Judgment N. A. BRITTO, J. ( 1 ) THESE appeals have been filed by : mahesh Rohidas Kinalkar, Joao alias Francis alias Lapit Fernandes, Francis revantrop Dias, and Domnic Matias Dsa who were accused Nos. 3, 4, 5 and 6 in Sessions Case No. 17/1998 before the learned Additional Sessions Judge, mapusa, Goa and who by judgment/order dated 29-9-2003 and 18-10-2003 respectively have been convicted and sentenced under sections 304 (II), 323, 143, 147 r/w 149 I. P. C. to undergo Rigorous Imprisonment for 5 years under section 304 (II) I. P. C. that being the longest period of imprisonment imposed on the said accused. I am informed that the accused who have filed the present appeals have undergone the sentences imposed upon them under different sections and were released thereafter. ( 2 ) THE case of the prosecution, briefly stated, was that on 28-3-1988 at about noon at Poira in Mayem, the accused along with absconding accused nos. 8 and 9 formed unlawful assembly armed with weapons such as knife, iron rods, bamboo dandas and in furtherance of the common object of the said assembly assaulted Vaman Pole alias Daielo/p. W. 17, Megharaj Bhosle/ p. W. 2 and Surendra Haldankar (deceased) and then threw the said Megharaj bhosle/p. W. 2 and Surendra Haldankar (deceased) into the rivulet and while they attempted to swim, the accused threw stones on them and as a result the said Surendra (deceased got drowned into the rivulet and died while megharaj/p. W. 2 saved himself by swimming across the rivulet. ( 3 ) THE learned Additional Sessions Judge convicted and sentenced, as already stated, the first 7 accused, accused Nos. 8 and 9 having been absconding. Again, as already stated, all the convicted and sentenced accused have undergone the sentences imposed upon them but only the accused/ appellants herein have chosen to contest their conviction. ( 4 ) THE scene of offence as can be gathered from the evidence of P. W. 4/ vishwanath P. Volvoikar, P. W. 7/chandrakant Pal and P. W. 13/k. Chandra and the documents produced by them, is near a rivulet, a tributary of river mandovi crossing between Poira on the northern side and Podval (Sinquerim) on the southern side. There was a narrow wooden bridge connecting both the sides of the said rivulet, where the alleged incident took place. There was a narrow wooden bridge connecting both the sides of the said rivulet, where the alleged incident took place. There was a shed on the Poira side at a distance of about 20/23 meters from the said wooden bridge where P. W. 17/vaman Pole and the deceased Surendra were stated to have been sitting. The said shed was alleged to have been used by p. W. 17/vaman Pole as a shelter as well as by others waiting for the bus. The said P. W. 17/vaman Pole was also stated to have been a toll Collector collecting toll from the persons crossing the bridge, on behalf of the villagers. The alleged incident took place soon after P. W. 2/megharaj reached near the said shed and it was further alleged by the prosecution that it is A-1 / Sajjan who came with his Tata Sumo jeep along with the remaining accused and assaulted the said P. W. 2/megharaj, P. W. 18/rajesh Panjikar as well as the deceased. P. W. 17/vaman Pole was stated to have been catching crabs standing on the " bandh" at a distance of about 3 meters on the Podval side of the said wooden bridge. ( 5 ) THE case of the prosecution, as far as the present accused are concerned, was based on the evidence of the said P. W. 2/megharaj, P. W. 17/ vaman Pole and P. W. 18/rajesh Panjikar. Admittedly, except A-1/sajjan none of the accused were persons known to the said eye-witnesses, and, therefore, a test identification parade was held by P. W. 12/s. J. M. Shekhar Usgaonkar. It was the case of the prosecution that some of the accused were identified by the said 3 eye-witnesses, namely, P. W. 2/megharaj, P. W. 17/vaman Pole and p. W. 18/rajesh Panjikar at the said test identification parade. ( 6 ) P. W. 17/vaman Pole lodged the first information report at about 14. 30 hours on the same day which was registered by P. W. 23/mangaldas Dessai, the then Police Inspector of Bicholim Police Station. The dead body of Surendra haldankar was recovered from the rivulet and inquest was held at about 7. ( 6 ) P. W. 17/vaman Pole lodged the first information report at about 14. 30 hours on the same day which was registered by P. W. 23/mangaldas Dessai, the then Police Inspector of Bicholim Police Station. The dead body of Surendra haldankar was recovered from the rivulet and inquest was held at about 7. 