentioned. The doctor had noticed a cut injury on the centre of neck as well as stab injury on the upper right neck below the chin. It seems both the injuries severed the blood vessel, thereby stopping the flow of blood taking away the life of Prakash. On the basis of the injuries noticed and its effect, the opinion given by the doctor for the death of Prakash as incorporated in Ex P8 also is not in dispute. It seems both the injuries severed the blood vessel, thereby stopping the flow of blood taking away the life of Prakash. On the basis of the injuries noticed and its effect, the opinion given by the doctor for the death of Prakash as incorporated in Ex P8 also is not in dispute. Therefore, concluding that Prakash met with homicidal death, we have to proceed further. 13. Admittedly, there was no eye witness for the murder. The prosecution mostly relies upon the circumstantial evidence, depending upon certain circumstances, in addition to the oral evidence of P.W.1 to certain extent, not only to prove the murder but also to prove the other offences. The circumstances relied on by the prosecution are i) P.W1 has seen A2, A4,A5 and A7 on the date of incident who had informed about the murder of Prakash ii) that P.W.1 had identified the accused before the Judicial Magistrates iii) that some of the materials belonged to the deceased, P.W2 had been recovered from some of the accused, on their confession for which, the accused have no explanation . From the above said three circumstances alone, the prosecution wanted to sustain the conviction, which are challenged, on the basis of the evidence available on record, pointing out the improbabilities and inconsistencies by the learned counsel appearing for the appellants. True, there would be some contradictions and omissions, when an eye witness had seen, some of the accused during night hours, who has given evidence at later point of time. We are not going to say, that the case of the prosecution could not be accepted only on the basis of omission or commission or contradictions, if the case is otherwise acceptable, on the basis of the circumstantial evidence. Though the prosecution had claimed that P.W.2 had seen the incident and only from him, his waist cord was removed by one of the accused, he has not supported the case of the prosecution. Unfortunately, he has not been declared as a hostile witness also. Whatever may be the case of the prosecution, as such P.W.2 failed to support the case of the prosecution, and this is the finding of the trial Court also. Thus,we are left with only the oral evidence of P.W.1. 14. Unfortunately, he has not been declared as a hostile witness also. Whatever may be the case of the prosecution, as such P.W.2 failed to support the case of the prosecution, and this is the finding of the trial Court also. Thus,we are left with only the oral evidence of P.W.1. 14. The prosecution can establish its case having single witness also, since the Evidence Act does not mandate that there should be number of witnesses to prove certain fact. The only consideration is, the oral evidence of single witness, here P.W.1, must be dependable, reliable, acceptable, trustworthy, and safe, if not, accepting the single witness, in the absence of corroboration, sustaining the conviction, legally may not be proper. 15. Before going into the veracity of P.W.1 and the attending circumstances, we feel, it would be better to say something about the trial Court's Judgment. The learned trial Judge, proceeded on the basis that whatever stated by P.W.1, whatever pleaded by the prosecution, are all true, probably this view is taken to safeguard the interests of the society, which alone should not be the approach by the legal forum. The materials brought by the prosecution should withstand the test of legal scrutiny, having the force of law. In this case, as rightly submitted by the learned counsel for the appellants, the materials available on the side of the prosecution, were shattered, proved as unworthy, which were not at all taken note of by the learned trial Judge. For the reasons, we are going to assign infra, the test identification parade is worth nothing. The arrest and recovery of certain material objects are make believe affairs and the further fact being, none of the properties, said to have been recovered from the accused on the basis of the alleged confession have not been identified by person concerned. Without considering all these facts, the learned Fast Track Court Judge, only on the basis of the presumption, ignoring the legal defects, which are not supported by the Apex Court Rulings, in our considered opinion, not only erroneously convicted the accused, but also convicted the accused even against the charges framed. 16. Without considering all these facts, the learned Fast Track Court Judge, only on the basis of the presumption, ignoring the legal defects, which are not supported by the Apex Court Rulings, in our considered opinion, not only erroneously convicted the accused, but also convicted the accused even against the charges framed. 