Judgment :- These Criminal Appeals are filed against the judgment dated 8.8.2002 passed in SC.NO.335/2000 by the learned Additional Sessions Judge Cum FTC-V, Coimbatore at Tiruppur, convicting and sentencing the Appellants/A1 and A3 for the offence under Section 395 of IPC to undergo 7 years Rigorous Imprisonment each and to pay a fine of Rs.5000/- each and for the offence under Section 397 of IPC to undergo 7 years Rigorous Imprisonment and in default to pay the fine amount to undergo 2 years Rigorous Imprisonment and ordering both the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. One Chandran PW.2 is running a Oil Store at Kumar Nagar, Tiruppur and PW.3 Palanisamy is working in the said Store. On 12.7.1997, after closing the said Store at Night hours, PW.2 and PW.3 were returning to their house along with a sum of Rs.61,000/- being the business money. At that time, the 1st accused Perumal and the 2nd accused Pushparaj were sitting in the steps of the Homeopathy Hospital and while PW.2 and 3 were crossing that place, the accused 1 and 2 waylaid them and while PW.3 was on the way to his house, the 1st accused took aruval and attacked PW.2 on his left cheek and PW.2 sustained cut injuries. On hearing the alarm, PW.3 came back and took the money bag from PW.2 and caught hold of the leg of A1 and at that time, A2 spread the chilli powder on the face of PW.3 and robbed the money bag from him and the public caught hold of A1 and A2, who came in a motor cycle along with another person, threatened them with a knife and ran away from the place of occurrence. PW.2 and PW.3 along with A1 went to the Police Station, Thiruppur North Police Station and gave a complaint and handed over the 1st accused to the said Police Station. b. On receipt of the complainant, PW.12 Inspector of Police attached to the said Police Station registered a case in Cr.No.2002/1997 and prepared FIR Ex.P12 and recorded the confession statement of A1 in the presence of PW.6 Arumugam and PW.7 Devaraj and seized MO.2 Aruval, MO.1 Motor Cycle, Mo.3 Karate Chain and MO.4 blood stained inner garment under Ex.P17 under Form-95 and the admissible portion of the confession statement given by the 1st accused is Ex.P13. PW.12 examined PW.2 and sent him to Tiruppur Government Hospital for treatment. c. PW.1 Doctor Saroja attached to the said Hospital gave treatment to PW.2 and issued a wound certificate Ex.P1. PW.12 went to the place of occurrence and prepared observation mahazar Ex.P2 and a rough plan Ex.P14. PW.11 Inspector of Police arrested the 3rd accused at Tirunelveli and recorded his confession statement and sent him for judicial custody and on 17.7.1997 arrested the accused 4 and 5 near Avinashi Bus Stand and sent them for judicial custody and arrested the 2nd accused at Perundurai in the presence of the witnesses and recorded his confession statement in the presences of the witnesses. On 14.8.1998 in the identification parade PW.2, 3 and 9 identified the accused 1, 2, 4 and 5 conducted by the concerned Magistrate and the identification parade report is Ex.P10. After completing investigation, the Inspector of Police filed a final report against the accused under Sections 120B, 395 and 307 of IPC. 3. The case was taken on file in SC.No.335/1999 on the file of the learned Additional Sessions Judge (FTC-V) Coimbatore at Tiruppur and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 12 witnesses (PW.1 to PW.12} and also relied on Exs.P1 to P17 and four material objects (Mos.1 to 4). 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.K.M.Subramanian, the learned counsel for the 1st accused and Mr.R.Sankarasubu, the learned counsel for the 3rd accused assailed the judgment of the Trial Court on various grounds. 8. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgment of the trial Court placing reliance on the evidence of the Prosecution. 9. 7. Mr.K.M.Subramanian, the learned counsel for the 1st accused and Mr.R.Sankarasubu, the learned counsel for the 3rd accused assailed the judgment of the Trial Court on various grounds. 8. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgment of the trial Court placing reliance on the evidence of the Prosecution. 9. I propose to go into the main contentions raised by the learned counsel for the Appellants which go into the root of the case of the Prosecution. 10. PW.2, an oil merchant who was returning with his employee PW.3 to his house with a bag containing cash, was said to have been intercepted by A1 at the first instance causing injury on the cheek of PW.2 with aruval MO.2 and A2 had come there and snatched the bag containing cash, sprinkled chilli power on the face of PW.3, who was having the bag taken from PW.2. In the mean while another person had come in a motor cycle and A2 is said to have fled away from the scene in the said Motor Cycle, which was ridden by the said unknown person. However, A1 was caught hold of by PW.2 and PW.3 with the help of the public and was handed over to the police on the next day. According to the Prosecution, the incident had occurred on 12.7.1997 at abut 9.45 p.m. 11. The Prosecution relied upon the evidence of PW.2 and PW.3 and admittedly no independent witnesses have been examined, though their evidence indicated that the public helped them in catching hold of A1. The evidence of PW.4 is a hearsay, inasmuch as he admitted in his cross examination that he has not seen the incident and only saw A1 being caught hold of by PW.2 and PW.3. It is elicited in his cross examination that he was working in the company run by PW.2s brother-in-law. Apart from the fact that he is an interested witness, his evidence is of no avail to the Prosecution, as he has not seen the incident. 12. The testimony of PW.2 and PW.3 revealed that the accused persons are not known to them prior to the incident. Except the accused 1 and 2, A3 is not identified by any of the witnesses before the court. 