Judgment J.C. Upadhyaya, J.—The challenge in Criminal Appeal No. 289 of 2004l is to the judgment and order rendered by learned Additional Sessions Judge, Fast Track Court No. 4, Panchmahals at Godhra on dated 09.01.2004 in Sessions Case No. 168 of 2003. By the impugned judgment and order delivered by the learned Additional Sessions Judge, the appellant-accused came to be convicted for the offences punishable under Sections 395 and 397 of the Indian Penal Code(‘IPC’, for short) and was sentenced to under rigorous imprisonment(‘RI’, for short) for 10 years and fine of Rs. 500/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 395 of the IPC and was sentenced to undergo RI for 7 years and fine of Rs. 500, in default to undergo simple imprisonment for one month for the offence punishable under Section 397 of the IPC. 1. Criminal Appeal No. 420 of 2004 is preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure for enhancement of sentence awarded to the respondent-accused herein by the learned trial Judge in the impugned judgment and order dated 09.01.2004 passed in the aforesaid Sessions Case. 2. The prosecution case in nutshell is as under: 1. One Gopalsinh Jagatsinh Barad(PW-4) was serving as Circle Police Inspector(CPI), Lunawada, District Panchmahals from July, 1988 to 13.03.2001 and he was transferred from Lunawada to Ahmedabad and on the date of incident i.e. on dated 21.3.2001, he was on joining leave and was at Lunawada. As per the prosecution case, Gopalsinh Barad was residing with his wife Hansaben Gopalsinh(PW-2) at Lunawada in Anand Park Society. As Gopalsinh was on joining leave, he returned home from Ahmedabad at about 10.45 p.m. on 20.03.2001. After taking meals with his wife Hansaben, both retired to bed. Meanwhile, at about 10 p.m. two Gram Rakshak Dal(GRD) members named-Parvatsinh Kesrisinh(PW-7) and Takhatsinh Ramsinh(PW-6), who were posted as watchmen, came on their duty on night round in Anand Park Society. It is the prosecution case that at about 4.45 a.m. on 21.03.2001, some 8 to 10 unknown persons broke open the main door of the house and entered into the house. They were armed with sticks, swords, tamanchas etc. Due to this, both Gopalsinh and his wife Hansaben woke up. It is the prosecution case that at about 4.45 a.m. on 21.03.2001, some 8 to 10 unknown persons broke open the main door of the house and entered into the house. They were armed with sticks, swords, tamanchas etc. Due to this, both Gopalsinh and his wife Hansaben woke up. Persons, in all about 8 to 10 in number, entered into their bedroom and they were using abusive language and threatening words too. Gopalsinh was assaulted by one of those persons by pipe on head and 2 to 3 other persons also assaulted on him and he was not allowed to stand up. The key of the locker was demanded from his wife Hansaben. However, she did not give the same, and, therefore, the locker was broken up. One of the persons snatched the mangalsutra, weighing about 3 tolas from Hansaben. Hansaben was also assaluted by sticks and pipes and by the blunt part of tamancha, on her forehead. During the course of this robbery, telephone wire was also cut off with the help of sword. As per the prosecution case, Rs. 32,000/- in cash were looted and the golden ornaments like mangalsutra and chain, as well as certain silver vessels worth Rs. 33,000/- were also looted. That, thus in all, together with cash amount, the property worth Rs. 65,000/- was looted. Thereafter, while leaving the house those robbers, who were 8 to 10 in number, dragged inside the house those two GRD watchmen and while leaving the house, the main door was locked from outside and those robbers who had entered into the house, made their escape good. Thereafter, Hansaben raised alarming shouts, called the neighbors, who came and opened the door. Both the injured Gopalsinh and Hansaben were taken to hospital for treatment. In connection with this offence, Hansaben lodged the First Information Report(‘FIR’, for short), which was registered by the police. The Investigating Police Officer conducted police investigation and recorded statements of witnesses. In presence of panchas, panchnama of the scene of offence was drawn, medical certificates of injured witnesses were obtained. One tempo bearing No. GJ-16U-6210 was recovered. After the completion of investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Lunawada. The Investigating Police Officer conducted police investigation and recorded statements of witnesses. In presence of panchas, panchnama of the scene of offence was drawn, medical certificates of injured witnesses were obtained. One tempo bearing No. GJ-16U-6210 was recovered. After the completion of investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Lunawada. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions Judge, Panchmahals at Godhra, which was numbered as Sessions Case No. 168 of 2003. 2. The learned Additional Sessions Judge framed charge against the appellant-accused in connection with offence punishable under Sections 395 and 397 of the IPC. Since the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the conclusion of the evidence, the learned Judge recorded the further statements of the accused under Section 313 of the Code and the accused generally denied all the allegations leveled against him. The learned Additional Sessions Judge, after considering the evidence on record and after considering the arguments advanced on behalf of both the parties, delivered the impugned judgment on dated 09.01.2004 and came to the conclusion that the prosecution successfully proved the offences charged against the accused, beyond any reasonable doubt and accused came to be convicted for the commission of offences punishable under Section 395 and Section 397 of the IPC and awarded sentence to the accused, as stated above. 