16. A1 and A3 were directed to face the charges under Section 302 read with 34 and 120-B IPC as per the charge No.4, and A2 and A5 have been directed to face the charge under Section 302 read with 149 IPC The charge against A6 and A7 is under Section 302 read with 109 IPC The charge against A4 is under Section 302 read with 149 as far as the murder of Prakash is concerned, though they stand charged, for other offences also. Therefore, there must be clear finding, regarding the actual involvement of A1 and A3, for the offence under Section 302 IPC, in addition to the criminal act done by several persons, in furtherance of the common intention. In the same manner, there should be a finding, as to how some of the accused could be implicated under Sections 149 and 109 I.P.C. as the case may be, pointing out, how the ingredients required for those offences, have been made out. Here, the learned trial Judge forgetting the charges framed against the accused, for murder, as mentioned supra convicted and sentenced A1 to A7 under Section 302 IPC, slapped life imprisonment, which is in our considered opinion, is erroneous and not in accordance with the charges framed against them. The purpose of framing charges, is that the accused should know under which Section, he stands charged, and how he is to face the trial thereby projecting the defence and defend the case effectively. Here different kind of charges have been framed, for murder and omnibus finding is given, by the learned trial Judge, only under Section 302 IPC, which is legally unsound, showing the non application of mind, by the learned trial Judge. Ignoring the illegality committed by the learned trial Judge now we would see, whether any offence has been made out against the accused beyond reasonable doubt. 17. P.W.1's evidence: P.W.1 was working as cleaner in the lorry at the time of incident is not in dispute. Therefore, he could be described as an eye witness. Ignoring the illegality committed by the learned trial Judge now we would see, whether any offence has been made out against the accused beyond reasonable doubt. 17. P.W.1's evidence: P.W.1 was working as cleaner in the lorry at the time of incident is not in dispute. Therefore, he could be described as an eye witness. P.W.1 would state that when the lorry, was coming near Thoppur Railway line at about 2.00 a.m., a lady stopped the vehicle, and that lady is A7. It is the further case of P.W.1, that A7 and Prakash went towards western side. He has further stated, that after ten minutes, three persons came to the lorry, and showing the knife, they threatened not only him, but also P.W2 who woke up, on hearing the noise. According to P.W.1, A2 and A5 threatened P.W.2, to stab him, when he attempted to raise voice, thus, silencing P.W.1 and P.W.2, according to P.W.1, A2, A4 and A5 removed the tape recorder(M.O.5) waist cord(M.O.18) from P.W.2, and cash of Rs.1500/-. He has not whispered about the presence of A1, A3 and A6. By going through the oral evidence of P.W.1, it is not known how he identified A2, A4, A5 and A7, since it is an admitted fact, that there was no street light or any other light, in order to identify the accused, where the vehicle was parked. It is not the case of P.W.1, that the parking lamp was burning, or cabin light was burning, which was sufficient to identify the accused. The position being so, relying upon the oral evidence of P.W.1, to identify the accused, as if they have committed robbery or committed murder or restrained the lorry wrongfully, is beyond the scope of law. Regarding the identification of the property also, such as M.O.5, the evidence given by P.W.1, that M.O.1 is tape recorder taken by the accused 2,4,5 is doubtful, since P.W.9 would state,that on the basis of the confession given by A3, M.O.5 was recovered. Though at the first instance, P.W.1 has stated that the tape recorder shown in the Court, was the tape recorder removed from the lorry, as seen from the deposition, he has not identified the same specifically and this was the way of conducting the prosecution. Though at the first instance, P.W.1 has stated that the tape recorder shown in the Court, was the tape recorder removed from the lorry, as seen from the deposition, he has not identified the same specifically and this was the way of conducting the prosecution. During the cross examination, P.W.1 had stated that he is not certain whether this is the tape recorder, removed from the lorry by the accused or not. He would state that the police have also recovered cash of Rs.1,500/-, which was looted from them, but that cash has not seen the light of the day. Though the charges have been framed against A6 and A7 under Section 341 I.P.C. none of the ingredients required for this Section is available in this case, since P.W1 himself has spoken that Prakash himself stopped the lorry, when A7 shown sign, to stop the lorry, and thereafter took her, to elsewhere. Further it is seen from the oral evidence of P.W.1, that it is not his case, that