15 p. m. It appears that prior to the said dead body was found search was made for the said dead-body by the villagers as well as the Fire Brigade but there were some problems created to the police in carrying out the inquest by about 500 villagers who had gathered at the scene and the inquest was completed only after the Executive Magistrate Shri Borkar intervened and who was called to the scene by P. W. 23/dy. S. P. Mangaldas Dessai. ( 7 ) THE prosecution had examined in all 28 witnesses to prove the charge against the accused. One person was examined as a Court witness and A-1 / sajjan also examined a defence witness. ( 8 ) P. W. 2/megahraj Bhosle was medically examined by P. W. 19/dr. Sabrina falcao at the P. H. C. Aldona and who found on him 5 injuries namely, one abrasion of the left subcoastal region, another abrasion also on the left subcoastal region, clotting of blood in the right nostril, congestion of the right eye and swelling the upper lip. According to P. W. 19/dr. Sabrina Falcao the said injuries were caused by hard and blunt object, P. W. 8/dr. E. J. Rodrigues conducted the post-mortem examination of deceased Surendra Haldankar on 29-3-1998 and according to him the deceased Surendra had bruises on the left side temporal region of the skull as well as on the upper part of left ear lobule. He had also an abrasion near the left ear lobule and a bruise on lower lip. As per Dr. Rodrigues, the said four injuries were caused by blunt force impact and were ante mortem in nature. As per Dr. Rodrigues, the deceased died due to asphysia as a result of drowning in water associated with head injury caused by blunt force impact. According to Dr. Rodrigues the first injury-bruise on the left side temporal region of the skull of the deceased could not be caused by fist blows or by slaps and it had to be caused by a hard and blunt object. According to Dr. Rodrigues the first injury-bruise on the left side temporal region of the skull of the deceased could not be caused by fist blows or by slaps and it had to be caused by a hard and blunt object. The injury Nos. 2, 3 and 4, as per Dr. Rodrigues, were caused by fist blows. At this stage it may be noted that none of the said 3 eye-witnesses have spoken that the deceased was hit by any hard and blunt object. ( 9 ) THE learned Additional Sessions Judge has accepted the evidence given by P. W. 2/megharaj, P. W. 17/vaman Pole and P. W. 18/rajesh Panjikar and has observed that P. W. 2/megharaj and the deceased Surendra were initially assaulted with fist blows, slaps and kicks and in that condition the bodies were lifted and thrown in the river and followed by pelting of stones. The learned Additional Sessions Judge has also accepted the evidence of P. W. 11/ umeshkant Tari and P. W. 15/devidas Panjikar and has concluded that A-1/ sajjan had come near the wooden bridge in a white colour Tata jeep along with others and assaulted P. W. 2/megharaj and the deceased Surendra haldankar and had left the spot by crossing the Narva ferry and thereafter the ferry to Old Goa. Here, it may be stated that according to P. W. 15/devidas panjikar he had seen A-1 /sajjan driving the said jeep but he could not see the other persons as the vehicle was in a fast speed and the glasses were put up. The said jeep had also tinted glasses. ( 10 ) THE only question raised before this Court is that the present accused (appellants) were not sufficiently identified by the said 3 witnesses of the prosecution namely, P. W. 2/megharaj, P. W. 17/vaman Pole and P. W. 18/ rajesh Panjikar and, therefore, could not have been convicted and sentenced by the learned Additional Sessions Judge. It is also submitted that a test identification parade was full of defects and, therefore, the identification by the said witnesses at the parade held by P. W. 12/s. J. M. Shekhar Usgaonkar could not be accepted. It is also submitted that a test identification parade was full of defects and, therefore, the identification by the said witnesses at the parade held by P. W. 12/s. J. M. Shekhar Usgaonkar could not be accepted. ( 11 ) P. W. 2/megharaj Bhosle, who is the injured himself, did not identify any of the accused at the test identification parade, as can be seen from the evidence of P. W. 12/s. J. M. Shekhar Usgaonkar. P. W. 2/meghraj also did not identify any of these accused before the Court of the learned Additional Sessions judge. P. W. 2/megharaj Bhosle stated that he was working at the relevant time at vasco-da-Gama and on that day, he had come to Podwal because it was gudi Padwa day and thereafter he had gone to the tar at the crossing at 12 p. m. , when he saw a white colour vehicle coming to that place, the number of which he did not know and from where 8 to 10 persons got down and one of them (A-1 /sajjan) questioned him as to who was the person who was collecting the toll and he told that it was P. W. 17/vaman Pole. He further stated that thereafter he questioned them as to why then wanted the said information when A-1/sajjan gave a fist blow on his face and one of the other person gave a fist blow on his eye and then he sat on the ground and rested his head on the canoe due to pain and when somebody was passing by that side, one of the accused who had got down from the jeep said that it was daielo (P. W. 17) and then stated "dhora Dhord (catch, catch) and about 6 to 7 persons ran after him and the said 6 to 7 persons chased the said P. W. 17 (Daielo) and then all of them started assaulting him with kicks and fist blows. Needless to observe, except