12. The testimony of PW.2 and PW.3 revealed that the accused persons are not known to them prior to the incident. Except the accused 1 and 2, A3 is not identified by any of the witnesses before the court. Even PW.9, who alleged for the first time before the court that he saw four persons who were talking to themselves that the oil merchant would be coming by that way, has not identified the accused before the court, but only pointed out that among those four persons, A1, A2 and A5 were there. His evidence does not indicate as to whether he knew them prior to the incident or had seen their identifying features, so as to enable him to identify them before the court. 13. In the said back drop of facts, it has to be seen whether the evidence of PW.2, PW.3 and PW.9 and their identification of the accused 1 to 3 in the test identification parade could be placed reliance for sustaining the conviction of the accused in this case. According to PW.2 and PW.3, A1 was caught hold of by the witnesses, but the other accused A2 and an unknown person who came in the motor cycle fled away from the scene. A1 was produced by PW.2 and PW.3 in the Tiruppur North Police Station only at 7.00 a.m. on the next day morning. The explanation given by PW.2 in the complaint Ex.P7 and in the evidence before the court was that they went in search of the other accused and that is the cause for the delay in producing A1 in the Police Station. It is not their case that A1 knew the place where A2 and the other unknown accused had gone and on his assurance to apprehend those accused, PW.2 and PW.3 went in search of them. The explanation for the delay given by PW.2 does not appear to be a plausible and an acceptable reason, as any person who has got the custody of an accused from the gang or two or more accused persons would normally hand over them to the police immediately in order to recover the money snatched away from him with the help of the police. But, the conduct of PW.2 and PW.3 in not reporting the matter to the police after the occurrence and the complaint being lodged after a delay of nearly 10 hours from the time of occurrence create a reasonable doubt regarding the veracity and reliability of the Prosecution case. Even after apprehending A1 from the scene, the amount has not been recovered even after the arrest of the other accused in this case. Both PW.2 and PW.3 have stated that no injury was found on the body of A1 at the time when they handed him over to the police on the next morning. Whereas PW.12 the investigating officer stated in his evidence that A1 had injury and he was given treatment for the said injuries. Therefore, it creates a reasonable doubt on the conduct of PW.2 and PW.3 and the production of A1 in the Police Station by them raises a serious doubt. 14. It is the categoric evidence of PW.2 and PW.3 that A2 fled away from the scene in the Motor Cycle after sprinkling chilli powder on the face of PW.3. PW.2 was lying down and PW.3 was trying to catch hold of A1. As the occurrence has taken place in the night hours and as even according to Pw.3, he had closed his eyes due to sprinkling of chilli powder, there would have been no chance for him to see and identify A2 who according to the Prosecution fled away in the motor cycle driven by an unknown person. In such circumstances, PW.2 and PW.3 could not have had sufficient visibility to enable them to recognise the accused. 15. In the case of Budh Sen Vs. State of UP [1970-Crl.LJ-1149=AIR-1970-SC-1321], the Honourable Supreme Court has made certain highly significant remarks regarding the identification evidence. It pointed out that the evidence in order to carry conviction should ordinarily clarify as to how and in what circumstances the Prosecution witnesses came to pick out the particular accused person and the identifying features which enabled him to identify the accused person with reasonable particularity. 16. The first important feature in the identification parade is that the witness should have the opportunity to observe the accused clearly. 16. The first important feature in the identification parade is that the witness should have the opportunity to observe the accused clearly. If it is the case of the Prosecution that A2 and the Prosecution witness struggled with each other for some time thus enabling the witnesses to observe the identifying features of the accused, then it can be said that the identification parade in this case is a valuable evidence. But, in the present case, there was no such chance or occasion either for PW.2 or PW.3. There was no sufficient surrounding circumstances which facilitated identification of the accused at the time of occurrence. 17. The testimony of PW.9 that he saw four persons talking among themselves about the oil merchant without even naming the person and identifying A1, A2 and A5 as the three accused persons among four is really to be ridiculed. He has admitted that he did not disclose the said fact to anyone. His evidence indicated that he is also an interested witness, as he has been working with the brother-in-law of PW.2. There is no indication from his evidence as to how he knew those persons and whether he had seen A1, A2 and A5 prior to the occurrence or at least whether he had in his memory any special identifying features of those accused. In fact, he did not even say in his evidence that he participated in the identification parade and identified A1, A2 and A5. Further, he has identified some other persons unrelated to this case as the accused persons. He has not mentioned about A4 an A5. 