he had identified the accused before the Judicial Magistrates in the test identification parade. In a serious crime of this nature, the prosecution had failed in its duty, to elicit from P.W.1 regarding the role played by him, in the identification parade, to rely upon the test identification parade, in order to secure conviction. But contrary to the evidence given before this Court, P.W1 appears to have identified, all the accused, before the Judicial Magistrates, which cannot be correct, which we will discuss infra also. It is not the case of the prosecution that P.W.1 had seen A1, A3 and A6 also, in the scene of occurrence. The position being so, it is not known how P.W.1 could have identified A1, A3 and A6 also in the identification parade, conducted by P.Ws3 and 4. How P.W.1 had identified all the accused, is brought to surface which we will discuss under the heading test identification parade. P.W.1 has not also identified the waist cord said to have been removed by one of the accused, which is said to have been removed from P.W.2. It is elicited during the cross examination from P.W.1, that he had seen A2, A4, A5 and A7 alone and he had not seen any other accused,at the time of incident. P.W.1 has not also identified the waist cord said to have been removed by one of the accused, which is said to have been removed from P.W.2. It is elicited during the cross examination from P.W.1, that he had seen A2, A4, A5 and A7 alone and he had not seen any other accused,at the time of incident. Thus,once again,a doubt had arisen,spontaneously in the minds of the Court how P.W.1 could have identified the other accused,in the test identification parade, as indicated above. Without analysing these points, which are available in the deposition of P.W.1, the learned trial Judge believed P.W.1, as if he had seen all the accused and convicted all the accused, under Section 302 I.P.C. directly, which is also not the case of the prosecution. In the light of the discussion, in our considered opinion, P.W.1 is not a dependable witness, and his evidence is not trustworthy commanding respect, leading to conviction under any of the offence reported against the accused. 18. Test Identification Parade: Under Section 9 of the Indian Evidence Act, if the identify of the accused is established, that is relevant to decide the facts in issue. In this view alone, test identification parade takes its main role, in a criminal case. If an incident had taken place during the night hours, when the offenders are strangers to the victim, then the judicial precedent mandates, that the accused must be identified, by the victim or an eye witness, as the case may be. If the witness had seen the offender, though he has no idea about the name and other particulars of the offender, he had the chance to see his figure,height, body shape etc. Under these circumstances, generally it is expected,when a complaint is preferred the complainants should give the identification of the accused atleast the minimum requirement, so as to say, that he could identify, at a later point of time, when the accused are apprehended. In this case, though P.W.1 claimed, that he had seen four accused, while preferring the complaint , he has not given any identification. In this view naturally, a question should arise, how this man could identify the accused at a later point of time. In this case, though P.W.1 claimed, that he had seen four accused, while preferring the complaint , he has not given any identification. In this view naturally, a question should arise, how this man could identify the accused at a later point of time. It may be said, by his memory and impression he retained at the time of incident, on seeing the offender,by perception entertained so, having more skill and memory, one could identify the person, though he has not stated the identification in the complaint. For that also, it should be shown, that before the identification, after the incident, the witness had no chance or occasion to see the accused, or his photograph or he had no instructions from other source, regarding the identity of the accused. If these things are fulfilled then the identification parade would have its evidentiary value, not otherwise. 19. In Mahendra Singh-vs-State of U.P.(1991 Crl.L.J 1381) a Division Bench of Allahabad High Court, has held that even negatively, that if no link evidence by the prosecution, to show that the accused was not shown to any prosecution witness, before identification,benefit of doubt could be given to accused. The relevant portion reads thus: "The prosecution has, however, not given any link evidence to prove that Mahendra Singh alias Birendra Singh was brought Baparda from Jail on that date and was kept Baparda till he was again lodged in jail the same day and he was not shown to any prosecution witnesses on that day. The case of Mahendra Singh has been that he had been shown to the witnesses. In view of this lapse on the part of the prosecution, we have no option but to give the benefit of doubt to him". 