3. On behalf of the appellant-accused, learned advocate Mr. Parmar submitted that the learned trial Judge committed serious illegality and irregularity in convicting the appellant-accused in connection with these offences. That the entire case rests upon the question of identification of this accused and considering the depositions of first informant-Hansaben and the witnesses Gopalsinh, Parvatsinh and Takhatsinh, it becomes quite clear that none of the witnesses had opportunity to see the face of the accused at the time of alleged incidence, so that subsequently they can identify the accused, either during the course of Test Identification Parade(‘TIP’, for short) or in the Court during their depositions. That it has come in evidence that the accused had masked his face and there was no possibility by any of the witnesses to see the face of the accused, so that subsequently he can be identified. That it has come in evidence that the accused had masked his face and there was no possibility by any of the witnesses to see the face of the accused, so that subsequently he can be identified. That there is no cogent and convincing evidence as to whether there was availability of any electric light in the house of the first informant so that the miscreants can be subsequently identified. That no description of any accused is given in the FIR. That the present appellant-accused came to be arrested in connection with this offence on the basis of some statement given by one Mayasingh. However, neither the statement of said Mayasingh was recorded nor he was examined as a witness in this case. The accused came to be arrested on dated 28.03.2003 i.e. after about 2 years from the date of incident, as the incident had occurred on dated 21.03.2001. Even the witnesses have admitted in their depositions that during the course of incident, they had not marked any specific feature of the robbers. Despite this, as per the prosecution case, when the TIP was arranged in the office of Executive Magistrate, Mr. Chaturbhai Bariya(PW-10) on dated 01.04.2003, the first informant-Hansaben and her husband witness-Gopalsinh could identify the accused. That considering the deposition of Executive Magistrate Mr.Bariya(PW-10), he categorically admitted that when the accused was brought to his office by police, the accused was made to sit in the corridor, outside his chamber and the witnesses were there in his office. That thus, no proper precautions were taken by the Executive Magistrate Mr.Bariya to see that before the TIP, the accused is not exposed to the witnesses. That even there is a shaky evidence, as to how the two witnesses Hansaben and her husband Gopalsinh remained present in the office of the Executive Magistrate on dated 01.04.2003. That considering the deposition of panch Paresh Parikh(PW-5), one of the panchas of the TIP panchnama(Exhibit 17), he admitted that he is license holder of fair price shop and on dated 01.04.2003, the Executive Magistrate, Mr. Bariya had convened a meeting of fair price shop owners and in connection with that meeting, he had remained present in the office of the Executive Magistrate and he was called as panch to witness the TIP. That thus, panch Paresh Parikh is a selected panch. Bariya had convened a meeting of fair price shop owners and in connection with that meeting, he had remained present in the office of the Executive Magistrate and he was called as panch to witness the TIP. That thus, panch Paresh Parikh is a selected panch. That except the evidence regarding the identification of the accused, which is not free from doubt, there is no evidence whatsoever against the appellant-accused to connect him with the crime. That in the impugned judgment, the learned trial Judge relied upon so-called ‘demonstration panchnama’(Exhibit 11), which is not even admissible in evidence. However, both the panchas Rajesh Meghwani(PW-1) and Chand Dhobi(PW-3) turned hostile, and did not support the contents of the panchnama. Therefore, it is submitted that the appeal preferred by the appellant-accused be allowed and the impugned judgment rendered by the learned trial Judge, convicting the appellant-accused for the offences punishable under Section 395 and Section 397 be set-aside and the appellant-accused be acquitted. 1. In connection with Criminal Appeal No. 420 of 2004 preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure(‘Code’, for short) for enhancement of sentence, it is submitted that as the prosecution failed to adduce any cogent and convincing evidence against the appellant-accused, the appellant-accused deserves acquittal, and therefore, appeal preferred by the State of Gujarat, deserves dismissal. 