18. That apart, PW.2 has stated that he identified A1 and A2 in the identification parade that was held on 14.8.1997. Whereas no identification of A1 was held on the said date. The other witness one Balu, who is said to have accompanied PW.9 and participated in the test identification parade, has not been examined before the Trial Court. The important factor in this case to discredit the evidence is the delay in conducting the identification parade. A3 has been arrested on 14.7.1997, A4 and A5 on 17.7.1997 and A2 on 20.7.1997. But, the first identification parade had been held on 14.8.1997 and the second one on 17.10.1997. The important factor in this case to discredit the evidence is the delay in conducting the identification parade. A3 has been arrested on 14.7.1997, A4 and A5 on 17.7.1997 and A2 on 20.7.1997. But, the first identification parade had been held on 14.8.1997 and the second one on 17.10.1997. It is the duty of the Prosecution to hold identification parade without any delay after the arrest of the accused and the identification evidence would become valueless, when it is shown that there is a possibility for the accused concerned to have been shown to the witnesses. In this case, as the identification parade had been held after nearly one month after the arrest of the accused, the conduct of the police is viewed with suspicion, as before the learned Magistrate who conducted the identification parade, the accused have specifically stated that they were shown to the witnesses. That apart, the identification evidence becomes farce and valueless, as the evidence clearly indicated that the witnesses could not possibly have seen the accused identified at the time of occurrence. Therefore, it makes it probable for the witness to have seen the accused persons even before the test identification parade, more so, when there is unexplained and unavoidable delay on the part of the Prosecution. The identifying of the accused by the witnesses more particularly PW.9 is not consistent. The number of wrong persons identified and PW.2s evidence that he identified A1 when A1 did not participate in the identification parade on 14.8.1997 make the evidence of identification parade valueless. 19. The learned counsel for the Appellants relied on the decision of the Honourable Supreme Court rendered in the case of Ravi @ Ravichandran Vs. State by Inspector of Police [2007-2-MLJ-Crl-367-SC] in support of their arguments that except A1 no other accused was shown in the FIR and really had the accused been known, their identity would have been disclosed in the FIR and in such circumstances, the test identification parade held after a considerable delay cannot lend assurance to the Prosecution case and benefit of doubt should be given to the accused. In the above said decisions, the Honourable Supreme Court has held that the test identification parade should be held as early as possible after the arrest of the accused so as to avoid suspects being shown to the witnesses at the Police Station or by publishing their photographs in the Newspapers and if such things cannot be ruled out, no importance could be attached to the said evidence. 20. In the present case, many discrepancies and infirmities shown and discussed herein before lead to an inference that the accused had not been identified by the witnesses properly and no value could be given to the said identification evidence. 21. Another material irregularity pointed out by the learned counsel for the Appellants is that the examination of all the accused collectively under Section 313 of Code of Criminal Procedure and the learned trial Judge adopting an easy course of recording a joint statement of the accused persons in this case is a flagrant violation of the provisions of Section 313 of Code of Criminal Procedure. The learned counsel placed reliance on the judgment of the Division Bench of the Karnataka High Court rendered in the case of Venkateshappa Vs. State by Mulbagal Police [II-2001-DMC-588-DB], the Division Bench held as follows:- "12. Wherefore, we are of the view that the trial Judge has filed to follow the mandatory provisions of law, in not examining the accused separately and individually and it vitiates the trial and such a judgment is clearly not sustainable in law. This is not a case where a particular incriminating evidence is not put to the accused, in which case, the said circumstances may be eschewed by the Court, or the appellants counsel could be asked to explain the circumstances existed against the accused and when non examination of the accused on a particular circumstances prejudices the defence. Though the provisions of Section 313 of the Code of Criminal Procedure specify the mode of recording the statement of the accused under Section 313 of the Code of Criminal Procedure, the second part of it specifically mandates recording the statement of the accused to explain each and every incriminating circumstances occurring against him. He must have ample opportunity of explaining the said circumstances occurring against him. He must have ample opportunity of explaining the said circumstances occurring against him. We have already recorded the observations of the Apex Court regarding the importance of recording the statement of the accused in the later part of Section 313 of the Code of Criminal Procedure. Therefore, where the mandatory provision of law is violated, the trial vitiates. Therefore, it is liable to be set aside." 22. The object of examination of an accused under Section 313 of Code of Criminal Procedure is to enable the accused personally to explain any circumstances appearing in the evidence against him. It is well settled that the provision is mainly intended to benefit the accused and its corollary is to benefit the court in reaching a final conclusion. In the present case, the learned trial judge has failed to follow the mandatory provisions of law in not examining the accused separately and individually, thus not giving them an ample and proper opportunity of explaining the circumstances and evidence appearing against each of them. Therefore, it is certainly a flagrant violation of the provisions of Section 313 of Code of Criminal Procedure and it vitiates the trial. 23. Viewed at any angle, I am of the considered view that the conviction of the Appellants cannot be sustained. 24. In the result, these Criminal Appeals are allowed. The conviction and sentence of the Appellants/A1 and A3 for the offence under Sections 395 and 397 of IPC are set aside and they are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail. The bail bond if any executed by the Appellants shall stand terminated and the fine amount if any paid by the Appellants shall be refunded to them.