20. In Ganpat Singh and others-vs- State of Rajasthan(1998 Supreme Court Cases (cri) 201), it is held by the Hon'ble Judges of the Supreme Court, that if the accused had shown to the eye witness in police station, who later identified the accused in test identification parade, no reliance could be placed on such identification. The relevant portion reads thus: "In the cross examination he stated that he, along with Girdhar Gopal (PW1) and two others, were taken to the police station where three persons were kept detained and that they were asked by the police officers to identify them in jail. The relevant portion reads thus: "In the cross examination he stated that he, along with Girdhar Gopal (PW1) and two others, were taken to the police station where three persons were kept detained and that they were asked by the police officers to identify them in jail. It is not in dispute that those three persons were the appellants; and when they were shown to P.W.1 who later identified them in the parade no reliance can be placed on such identification and consequently the evidence of P.W.1 regarding identification of the appellants in court after one year cannot also be safely relied upon". 21. In Shaikh Umar Ahmed Shaikh and another-vs- State of Maharashtra(1998 Supreme Court Cases(cri)1276), it is held by the Apex Court of this land that where suspects already shown to the witness before the test identification parade their identification in Court becomes valueless and on that basis conviction cannot be sustained. The relevant portion reads thus: " But the question arises: What value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made the basis for recording conviction against the accused". 22. In Ravindra Alias Ravi Bansi Gohar-vs- State of Maharashtra and others(1998 Supreme Court Cases(cri) 1527)it has been held, when the photographs of suspects shown to the witnesses before the test identification parade, the identification in test identification parade and in the Court became worthless and conviction based solely on such identification is not sustainable. In the case involved in the above ruling, it is seen an identification parade was conducted in lock up of investigation agency and photographs of suspects have been shown to the accused. Considering these facts, it is ruled thus: "Another disturbing feature of the case is that the TI parade was held inside the lock-up of the CID Department of the Bombay Police which was investigating into the case at the material time. Considering these facts, it is ruled thus: "Another disturbing feature of the case is that the TI parade was held inside the lock-up of the CID Department of the Bombay Police which was investigating into the case at the material time. In Hasib-v- State of Bihar, this Court observed that a vital factor for determining the value of an identification parade is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aids or assistance so as to facilitate the identification of the accused concerned. The above observations aptly apply in the facts of the instant case for not only the photographs of the appellants and other accused were shown before the TI parades, but they were held in the lock-up of the investigating agency thereby giving sufficient opportunity to the identifying witnesses of seeing the persons to be identified. Having regard to the fact that the above two identifying witnesses were police constables attached to the police station concerned, it was all the more necessary for the investigating agency to ensure that the TI parade was held in a manner and at a place(preferably in Jail) so as to avoid any criticism about its legitimacy". 23. Having the above principles of law and settled legal position, if we analyse the evidence of P.W.1 who is said to have identified all the accused as per the case of the prosecution, the conclusion should be the test identification parade is valueless, having nil effect, to rope in the accused, with the crime, whatever may be the offences. 24. P.W.1 was very fair in admitting that he had seen all the accused in the police station before the test identification parade and in fact he says that he was directed to appear before the police station for the identification of the accused. The relevant portion in Tamil reads: From the above evidence, it is crystal clear that P.W1 had seen all the accused, on 15.6.2000 in the police station, and in the police station , he was informed by the police that these people are the accused in this case. The relevant portion in Tamil reads: From the above evidence, it is crystal clear that P.W1 had seen all the accused, on 15.6.2000 in the police station, and in the police station , he was informed by the police that these people are the accused in this case. Identification parade was conducted by P.Ws.3 and 4 respectively on 7.7.2000 and 11.7.2000 i.e. after 15.6.2000, on which date the appellants were identified to P.W1, as accused. In view of this established fact, as held by the Apex Court, this identification parade became