A-1/sajjan, P. W. 2/megharaj did not identify any of the remaining accused either at the test identification parade or before the learned Additional Sessions Judge and in such a situation a, in my view, the evidence of P. W. 2/megharaj could not have been accepted regarding the complicity of the present accused in the alleged assault against P. W. 2/ megharaj and the deceased Haldankar. ( 12 ) P. W. 17/vaman Pole alias Deielo is alleged to have identified, at the test identification parade, A-1 /damodar and A-3/mahesh. He identified A-1 / sayan as a person working as a passenger (conductor?) plying from Bicholim to Madel Chorao and vice versa and A-2/damodar and A-3/mahesh as the persons who came to assault him but he escaped from their attack. Before the Court P. W. 17/vaman Pole stated that he saw the vehicle namely, a sumo four wheeler white in colour and having tinted black glasses and registration no. GA-01-J-5454, from the window of the hut (shed) and it stopped about 8 meters away from the said shed. According to him, three persons got down and they are A-1/sajjan, A-2/damodar and A-3/mahesh and they started questioning something to P. W. 2/megharaj and the deceased Surendra and then they started assaulting P. W. 2/magharaj and Surendra with fist blows, and when he came out at that time 5 to 6 more persons got down from the jeep and when he was going to tell the villagers they started running after him and he went towards the slope, about 40 to 50 meters away from the spot and they returned back and assaulted P. W. 2/megharaj with fist blows and threw him in the water and he saw A-1/sajjan, A-5/francis and A-7/adam throwing P. W. 2/megharaj in water and then P. W. 2/megharaj swam and came to the shore and then they assaulted the said Surendra, and, all the accused threw Surendra in water and then A-1/sajjan threw a stone on surendra which he could see from the slope as there was no obstruction to the visibility. He further stated that thereafter P. W. 2/megharaj came towards him and he was having an injury to his stomach and the said Surendra was drowned in the water and then he went towards the village where he met charudat, Vishwanath and Mahendra, etc. to whom he told that Surendra was thrown in water and then he went to his house informed his family members, again came to the spot and thereafter went to the Police Station to lodge the complaint. He stated that he had identified accused Nos. 1, 2, 3, 5 and 7 in the test identification parade. to whom he told that Surendra was thrown in water and then he went to his house informed his family members, again came to the spot and thereafter went to the Police Station to lodge the complaint. He stated that he had identified accused Nos. 1, 2, 3, 5 and 7 in the test identification parade. Needless to say, the evidence of identification of p. W. 17/vaman Pole before the Court was not in time with the evidence of identification at the T. I. Parade. ( 13 ) P. W. 18/rajesh Panjikar is a witness who was on the other side of the wooden bridge, catching crabs. According to him, at about 12 noon he saw a white colour Sumo jeep coming near the shed at Poira side and first 2 and 3 persons got down followed by 5 to 6 persons and in all there were about 8 to 10 persons who came out of the jeep and they went towards the shed and started assaulting Surendra (deceased) and Megharaj (P. W. 2) and at that time he saw (P. W. 17/vaman Pole coming out of the hut (shed) and walking towards the bridge and then he saw the said persons chasing P. W. 17/vaman upto the slope and thereafter they returned back. According to him, A-1/ sajjan and 5 more persons had chased P. W. 17/vaman and there were more persons assaulting near the hut the said Surendra (deceased) and the said p. W. 2/megharaj and they v/ere assaulting them by hands and 5 others also came to the spot and they started assaulting the said P. W. 2/magharaj and the said Surendra and about 4 persons, caught hold of P. W. 2/megharaj who was thrown in water. According to him they assaulted P. W. 2/megharaj and surendra (deceased) thoroughly (jam kele) and thereafter A-1/sajjan and 3 more persons lifted Surendra and threw him in the water and on seeing P. W. 2/megharaj and Surendra swimming all the 8 persons started throwing stones on them and while P. W. 2/megharaj came to the shore Surendra got drowned in the water and thereafter the accused sat in the jeep and went away. ( 14 ) AT the test identification parade P. W. 18/rajesh had identified A-1/ sajjan, A-2/damodas and A-3/mahesh as the 3 persons who came in a Tata sumo vehicle and had started beating P. W. 2/megharaj and deceased Surendra haldankar. He had also stated that at the time he had also seen P. W. 17/ vaman Pole running for shelter while P. W. 2/megharaj and deceased Surender were assaulted and he had also seen P. W. 2/megharaj and Surendra (deceased) thrown in the river and he had also seen P. W. 2/megharaj coming out of the water after swimming and Surendra had died in the water. However, it is interesting to