Judgment ( 1 ) THE appellants were charged for offences punishable under section 395, read with section 397 of the Indian Penal Code, for committing robbery and dacoity. Prosecution story advances as follows:- ( 2 ) THANEDAR Shri S. S. Adhao recorded the First Information Report stating that he had recorded the statement of victim Sudhakar, and based thereon, lodged the First Information Report. The First Information Report consists of a version that Sudhakar Kondbaji Raut and three others were assaulted by Pardhis at the outskirts of village Sawar on the Sawar-Wai Road. Victims had suffered injuries, and were referred for medical examination and treatment. Sudhakar Kondbaji Raut, who is a labourer by occupation, has stated to the Thanedar that he was doing the work of digging at Yavatmal as a labourer. One Gaikwad, a resident of Asagaon Devi, approached him fifteen days prior, took him to his house and informed that the Pardhis of village Sawar are having 10740 silver coins, and asked for searching a buyer. After 2-3 days, the complainant disclosed to his employer-Sandeep Kapse about the silver coins, on which Sandeep told him not to reveal this information to others, and thereupon Sandeep and the complainant went to the Pardhi Beda at sawar, where a Pardhi, by name Pawar, offered to sell the entire lot of 10740 silver coins for Rs. 05,00,000-00. Accordingly, at about 6-00 p. m. , on the day of incident, complainant, Sandeep and Haribhau Kapses elder son, went by another jeep to Sawar. On way, Sandeep purchased a big liquor bottle. At about 7-00 p. m. , they stopped the vehicle between Wai (Hatola) and Sawar and waited for the Pardhis. When Sandeep demanded the silver coins for verification, 4-5 companions of the Pardhis hiding in the dark suddenly appeared and assaulted them, snatched the bag containing five-lakh rupees, did not give any number of silver coins and, thus, the offence of robbery and dacoity was committed. ( 3 ) POLICE carried out the investigation. In the First Information Report, names or identification of any of the accused persons were not given. This situation has led the investigating machinery to move forward for identification parade, whereupon they have isolated the charge against the accused who are tried. ( 4 ) ON the basis of identification of the accused persons, they were chargesheeted. In the First Information Report, names or identification of any of the accused persons were not given. This situation has led the investigating machinery to move forward for identification parade, whereupon they have isolated the charge against the accused who are tried. ( 4 ) ON the basis of identification of the accused persons, they were chargesheeted. Ultimately, accused No. 2 has been acquitted, while others are convicted. ( 5 ) PROSECUTION story, as was built before the Court, apart from what was represented in the First Information Report, consists of some additions. These additions seem to be either what the police explored, or what the witnesses have stated before the Court. ( 6 ) IMPORTANT witnesses of the incident are (1) Sandeep Kapse, whose money was robbed, who is PW 8, and (2) Sudhakar Kondbaji Raut (PW 11), the complainant, who is the person to whom the Pardhis had first approached for sale of silver coins, and at whose behest, Sandeep Kapse (PW8) and his brother- pradeep Kapse (PW 12) were taken to the spot. ( 7 ) IT is seen that since identification was not satisfactorily disclosed in the first Information Report by the complainant, or during investigation by other witnesses, it became necessary for the Investigating Officer to hold Test identification Parade. The witness of Identification Parade is Executive magistrate-Naib Tahsildar-Bhaskar Vaidya (PW 10 ). The question as to whether the witnesses have identified the accused, is to be examined from the evidence of testimonies of all these witnesses. ( 8 ) AS has been earlier mentioned, the story, as incorporated in the First information Report, has been amplified during progress of investigation and in the course of the trial. ( 9 ) THE complainant Sudhakar Raut (PW 11) has narrated the background in his Examination-in-Chief in Para 1, more or less, similar as to what he had initially stated in the First Information Report, and in later part of his testimony, he has added certain things which need to be referred, which are as follows: -"i disclosed to Sandeep Kapse that some Pardhi persons were selling silver coins whether he intend to purchase it. My master shown his willingness to purchase it. Thereafter Sandeep Kapse, Haribhau Sanap, bharat and me went to Pardhi beda. Thereafter we had inquired to Pardhi persons about the silver coins. My master shown his willingness to purchase it. Thereafter Sandeep Kapse, Haribhau Sanap, bharat and me went to Pardhi beda. Thereafter we had inquired to Pardhi persons about the silver coins. Thereafter they have shown the silver coins and also disclosed price of these coins, at the rate of Rs. 50/- per coin. Total coins were 10,740. Thereafter the price of coins were settled at the rate of Rs. 50/- each total price Rs. 5 lakhs. 