useless. As herein before mentioned, it is the case of P.W.1, that he had seen only A2,A4 , A5 and A7, at the time of incident. As seen from test identification report, he had identified all the accused, which would clinchingly prove that before P.W1 was asked to identify the accused in the presence of the Judicial Magistrates, he was informed and shown who are all the accused. Only on the basis of the instructions given by the police, in the police station, as if, the appellants and other non appealing accused, are the assailants, P.W1 was able to identify all the accused, though according to him, he had seen only A2, A4 , A5 and A7, at the time of incident. Therefore, in our considered opinion, the identification parade said to have been conducted, in this case, is only an empty formality, to satisfy the requirement of law, but the prosecution failed in their attempt, because of the bad investigation and improper conduct of the trial by the Public Prosecutor before the trial Court. Hence on the basis of the test identification parade also, sustaining the conviction, is impermissible in law. 25. Recovery: It is the case of the prosecution, that M.O.19 belonged to the deceased and the same was recovered, on the basis of the confession given by A1. It is the further case of the prosecution, that M.O.18 belongs to P.W.2, which was recovered on the basis of the confession given by A3. It is the further case of the prosecution that M.O.5 was removed from the lorry, bearing Registration No.TN27 E 1028 which was also recovered on the basis of the confession given by A3. It is the further case of the prosecution, that M.O.18 belongs to P.W.2, which was recovered on the basis of the confession given by A3. It is the further case of the prosecution that M.O.5 was removed from the lorry, bearing Registration No.TN27 E 1028 which was also recovered on the basis of the confession given by A3. According to the prosecution, since the properties belonged to the deceased have been recovered from some of the accused, in law, it should be presumed that they have stolen the same after committing the murder and this circumstance is sufficient to sustain the conviction. The accused have denied the recovery on the basis of the alleged confession. Therefore, unless, the recovery is proved, acceptably and the identity of the properties is made out, as that of the deceased or P.W2, as the case may be, the question of explaining possession by the accused would not arise for consideration and on the basis of failure of the accused, to explain no presumption could be drawn in this case under Section 114 of the Evidence Act. In this context, we have to see the recovery of the above said material objects and their identifications. 26. The proper person who can identify M.O.19 is P.W.6 ie., the father of the deceased Prakash. Then, the other person who could identify this ring must be P.Ws1 and 2, being the person, who accompanied the deceased all along. Neither P.W1 nor P.W2 nor P.W.6 had identified M.O.19, as if, it belonged to the deceased Prakash or they have seen this ring, in the hands of the deceased, at the time, when he was travelling with them or when he went along with A7, after the alleged wrongful restrain. This being the position, on the basis of the alleged recovery assuming it is true, it may not have any effect of roping in the accused with crime, since this circumstance stand aloof, not connecting with the alleged other circumstances. 27. As seen from the oral evidence of P.Ws. 1 and 2 there is not even an attempt made, to show M.O.19, to these witnesses, in order to identify the same, as if it belonged to the deceased.P.W.9 and P.W.13 would state that A1 gave Ex P17, confession and this is the base for the recovery of M.O.19. 27. As seen from the oral evidence of P.Ws. 1 and 2 there is not even an attempt made, to show M.O.19, to these witnesses, in order to identify the same, as if it belonged to the deceased.P.W.9 and P.W.13 would state that A1 gave Ex P17, confession and this is the base for the recovery of M.O.19. It is the case of the Prosecution, that A1 had removed M.O.19, after committing murder of Prakash , pledged the same in Rani Jewellery at Athur. If it is true, the proper person who can speak about the pledge, and his identification, as A1, must be the owner of the Rani Jewellery. For the reasons best known to the prosecution, he has not been examined in this case. For his non examination, an adverse inference has to be drawn against the prosecution, as if, the owner of Rani Jewellery had been examined, he would not have identified A1. Therefore, the story of the prosecution, that M.O.19 was recovered on the basis of the confession given by A1 also remains, as dead letters, without any proof. This being the position, on the basis of the recovery of M.O.19, no accused could be held responsible, for the death of Prakash since admittedly, there is no evidence available against the accused, connecting with the murder. 