4. On behalf of the State of Gujarat, learned APP Mr. Mengdey supporting the impugned judgment and order rendered by the learned trial Judge submitted that the appellant accused is rightly convicted for the offence charged against him. That considering the depositions of first informant-Hansaben and her husband Gopalsinh and witnesses Parvatsinh and Takhatsinh, the prosecution successfully proved that at the time of commission of offence of robbery, they had seen this accused and soon after the arrest of this accused, first informant-Hansaben and witness Gopalsinh were called by Executive Magistrate Mr.Bariya to remain present in his office on dated 01.04.2003, and a regular TIP was arranged and this accused Toofansingh came to be identified by these witnesses. That therefore, by clear and cogent evidence adduced by the prosecution, the involvement of the accused in these offences is proved beyond reasonable doubt. That even the witnesses, during the course of their depositions, clearly identified the accused in open Court. There is no reason to doubt their testimonies. That therefore, by clear and cogent evidence adduced by the prosecution, the involvement of the accused in these offences is proved beyond reasonable doubt. That even the witnesses, during the course of their depositions, clearly identified the accused in open Court. There is no reason to doubt their testimonies. Therefore, the appeal preferred by the appellant-accused deserves to be dismissed. 1. In connection with Criminal Appeal No. 420 of 2004 preferred by the State of Gujarat, under Section 377 of the Code, for enhancement of sentence, learned APP Mr.Mengdey submitted that considering the fact that the appellant-accused is habitual offender and committed serious crime of dacoity and while committing the dacoity, caused serious injuries to the witnesses by lethal weapon, the learned trial Judge should have awarded the maximum punishment prescribed for the offences. Therefore, it is submitted that the appeal preferred by the State of Gujarat be allowed. 5. Considering the record of the trial Court and the impugned judgment rendered by the learned trial Judge, there cannot be any dispute about the fact that a robbery had taken place in the house of the first informant-Hansaben and that during the course of the robbery, she, herself and her husband Gopalsinh were assaulted and they sustained bodily injuries. It has also come in evidence that cash of Rs. 32,000/- and certain golden ornaments and silver vessels worth Rs. 33,000/- were robbed by the robbers from the house of the first informant. However, the moot question to be replied by the prosecution is the involvement of the appellant-accused in this robbery. 6. Considering the overall evidence on record, it becomes clear that the entire case against the accused depends upon the identification of the accused. 7. First of all considering the deposition of first informant-Hansaben(PW-2), narrating the incidence, she stated that about 8 to 9 persons(Sardarjis) entered into her house. She further stated that at the time of the incident, electric light of the room, which is used as prayer room and the electric light in the corridor, were on. However, she stated that out of those 8 to 9 robbers, one or two robbers had masked their faces. In her cross-examination, she admitted that in her FIR she has not stated about any description of the robbers, nor any identification marks of any of the robbers have been mentioned by her, in the FIR. However, she stated that out of those 8 to 9 robbers, one or two robbers had masked their faces. In her cross-examination, she admitted that in her FIR she has not stated about any description of the robbers, nor any identification marks of any of the robbers have been mentioned by her, in the FIR. She further stated that in her FIR, she did not state as to how the robbers were looking like and that they were ‘sardarjis’. However, she stated that she herself and her husband were called initially in LCB police office and at that time they had identified some of the accused persons. Thereafter, in the month of April, they were called at the office of Executive Magistrate for identification parade. In this connection, considering the FIR, Exhibit 13, it becomes clear that nowhere, any description of any of the robber is stated by the first informant. It is nowhere stated that before the miscreants entered her house, the light in the house was already on. It is stated in the FIR that those persons who entered her house turned on the light. The only description of the miscreants stated by the first informant in her FIR, Exhibit 13 is general description that the persons who entered her house and committed robbery were of the age group of 22 to 25 years and they had worn pants and shirts and were speaking in gujarati language. It is nowhere stated in the FIR that the persons who entered her house were ‘sardarjis’. Moreover, first informant-Hansaben stated that one or two persons had muffled their faces. It is nowhere made clear that out of the 8 to 10 persons, who entered her house had muffled their faces. It is nowhere made clear that the appellant-accused had not muffled his face. 8. Considering the deposition of witness Gopalsinh Barad(PW-4), he stated that the persons who entered his house had put on turbans. However, in his cross-examination, he pleaded ignorance as to whether in his police statement, he had stated to the police that the persons who entered his house had put on turbans. He stated that at the time of robbery, the electric light of the main-room was on. Again he pleaded his ignorance as to whether he had stated the said fact to the police at the time when his statement was recorded by police. He stated that at the time of robbery, the electric light of the main-room was on. Again he pleaded his ignorance as to whether he had stated the said fact to the police at the time when his statement was recorded by police. About the