2. On 5-3-1998 at that time I myself, Sandeep Kapse, Bharat Kapse, haribhau Sanap went to Pardhi beda, on that day pardhi persons shown us initially 4 silver coins. On that day my master has took Rs. 50,000/- with him for purchasing silver coins but pardhi person did not sell the coins only they have given us 4 silver coins as sample, and to ascertain whether it is silver coins. 3. My master has verify the silver coins with goldsmith and ascertain whether they are real silver coins and thereafter on next day again we 4 persons went to Pardhi beda on 6-3-98. We reached Pardhi beda at 6. 30 p. m. My master has asked pardhi persons about silver coins which were proposed to sell. I again say after 2-3 days of handing over 4 silver coins by Pardhi persons we all went to Pardhi beda at about 6. 30 p. m. . On that day my master has took with him Rs. 50,000/- for purchasing silver coins and my master has asked Pardhi person to sell the coins of Rs. 50,000/- at that time pardhi person refused to sell, and they told us to bring entire amount as agreed and then take the silver coins. They further told if they want to ascertain the reality of the coins took again some coins. On that day pardhi persons have hand over 25 silver coins to my master without consideration. Thereafter on that day we all returned back by taking said coins. 4. Thereafter on next day myself my master and other two persons went to Pardhi beda by taking entire cash amount of Rs. 5 lakhs by putting in urea bag and we reached there at about 6. 30 p. m. We went thereby jeep after seeing our jeep pawar pardhi along with 2-3 persons with him and they told my master whether he has brought the cash with him. 5 lakhs by putting in urea bag and we reached there at about 6. 30 p. m. We went thereby jeep after seeing our jeep pawar pardhi along with 2-3 persons with him and they told my master whether he has brought the cash with him. My master told them he has brought the amount as agreed they Paradhi persons told my master to show the cash. Then my master told him the cash amount is brought with him. Pardhi persons told the cash would be counted in the field not on the road. Thereafter Sandeep Kapse took bag and went towards field. My master shown cash to Pardhi person and further told them to show silver coins. The paradhi persons told my master they are bringing silver coins and want some time. They pardhi persons told my master to count the cash meanwhile they will bring silver coins. Then my master started counting amount. The cash was consisting of 500 denomination some were 100 denomination, and 10 denominations. Then my master told them the bundle of currency notes of Rs. 500, Rs. 100/-, Rs. 50/- and Rs. 10/- denomination each. Meanwhile one of the Pardhi have given single as hur to other Pardhi persons. Immediately 9 to 10 pardhi persons rushed on the spot and surrounded us. Thereafter they started beating us by stick. " (quoted from paras 1 to 4 at page No. 81 to 83 of the Appeal Paper-book ). ( 10 ) ABOVE quoted version of PW 11 is brought on record to corroborate the testimonies of Sandeep Kapse and Pradeep Kapse. Version of these witnesses needs to be referred to. ( 11 ) SANDEEP Kapse has stated in the oral evidence certain things which can be listed as follows:- (a) He knows accused persons by face, but does not tell their number in total or specify them otherwise. (b) Sudhakar and Mangal from his village had come to him to ask whether he was ready to purchase silver coins, and Sudhakar had told that those belonged to Pardhis of village Sawar (Beda ). (c) He went with Sudhakar, Haribhau and Bharat Kapse to Sawar (Beda) by a Maruti car, and three to four persons had come towards them along with Sudhakar, but they did not tell their names. (c) He went with Sudhakar, Haribhau and Bharat Kapse to Sawar (Beda) by a Maruti car, and three to four persons had come towards them along with Sudhakar, but they did not tell their names. (d) This witness has identified these four persons as Accused No. 1- padmasingh, Accused No. 5 - Nirmal Bhosle, Accused No. 4 - manohar Suryabhan Gaikwad and Accused No. 8 - Batwan intaram Pawar. (e) That, Nirmal Rangy a Bhosle had