28. According to the prosecution, M.O.18 belonged to P.W.2. But, he has not identified M.O.18, as if it belonged to him, which was removed or looted from him, at the time of incident on 8.6.2000 at about 2.30 a.m.,. Therefore, on the basis of the alleged recovery of M.O.18 from A3 also, it is not possible, to connect him either with the murder or under Section 397 I.P.C. 29. P.W.9 Village Administrative Officer and P.W.13 Investigating Officer have stated, that A3 was arrested on 15.6.2000 and on the basis of the confession given by him, M.O.5 was recovered. It is the case of P.W.1, that tape recorder fixed in the lorry was removed by A2, A4 and A5. But it is claimed on the basis of the confession given by A3, Tape recorder was recovered. This inconsistency is not explained. Whatever may be inconsistency, the glaring point in this case is, that this tape recorder was not identified, as one which was fixed in the lorry. But it is claimed on the basis of the confession given by A3, Tape recorder was recovered. This inconsistency is not explained. Whatever may be inconsistency, the glaring point in this case is, that this tape recorder was not identified, as one which was fixed in the lorry. The lorry was also not inspected as seen from the records in order to say that the tape recorder was removed from the said lorry. Therefore, the recovery of M.O.15 assuming to be so, there is no evidence that it was fixed in the lorry and removed by the accused. The further fact being, this was not identified by even P.W.1 correctly. In this view of the matter, this recovery fails to support the case of the prosecution. Thus on the basis of the alleged recovery of material objects also, taking the same as circumstance, worthy of credence convicting the accused is not at all possible. 30. As far as A6 is concerned, practically there is nil evidence, whether we are accepting the case of the prosecution or not . Neither P.W1 nor P.W.2 had implicated A6, as if at least, she was present or seen her at the time of the incident. P.W.2 though said to have identified all the accused before Judicial Magistrates, had disowned the entire prosecution case. During the examination, he was unable to identify anyone of the accused. Nothing is recovered, even according to the case of the prosecution from A6 in order to connect her, with the crime. The admitted position, as per the evidence available on record was not considered, whereas the trial Court had convicted this lady also, which is unfortunate and our attempt to find out the reason for conviction also ended in vain. 31. In the case of circumstantial evidence, the expectation of the Court is, that all the circumstances relied on by the prosecution, should be connected with each other without any snap, thereby encircling the accused, not allowing the accused to escape from the clutches of the penal provision. In Balwinder Singh-vs-State of Punjab( 1996 Crl.L.J.883),the Apex Court ruled that " In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. In Balwinder Singh-vs-State of Punjab( 1996 Crl.L.J.883),the Apex Court ruled that " In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof". Having above the said principles in mind, we have analysed the evidence let in by the prosecution, to prove the circumstances, which failed to satisfy our conscious, that circumstances relied on are unavoidably available, to sustain the conviction. For the foregoing reasons, we are of the considered opinion that none of the circumstances relied on by the prosecution is established and therefore, sustaining the conviction is not possible legally. 32. As rightly submitted by the learned counsel for the appellants,there are other unexplained circumstances , in the case of the prosecution, thereby showing that the prosecution case is a twisted one, not based on correct particulars. It seems the murder took place, at one place, and the body was noticed at another place ie., 300 feet away, from the blood stained area. Two jatties and two shirts, were recovered from the scene of occurrence, in addition to a screw driver which is marked as M.O.2. It is not the case of the prosecution, that the accused came to the lorry first, took the screw driver along with them. It is also not the case of the prosecution that the deceased while accompanying A7, took the screw driver. As per the evidence given by P.W.2, this screw driver was in the lorry. Therefore, the prosecution should explain, how the screw driver had been to the scene of occurrence, for which we are unable to find any iota of evidence. It is also not the case of the prosecution that the deceased while accompanying A7, took the screw driver. As per the evidence given by P.W.2, this screw driver was in the lorry. Therefore, the prosecution should explain, how the screw driver had been to the scene of occurrence, for which we are unable to find any iota of evidence. P.W1 says when all the accused came to the lorry, threatened them with knife, he has not seen any blood stains, in the knife. The knives recovered on the basis of the confession also does not contain any blood, as