TIP, he stated that one PSI Mr. Bhuva, telephonically informed him that he had to remain present on 01.04.2003 for TIP of the accused. He admitted that neither Investigating Police Officer, nor the Executive Magistrate issued any summons to him to remain present during the TIP. He admitted in his deposition that he and his wife the first informant-Hansaben jointly identified the accused during the TIP. 9. Considering the deposition of witness Takhatsinh Solanki(PW-6), he stated that at the time of incidence, there was darkness. He categorically admitted that 8 to 10 persons, who were armed with swords, tamancha etc., who entered into the house of the first informant-Hansaben, had masked their faces with cloth. He clearly admitted that as those persons had masked their faces, he could not identify them. Likewise, considering the deposition of witness Parvatsinh(PW-7), he also admitted that all the persons who entered into the house of the first informant had masked their faces. He categorically admitted that as those persons had masked their faces, he could not identify them. 10. The TIP arranged by Executive Magistrate Mr. Bariya on dated 01.04.2003 and the evidence adduced by the prosecution regarding said TIP, is required to be considered in the background of depositions of the first informant-Hansaben, her husband Gopalsinh and witnesses Parvatsinh and Takhatsinh. It becomes clear that in the FIR, Exhibit 13, no proper description of any of the robbers, who entered the house of the first informant has been narrated. During the course of evidence, Hansaben and Gopalsinh described those persons, who entered the house for the purpose of robbery, as ‘sardarjis’. Such important description of the feature of the robbers is missing in the FIR. About the electric light, in the FIR it is stated that after entering into the house the miscreants turned on the light. Whereas, during the course of evidence the witnesses attempted to state that the lights were already on, even before those persons entered into the house. Thus, about the electric light, there is a shaky evidence. About the electric light, in the FIR it is stated that after entering into the house the miscreants turned on the light. Whereas, during the course of evidence the witnesses attempted to state that the lights were already on, even before those persons entered into the house. Thus, about the electric light, there is a shaky evidence. Despite this, even if it is presumed that the lights were on in the house, yet, according to the witnesses Hansaben and Gopalsinh, some of the robbers had masked their faces. Whereas, as per the depositions of witnesses Parvatsinh and Takhatsinh, all had masked their faces. In the instant case, the Court is concerned with appellant-accused Toofansingh, and there is no clear evidence on record as to whether this accused could have been identified by those witnesses. In other words, none of the witnesses deposed in the deposition that this accused had not covered his face by any mask, and therefore, they were able to see his face. Under such circumstance, it becomes very doubtful as to whether these witnesses, whose depositions are very much relied upon by the prosecution, could have ever seen the face of this accused at the time of commission of the offence, so that afterwards during the course of TIP and during the course of their depositions before the Court, they could identify the accused. 11. Considering the deposition of Executive Magistrate Mr. Bariya(PW-10), he stated that on dated 31.03.2003, he received a letter from Investigating Police Officer to arrange TIP. Thereupon, he arranged the TIP on 01.04.2003 at 12.30 p.m. He further stated that on that date, the accused was brought to his office by police at around 12 in the noon. Thereafter, he sent his peon for the purpose of selecting dummies and he specifically instructed to his peon that as far as possible, those dummies should belong to Sikhligar community. That thus, 3 dummies were called and the accused was told to stand up in line along with those dummies. According to him, the witnesses Mr. Gopalsinh Barad and his wife Hansaben identified the accused. In his cross-examination, he admitted that both the panchas, who witnessed the TIP proceeding, were license holders of fair price shops. That he did not find it proper to call any other panchas from public. According to him, the witnesses Mr. Gopalsinh Barad and his wife Hansaben identified the accused. In his cross-examination, he admitted that both the panchas, who witnessed the TIP proceeding, were license holders of fair price shops. That he did not find it proper to call any other panchas from public. He further admitted that when the accused was brought to his office, the accused was handcuffed and was escorted by police. That before the identification parade commenced, the accused was made to sit in the corridor, outside his chamber. 