given him four silver coins for ascertaining truthfulness thereof - being made of silver. (f) That, on the next day, Sudhakar told him that he should purchase coins worth Rs. 60,000-00, and they went towards the village of the accused persons who were again called and, in turn, told that he should bring Rs. 5,00,000-00 to purchase entire lot, and offered 25 coins as sample for ascertaining truthfulness thereof. (g) They asked him to bring Rs. 5,00,000-00 on the next day, i. e. , on 6th March, 1998, for purchasing entire silver coins. (h) That, on 6th March 1998, at about 4-00 to 5-00 p. m. , Sudhakar came to his house and all of them went towards village Sawar (Beda) by a jeep along with cash of Rs. 5,00,000-00 kept in urea bag. (i) The jeep was parked near the bridge. (j) Sudhakar went towards Sawar (Beda) and Accused Nos. 1, 4,5 and 8 came with him when at was about 6. 45 p. m. At that time, after discussion, the accused insisted for counting currency notes and that thereafter they will bring the coins. At that time, four persons, who had come, caught them from the back side and gave a single pronouncing as "hur", whereupon 10 to 12 persons came on the spot and started assaulting them. (k) All the accused persons before the Court were seen by him in the light of the jeep. However, he cannot tell exactly which of the accused assaulted him by stick. (l) Accused persons snatched the cash and ran away. (m) Thereafter, his brother Pradeep came near and took them in the jeep to Yavatmal, where they went to Police Station and then to hospital. (n) As to the Dying Declaration, this witness states as follows: - " I was serious therefore Executive Magistrate recorded my statement in form of D. D. it was written as per my say. (m) Thereafter, his brother Pradeep came near and took them in the jeep to Yavatmal, where they went to Police Station and then to hospital. (n) As to the Dying Declaration, this witness states as follows: - " I was serious therefore Executive Magistrate recorded my statement in form of D. D. it was written as per my say. Thereafter I signed on statement after admitting its contents. Its contents are correct. Same is at Exh. 75. Police also recorded my statement. " (quoted from para 4 at page 63 of the Appeal Paper-Book ). (o) The accused persons identified by him during Identification parade were standing at Serial Nos. 5 and 9, 5 and 10, 5 and 8 as well as 5 and 8 respectively during Identification Parade Nos. 1 to 4 and last accused identified by him was at Serial No. 5 in the fifth identification Parade. (p) In the cross-examination, he admitted that it was dark and he could see the accused only in the light of the jeep and that his brother Pradeep did not come towards them till Pardhis assaulted, and he was not able to tell on which side the jeep was standing when the incident took place, and it is true that the incident did not take place on the road. He admitted that he cannot explain as to why his version that the four Pardhis surrounded him and caught from back side is not found in the statement recorded by Police. He has denied that he has stated before the Executive Magistrate as follows: - "10. I have not stated to Executive Magistrate in my statement that in the night of incident at 8. 00 p. m. , while we were coming by jeep from Sawar to Yavatmal about distance of 2 kms. , from sawar 10 to 12 Paradhi persons stopped our jeep and assaulted me on my head, leg. I also not stated to Executive Magistrate that paradhi person removed cash from my pocket and I can identify one of the assailant by his face. The contents of my statement was not read over to me by Executive Magistrate. It is not true to say as per my say Executive Magistrate recorded my statement. I also not stated to Executive Magistrate that paradhi person removed cash from my pocket and I can identify one of the assailant by his face. The contents of my statement was not read over to me by Executive Magistrate. It is not true to say as per my say Executive Magistrate recorded my statement. It is not true to say that I am deposing false no incident has occurred stated by me nor accused have assaulted me nor forcibly took amount from us, and never tell for giving silver coins. " (quoted from para 10 at page 67 of the Appeal Paper-Book) (q) As to the Identification Parade, this witness in his cross- examination states as follows:- "11. 1 do not remember which of the accused was standing in the row at the time of T. I. Parade held by Naib Tahsildar having five parts. At the time of T. I. Parade accused were wearing the same clothes as today on their person. It is not true to say that clothes on the person of Pardhi standing in the row and other persons were wearing different dress. It is not true to say that myself and other 2 witnesses namely Pradeep were sitting in hall where identification parade was held. We reached to yavatmal at about 8. 