per the serologist's report. Therefore, it is impossible to say, that these weapons were used to commit the murder of Prakash. The Village Administrative Officer-P.W.9, has stated that the screw driver M.O.2 also does contained blood stain. It is not known, why the screw driver was not sent for chemical examination. In this context, we have to see the nature of defence. It is suggested to P.Ws 1 and 2 that Prakash was having heavy cash and there was some dispute between Prakash, and P.Ws 1 and 2, and in order to rob that amount, P.Ws.1 and 2 might have committed the murder of Prakash. Considering the fact that the screw driver, which belonged to the lorry was available at the scene of crime and considering the fact, that two jatties and two shirts were also available in the scene of crime, a doubt arises spontaneously in the mind of the Court whether these people would have involved in the commission of the offence, for which no investigation had been done, properly. Regarding the identification of the material objects also, P.W.1 has given different version, contradicting the recovery of weapons, from the accused on the basis of the alleged confession. Thus, we find irredeemable and irreconcilable materials and contradicting evidence, not only in the oral evidence, but also in the circumstantial evidences relied on also and therefore, we have no option except to set aside the conviction and sentence. The materials available and the inconsistency surfaced automatically, would go to show, that the case has not been properly investigated by the police, and the prosecution has not properly conducted the trial before the trial Court. The materials available and the inconsistency surfaced automatically, would go to show, that the case has not been properly investigated by the police, and the prosecution has not properly conducted the trial before the trial Court. Under the above narrated circumstances, with heavy heart, even in the case of dacoity coupled with murder, which should be viewed very very seriously, where culprits should not be allowed to escape, we are unable to sustain the conviction because of the failure, on the part of the investigating agency to collect proper material and because of the further failure and improper conduct of the trial by the Prosecutor before the trial Court. Under the above said circumstances, all the appeals deserve acceptance and the appellants are to be acquitted. 33. In view of our decision and consequential finding, the question then arises is, whether this benefit should be extended or to be given to non-appealing accused also namely Chinnapaiyan-A3,Kadaiyan-A4,and Panchu alias Panchunathan-A5. In Suresh Chaudhary -vs-State of Bihar(2003 Supreme Court Cases (Cri)801) when this kind of situation had arisen, the Apex Court has taken the view, affirming the previous decisions to extend the benefit of acquittal for non appealing accused also. In this said ruling, it is observed: "The question then arises whether the benefit of this Judgement of ours should be extended to the non-appealing accused, namely, Sona @ Sonwa Chaudhary or not. This Court in a catena of cases has held where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal(See Bijoy Singh.v.State of Bihar). This Court while rendering the above Judgment has placed reliance on some other judgments of this Court in Raja Ram.v.State of M.P, Dandu Lakshmi Reddy.v.State of A.P. and Anil Rai .V.State of Bihar wherein this Court had taken a similar view. This Court while rendering the above Judgment has placed reliance on some other judgments of this Court in Raja Ram.v.State of M.P, Dandu Lakshmi Reddy.v.State of A.P. and Anil Rai .V.State of Bihar wherein this Court had taken a similar view. Following the above dictum of this Court in the Judgments noticed by us hereinabove, we are of the opinion since we have come to the conclusion that no conviction of any accused is possible based on the prosecution case as presented, it becomes our duty to extend the benefit of acquittal in these appeals also to a non-appealing accused, therefore Sona @ Sonwa Chaudhary who is the first accused before the Sessions Court in Sessions Trial No.417 of 1993 and who was the first appellant before the High Court in Crl.A.No.88 of 1995 will also be acquitted of all the charges of which he is found guilty by the two Courts below". Since we have come to the definite conclusion that no conviction of any accused, is possible based on the prosecution case as projected, it is our duty to extend the same benefit to the non-appealing accused also namely A3,A4 and A5. 34. In the result, both appeals are allowed setting aside the conviction and sentence passedin S.C.No.504/2000 on the file of Additional Sessions Judge(Fast Track Court No.II) Salem, not only against the appellants/accused but also setting aside the convictions and sentences regarding the non appealing accused also. All the accused in S.C.No.504 of 2000 are ordered to be released forthwith , if their detention is not required, in any other case.