note that P. W. 18/rajesh did not identify any of the accused except A-1/ Sajjan before the Court. The version given by him before the Court, as already seen, is that A-1/sajjan and 5 others had come on the spot and started assaulting P. W. 2/megharaj, and Surendra and 4 others caught hold of P. W. 2/megharaj and threw him in the water. He has stated that 3 more persons lifted Surendra and threw him in the water but surprisingly chose not to identify any of the accused Nos. 2 to 7 as the said 5 persons who assaulted P. W. 2/megharaj and the deceased Surender or the 4 persons who threw P. W. 2/megharaj in the water. In the view, the evidence of P. W. 18/ rajesh could not have been accepted to prove the complicity of the present accused along with A-1/sajjan in the alleged incident of assaulting P. W. 2/ megharaj and the deceased Surendra and throwing them in the rivulet. ( 15 ) THE Honble Supreme Court in a catena of decisions has stated that the identification parades are primarily not meant for the courts and they are meant for identification purposes during the time of investigations, their object being twofold. First, enable the witnesses to satisfy themselves that a prisoner or accused whom they suspect is really one who was seen by them in connection with the commission of the crime and the second is to satisfy the investigating authorities that the suspect of the accused is the real person whom the witnesses had seen in connection with the said occurrence. Another purpose of a test identification parade is to test and strengthen the trustworthiness of the evidence given before the Court because it is considered as a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in Court as to the identify of the accused who are strangers to them in the form of earlier identification proceedings. ( 16 ) HERE we have a case where P. W. 2/ Megharaj did not identify the present accused either at the T. I. Parade or before the Court It is also a case where there is no consistency of identification at the T. I. Parade and before the court, as far as P. W. 17/vaman Pole is concerned. And it is also a case where p. W. 18/rajesh who might have identified some of the accused at the parade held, but failed to identify the present accused before the Court, and, this being the position the evidence of the aforesaid witnesses could not have been accepted that any of the present accused had participated in the commission of the offences alleged against them along with A-1/sajjan. ( 17 ) REVERTING to the evidence of P. W. 17/vaman Pole, he had identified a-1 / Sajjan as a person who was working as a conductor of the said bus plying between Bicholim and Mayem Chorao and A-2/damodar and A-3/mahesh as the persons who had come to assault him. He did not refer to any of the present accused having assaulted either P. W. 2/megharaj or the deceased Surendra. ( 18 ) IN the above context reference could be made to the case of (Budhsen and another v. State of U. P.), A. I. R. 1970 S. C. 1321 wherein the Supreme Court has stated that facts which establish the identity of an accused person are relevant under section 9. As a general rule the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, is to test and strengthen the trustworthiness of that evidence (emphasis supplied ). There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroborations. ( 19 ) AS far as the test identification parade is concerned the least said, would be better. P. W. 12/sjm Shekhar Usgaonkar stated that 8 persons were brought to his office at 8. 45 a. m. but he came to the office at 10. 30 a. m. and, if that is so one fails to understand as to how P. W. 12/s. J. M. Shekhar Usgaonkar could ever say that 8 persons were brought to his office at 8. 45 a. m. According to him the identification was done in two phases. In the first phase 4 accused were paraded and in the second phase the other 4 accused were paraded while the 13 dummies in both the phases remained the same and not only that they had stood at the same place and only the places of the accused were changed. P. W. 12/s. J. M. Shekhar usgaonkar stated that he was aware of the guidelines issued in the criminal Manual (issued by this Court) but ultimately admitted that at every identification parade the dummies had to be different and that he had not carried out the said identification parade as per the procedure laid down in the Criminal Manual. He admitted that he did not question the identifying witnesses as to whether they had seen the accused after the incident and before the parade. He stated that he had questioned the identifying witnesses as to whether they had seen the accused after the incident and before the commencement of identification parade but stated that he had not mentioned this fact in the memorandum, as he felt that it was not necessary. He could not say how many persons from the dummies were having beard or how many of them had similar built, height, etc. He could not say how many persons from the dummies were having beard or how many of them had