00 p. m. from Sawarbeda. It is not true to say that for the first time I have identified accused persons before the court (Witness volunteers he has identified the accused in Tahsil Office and on the spot ). It is not true to say that accused did not assault me and others nor they demanded cash amount in exchange of silver coins, nor accused have snatched the cash amount. It is not true to say that I am deposing false. " (quoted from para 11 at page 68 of the Appeal Paper-Book ). ( 12) IN so far as version of witness Pradeep Kapse is concerned, though according to Sandeep Kapse, Pradeep was all throughout sitting in the jeep, this witness gave entire account of the discussion which the accused persons had with sandeep Kapse at the time of meeting before the assault. ( 13 ) THIS witness-Pradeep Kapse has identified only three accused, namely accused No. 4, Accused No. 8 and Accused No. 1. This witness states that he has given a report to Police. ( 13 ) THIS witness-Pradeep Kapse has identified only three accused, namely accused No. 4, Accused No. 8 and Accused No. 1. This witness states that he has given a report to Police. He says that he has seen the incident from a distance of 50 feet. He has identified the witnesses during identification parade, who were standing at Serial Nos. 5 and 9, and admitted that he is unable to identify two accused, whom he had identified during identification parade. He has identified accused persons who were standing at Serial Nos. 5 and 8 in the Identification Parade. In the cross-examination, this witness denies, earlier he had met sudhakar Raut. He also admits that he has not been able to give the names of the pardhis who were brought by Sudhakar Raut. He also does not know whether there were some Pawars amongst Pardhis. Regarding the Identification Parade, this witness has stated as follows :-"it is true that today I cannot say which accused I identified in a first round and in the second round of the identification parade. It is not true that I do not know the persons assaulting my brother and Haribhau Sanap and today I am deposing false. " (quoted from para 6 at pages 91 and 92 of the Appeal Paper-Book ). ( 14 ) THE Identification Parade is sought to be proved by the Executive magistrate-Bhaskar Vaidya (PW 10 ). This witness has given the manner in which identification parade conducted with fine accuracy and precision. ( 15 ) IT is with aforesaid evidence, the learned Sessions Judge found that identification of the accused by all the witnesses, namely Pws 8, 10 and 12, was properly done, that as PW 11 - Sudhakar was working with Sandeeps brother, namely Pradeep, at his stone crusher, he had an occasion to know the accused persons, and that the accused identified by him were proved to be properly identified. In view of the meetings which the witnesses had with the accused persons, according to Trial Judge, witnesses had occasions to observe them and, therefore, the accused were duly identified and hence were properly connected with the offences. ( 16 ) IN this situation, the Trial Court had discarded the plea of alibi by the accused where they denied not only their presence on the scene, but also that they were the residents of village Sawar. ( 16 ) IN this situation, the Trial Court had discarded the plea of alibi by the accused where they denied not only their presence on the scene, but also that they were the residents of village Sawar. The trial Court held that the accused were duly identified and though entire amount robbed was not recovered, the commission of offence by these accused, except accused No. 2, was proved. Trial court, thus, found these accused guilty and convicted and sentenced them by the impugned Judgment. ( 17 ) THIS conviction is challenged by the accused-appellants on the grounds, namely: - (a) That though the robbery of a sum of Rs. 5,00,000-00 is alleged no substantial amount is recovered. The recovery is almost paltry, i. e. , hardly around Rs. 15,000-00, that too from two persons. (b) The accused were, admittedly, not specifically named or identified; lest there was no need of Identification Parade. (c) Sandeep Kapses oral evidence before the Court gets falsified due to the contents of dying declaration of this witness (Exh. 74 ). (d) Identification Parade is totally sham and bogus and testimony of executive Magistrate is so finely accurate to be liable to be regarded as