12. Now, according to the deposition of Executive Magistrate, Mr. Bariya(PW-10), when the accused was brought to his office at about 12 in the noon, the accused was handcuffed by police and he was escorted by police. At that time both the witnesses Gopalsinh and his wife Hansaben had come to his office. According to his deposition, test identification proceedings commenced at about 12.30 p.m. Under such circumstances, before the commencement of the proceeding of TIP, it becomes abundantly clear that the Executive Magistrate did not take any precaution to see that the accused is not exposed to the witnesses. He was made to sit in handcuffed position along with escorting police party, outside his chamber in the corridor. The TIP was arranged in his chamber. The witnesses were called in his chamber. About the selection of panchas, Executive Magistrate admitted that both the panchas were license holders of fair price shops. He admitted that he was knowing those panchas from the beginning. Even considering the deposition of one of the panchas named Paresh Parikh(PW-5) examined by the prosecution in connection with TIP panchnama(Exhibit 17), he also admitted that he was license holder of fair price shop and on dated 01.04.2003, the Executive Magistrate had convened a meeting of fair price shop holders and he had come to the office of the Executive Magistrate to attend said meeting and he was asked by the Executive Magistrate to be one of the panchas of the panchnama(Exhibit 17). 13. Furthermore, it is clear that neither the Investigating Police Officer, nor the Executive Magistrate Mr.Bariya sent any intimation in writing to the witnesses Gopalsinh and his wife Hansaben to attend the office of the Executive Magistrate on dated 1.4.2003 for the purpose of TIP. 13. Furthermore, it is clear that neither the Investigating Police Officer, nor the Executive Magistrate Mr.Bariya sent any intimation in writing to the witnesses Gopalsinh and his wife Hansaben to attend the office of the Executive Magistrate on dated 1.4.2003 for the purpose of TIP. Considering the deposition of Investigating Police Officer Mr.Bhuva(PW-13), he stated that he had telephonically informed first informant Hansaben as well as her husband Mr.Barad to attend the TIP. He nowhere stated in his deposition that when he informed the witnesses telephonically, and what was the exact nature of the communication. 14. In the case of Matru vs. State of UP, [ 1971(2) SCC 75 ], it was observed that – “identification test do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right line. The identification can only be used as corroborative of the statement in Court.” Almost similar observation was made in the case of Suresh Chandra Bahri vs. State of Bihar,(1995 Supp(1) SCC 80), “that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines”. Under such circumstances, it is true that though the substantive evidence of the witness is his evidence in the Court and it is equally true that the identification tests do not constitute substantive evidence, but, it can only be used as corroborative evidence. But, the important aspect, which is required to be taken into consideration in this case, is the possibility or ability of the witnesses to identify the appellant-accused after about 2 years from the date of occurrence. We need not repeat here the entire discussion made above in this judgment, but suffice it to say that during the course of the robbery, there is nothing on record to say that the witnesses had an opportunity to identify the appellant-accused so that in future, during the course of TIP or during the evidence in open Court, the accused can be identified by them. The appellant-accused was totally unknown to the witnesses. 15. The appellant-accused was totally unknown to the witnesses. 15. Considering the deposition of second Investigating Police Officer, PSI Rana(PW-11) he stated that on dated 05.09.2001, while he was investigating an offence registered at Kothamba Police Station as Crime Register No. 60/1 and at that time he interrogated one Mayasingh Pradhansingh, who was accused in the said case and through Mayasingh, he came to know that the present appellant-accused along with others had committed robbery in the house of the first informant-Hansaben. It is clear that Mayasingh is not one of the co-accused person of this robbery, which occurred in the house of first informant-Hansaben. There is nothing that the Investigating Police Officer Mr. Rana recorded the statement of Mayasingh, nor said Mayasingh is examined a witness in this case. 16. In light of the entire above discussion, the evidence adduced by the prosecution, regarding the identification of the appellant-accused, cannot be said to be cogent, convincing, trustworthy and inspiring confidence of the Court. Moreover, there is nothing on record to come to the conclusion that the appellant-accused was anyway connected with the recovery of golden and silver ingots, recovered by police from the shop of goldsmith or with the footprints as deposed by Investigating Police Officer Mr. Rana(PW-11). In the result, we are of the considered opinion that the learned trial Judge erred in coming to the conclusion that the prosecution successfully proved its case beyond reasonable doubt against the appellant-accused. 17. For the foregoing reasons, the impugned judgment and order rendered by the learned Additional Sessions Judge, 4th Fast Track Court, Panchmahals at Godhra on dated 09.01.2004 in Sessions Case No. 168 of 2003 convicting the present appellant-accused for the offence punishable under Sections 395 and 397 of the IPC and awarding sentence thereunder, are hereby set-aside and the appellant accused is hereby acquitted. The appellant-accused be immediately set at liberty from jail, if no longer required in connection with any other case. Therefore, the appeal preferred by the appellant-accused stands accordingly allowed. Consequently, the Criminal Appeal No. 420 of 2004 preferred by the State of Gujarat under Section 377 of the Code for enhancement of sentence, stands dismissed.