similar built, height, etc. He had admitted that A-1/sajjan had requested him to allow him to remove the beard but he had declined his request as it was not possible at that time. He admitted that he did not ask any of the suspected persons if they were having any objection for the dummies participating in the parade. He concluded by stating that during the entire parade the order of the dummies had remained the same. According to P. W. 2/megharaj the Magistrate was sitting and so also all other persons who were present in the room were sitting. He stated that some persons were having beard but could not specify their number. He also stated that he came to know the name of A-1 as sajjan when the Magistrate called his name. He further stated that he did not touch the person to be identified but had just pointed out the person. According to P. W. 17/vaman Pole when he was taken to the hall where the identification parade was held there were about 10 to 12 persons some of whom were sitting and some of whom were standing and some were standing by the side, 3 meters away from him. In further cross-examination he stated that there were about 12 persons sitting along with A-3/mahesh and one person was standing. He also stated that he did not remember as to how many times he was taken inside the room for identification. P. W. 18/rajesh stated that when he was called inside, the Magistrate was sitting at the dais and the room was packed. According to him by the side of the Magistrate there were 2 more persons sitting and in front many more persons were sitting. He could not give the exact number of persons who were sitting even by approximation. He further stated that he did not count the number of persons who were sitting and he could also not say who was sitting next to the Magistrate. He could not give the exact number of persons who were sitting even by approximation. He further stated that he did not count the number of persons who were sitting and he could also not say who was sitting next to the Magistrate. A combined reading of the evidence of the special Judicial Magistrate Shri Usgaonkar and the identifying witnesses gives a clear impression that no parade as required under the procedure laid down in the Criminal Manual was held and not only that, the evidence also gives an impression that the parade was organised not in an orderly but chaotic manner and even if there was an identification at such a parade the same could not have led any assurance to the identification made by the witnesses before the trial Court. ( 20 ) PARA 16 at page 23 of the Criminal Manual gives the procedure which a magistrate is required to follow whilst conducting a test identification parade. The guidelines are meant to be illustrative and not exhaustive and the exercise of discretion has been made the sole criterion. It appears that the guidelines were given a complete go by and in such a situation it cannot be accepted that either P. W. 17/vaman Pole or P. W. 2/megharaj had sufficiently identified the present accused at the T. I. Parade. ( 21 ) IN the case of (Thambi Nasirv. State), 2003 (Supp.) Bom. C. R. (P. B.)657 : 2003 Cri. L. J. 493 this Court stated that the number of dummies per accused should be in the ratio of 1:4 or 1:6 which ratio was not apparently maintained by the S. J. M. In the case of (Vilas V. Patil v. The State of Maharashtra), 1997 (Supp.) Bom. C. R. 152 : 1996 Cri. L. J. 1854 a Division Bench of this Court has held that the instructions contained in a Criminal Manual for conducting identification parades are not statutory but have been consistently followed to ensure a fair and unassailable identification parade and in the case of non-compliance of the said instructions identification evidence cannot be accepted. In the case of (State of Maharashtra v. Arjun Umaji bansode) 2004 (2) Bom. C. R. (Cri.) 722 : 2004 All. In the case of (State of Maharashtra v. Arjun Umaji bansode) 2004 (2) Bom. C. R. (Cri.) 722 : 2004 All. M. R. (Cri.) 2683 another Division Bench of this Court held that in cases where dummies are not identical to the accused or in cases where police take active interest where the parade is held, the evidence of such identification parade cannot be relied upon. As already stated the test identification parade in this case appears to have been held in great confusion as none of the witnesses examined have given a correct account as to how it was held and in such a case even if there was identification at such parade, the same could not have inspired confidence in case the witnesses who had identified the accused at the parade had also identified the accused before the Court. ( 22 ) IN my view and for reasons stated hereinabove the present accused ought to have been given benefit of doubt. Consequently I hereby allow the appeals and set aside the conviction and sentence recorded against them by the learned Additional Sessions Judge. Accordingly, the accused shall stand acquitted under sections 304 (II ). 323, 143, 147 r/w 34 I. P. C. No costs. Appeal allowed.