artificial. (e) Fine precision in the statement of Prosecution Witness No. 10 would not ipso facto render the testimony untrustworthy, save and except that the Memorandum of Recording of Identification parade, particularly Memorandum Nos. 3, 4 and 5 corroborate the plea of defence than the story of prosecution. For this purpose, learned Advocate for the Appellants has drawn the attention of the court to the Memoranda of Identification Parade which are at exhs. 58/1, 58/2, 58/3, 58/4 and 58/5. (f) Unfortunately, to the prosecution, the Memoranda of identification Parade render a conclusion that the memoranda were prepared well in advance. The sequence of serial numbers, at which the accused were supposed to stand, were left blank and those have been filled in later on. This grave and shocking circumstance requires the Court to examine the worth of evidence of the Executive Magistrate. (g) The locations where accused stood during different identification parades, i. e. , Sr. Nos. 5,8,9 and 10, out of which locations at Sr. Nos. This grave and shocking circumstance requires the Court to examine the worth of evidence of the Executive Magistrate. (g) The locations where accused stood during different identification parades, i. e. , Sr. Nos. 5,8,9 and 10, out of which locations at Sr. Nos. 5 and 8 are repeated are not just coincidence, but are deliberate and planned acts of the Investigation Officer by hand-in-gloves with PW 10 - the Executive Magistrate or by taking advantage of the fact that this witness had conducted Test identification Parade first time in question, and even had not read the rules and procedure laid down in Criminal Manual about conduct of Test Identification Parade. (h) Apart that the Executive Magistrate, for the first time, in his life, conducted the Identification Parade, and had not read or stated the rules. This fact will not per se vitiate the testimony. However, the fact that the Memoranda of Identification Parade were already ready and names of the accused were later on filled in the locations where they were shown blank, is clearly borne out from his testimony and original record. This concurrence cannot be regarded as a sheer accident or a coincidence. (i) The fact that the names of the accused have been roped in the course of investigation, not on the basis of genuinely conducted identification parade or identification; but for the reasons of truth which are not coming on record, is amply clear. (j) It is seen that in testimony of any of the witnesses, the reasons due to which the imprint of personality or features of identification of the accused were noted by the prosecution witnesses, have not come on record. (k) On the other hand, the manner in which the accused were seen has come under doubt, leaving a sufficient room for the defence to urge that the witnesses had no occasion to observe tenor of the accused persons. ( 18 ) AFTER scrutinizing the evidence and testing it on the oral submissions urged in support of acquittal, what is observed is discussed hereinafter. ( 19 ) SANDEEP Kapses Dying Declaration was recorded which is Exh. 74, in which he has stated that:- In contrast, what Sandeep Kapse has deposed in his Examination-in-Chief, which story corroborates the testimony of Sudhakar Raut, however, is in total departure of what he has stated in the Dying Declaration. ( 19 ) SANDEEP Kapses Dying Declaration was recorded which is Exh. 74, in which he has stated that:- In contrast, what Sandeep Kapse has deposed in his Examination-in-Chief, which story corroborates the testimony of Sudhakar Raut, however, is in total departure of what he has stated in the Dying Declaration. At no point of time, the investigating machinery and prosecution have explained as to why and how this departure has occurred. ( 20) IT is pertinent to note that as is seen from the evidence of these three important witnesses, different witnesses have identified different accused persons. They are also not common and concurrent on the question as to whether there was sufficient illumination, to enable them to identify the accused. ( 21 ) ACCORDING to learned Advocate for Appellants - Mr. Mirza, some effect of the evidence led by the prosecution witnesses about the incident leads to a conclusion that prosecution is not coming forward with a truthful account of the incident. The evidence, that has come on record, does not reveal wholehearted disclosure of truth. The contents of First Information Report, contents of statements recorded by the Police, contents of Dying Declaration when matched with oral evidence, reveal totally different stories which are totally mismatched with each other. According to learned Advocate Mr. Mirza, the investigating machinery, instead of pursuing the investigation to discover the truth, has pursued it to develop a story which is totally new than what was the complaint and, in the result, the prosecution evidence does not rise to the height of proof of the charge framed against the accused persons, based upon the First Information Report and the investigation. The effort of identification is a total failure. According to him, it is not a case where acquittal is sought on the basis of doubt which is entertainable as a reasonable suspicion, however, accused are entitled to acquittal, as there is a total failure on the part of prosecution to prove the story initially opened through the First Information Report. The effort of identification is a total failure. According to him, it is not a case where acquittal is sought on the basis of doubt which is entertainable as a reasonable suspicion, however, accused are entitled to acquittal, as there is a total failure on the part of prosecution to prove the story initially opened through the First Information Report. ( 22 ) LEARNED Advocate for Appellants Shri Mirza placed reliance on following Judgments :- (1) Chittu @ Hemant and two others vs. State of Chattisgarh, 2005 (2) acquittal 237, and (2) Shailendra Zolu Sahare vs. State of Maharashtra (Criminal Appeal No. 468 of 2004) and Vinod Isulal Deshmukh vs. State of maharashtra (Criminal Appeal No. 469 of 2004, both decided on 3rd August, 2005 by this Bench. It shall suffice to refer unreported Judgment of this Court, where this Court has, after taking a resume of various Judgments of Supreme Court, and of different High Courts, summarised the features of rules which govern the proof of facts upon Identification Parade. The tests noted by this Court are as follows:- (a) That the identification of the accused before the Court is of prime importance. (b) Delay in conducting identification parade or identification before the Court would constitute a ground for suspicion. (c) Further sole reliance on test identification parade conducted during investigation would not be permissible. (d) If the complainant or witness had in his memory the identify of the accused engraved or embossed because of the circumstances of the case, identification before the Court alone even if done after years of incident could be sufficient. (e) Identification of unknown accused unless is supported by such engraved impression about the identity could create a suspicion. (f) Identification during test identification parade or even before the court shall get vitiated and would be unreliable if photographs of accused so identified were published in newspapers before such identification. (g) Whether identification done before Court should be ultimately trusted on objectively guided opinion that the trial Court forms after hearing the evidence, and any rigid rule in this Court cannot be formulated or laid down, and it would depend upon facts of each case. By following the same set of rules which this Court has noted as the summary of precedents, this Court finds it proper to get governed by Clauses (d), (f) and (g ). By following the same set of rules which this Court has noted as the summary of precedents, this Court finds it proper to get governed by Clauses (d), (f) and (g ). ( 23 ) LEARNED Additional Public Prosecutor relied upon various reported judgments of the Supreme Court. Those are: (1) Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, AIR 1987 SC 1353 . (2) Devender Pal Singh vs. State of NCT of Delhi and another, (2002) 5 SCC 234 , (3) Gangadhar Behera and others vs. State of orrissa, ( 2002 (7) SCALE 402 , and (4) State of Punjab vs. Karnail Singh, (2003)11 SCC 271 . ( 24 ) THERE amongst four Judgments referred to in forgoing para are relied upon to suggest that the Court should not be guided by a principle that the trial must proceed based on foundation that no innocent person should be convicted. At the same time, Court should bear in mind that no guilty person is left unpunished. The learned Additional Public Prosecutor further urged that the suspicion, beyond which the accused are required to be held guilty, should not be based on hypothesis, and by natural corollary, any such doubt should be supported by facts as brought on record. ( 25 ) THE summary of the Judgments relied upon by the learned Additional public Prosecutor, which are referred to hereinabove, is the binding precedent and there does not exist a room for any doubt. Ultimately, the Court has to find out as to what is the proof of facts in the given case. ( 26 ) LEARNED Additional Public Prosecutor also placed reliance on reported judgment in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others (cited supra), in order to urge that this Court should receive and reciprocate the message given by the Apex Court in various reported judgments, and according to him, the message now propogated in the three reported Judgments where Their Lordships of Supreme Court have cautioned that the Court should not have a hypersensitive approach while allowing the defence to bank upon a doubt based on hypothesis, should be inculcated in behaviour by the Court. There is no room of doubt in need of obeying the message and about need of this message. There is no room of doubt in need of obeying the message and about need of this message. ( 27 ) ON the facts of the case, if the defence wants to make a mountain out of a mole of such act of raising doubt from nothing, it ought not be allowed to do so. According to appellants, it is not a case where the defence would be banking upon benefit of doubt only. According to appellants, the prosecution has to primarily establish the connection between the offence and the accused, failing which it would be a mirage to exert to connect the accused with the crime. ( 28 ) ON the facts which are sought to be proved in the present case, important circumstances, which emerge, are, namely :- (a) The complainants story recorded in First Information Report and the story revealing from Dying Declaration do not involve one ormore specific persons, or a specific persons, or a specific number; (b) the involvement of accused to a large number, namely 16, has grown from a vague figure "pardhis"; (c) the prosecution has made every possible effort to involve large number of persons, however, foundation thereto, namely very identification, is attempted with utmost weakness; (d) unless and until the witnesses are able to give an imprint on the basis of the personality of the accused embedded in their mind, they could never identify the accused; (e) when the accused were not identified, it would grossly unjust to hold them guilty on the basis of most tutored identification done before the Court; (f) it does not matter, after how many years the identification was done, however, the worth of identification has to be proved by the prosecution; (g) in the present case, as the prosecution advanced its case without identification of the accused and moved to take steps to undertake identification parade, which is proved to be superfluous and lifeless. The identification of different accused by different witnesses before the Court is done without any factual foundation of reasons and grounds of such identification which, therefore, becomes unworthy of trust, confidence and credibility. The memoranda of Identification, which are proof of the Test identification, are found to be a craft work than a genuine identification Parade. ( 29 ) IN this situation, the evidence of any of prosecution witnesses does not inspire confidence. The memoranda of Identification, which are proof of the Test identification, are found to be a craft work than a genuine identification Parade. ( 29 ) IN this situation, the evidence of any of prosecution witnesses does not inspire confidence. The prosecution has utterly failed to prove the case against the accused. The manner in which the story has been improved by the prosecution witnesses reveals that the prosecution has either failed to search out the truth, or has the truth within its knowledge, where there exists some dispute in sharing booty of some offence between PW 8 - Sandeep and PW 12 - Pradeep on one hand, and the accused on the other, and the said dispute has resulted in some quarrel which the witnesses are trying to shape and craft as offence charged. Whatever be the truth, surely it is withheld from the Court, and on a story which is built with total artifice the accused were prosecuted, tried and were convicted. The reasons on which accused are involved are totally insufficient, and accused cannot be legally convicted on such evidence. ( 30 ) THE scheme of law is not to convict everyone who is booked. While it is true as a rule of precedent that no guilty men are left free, the ratio of precedent does not accept departure from the cardinal principle that Court has to continue to abide by bounden duty that no one can be convicted barely on suspicion, as well that innocence of accused is to be presumed unless the guilt is proved according to law and by necessary corollary that no innocent persons is punished. ( 31 ) IN the result, all the accused are entitled for acquittal. The Appeal is allowed. The accused are acquitted. Appeal allowed.