JUDGMENT 1. The appellants are the accused A1 to A5 and A6 to A10, A12 and A13. Two appeals are filed by two sets of accused respectively against their conviction and sentence for the offences under Sections 147 , 148 and 307 read with 149 IPC and Section 25(1) (b)(a) of Indian Arms Act in respect of A1 to A5, under Sections 147 , 148 and 307 IPC and Section 25(1) (b)(a) of Indian Arms Act in respect of A6 to 9, Sections 147 , 148 307 read with 149 and Section 25(1) (b)(a) of Indian Arms Act in respect of A10, under Sections 147 , 148 , 307 read with 149 IPC and Section 5 of Explosive Substance Act in respect of A12 and A13. 2. The case of the prosecution was that Special Task Force was formed for the purpose of arresting forest brigade Veerappan and his associates and P.W.1 was during 1993, the Superintendent of Special Task Force. P.W.1, while he was on guard duty on 30.8.1993 received an information as if supply of arms and ammunitions, including explosives and country made bombs are made at Kinnathukuzhipatty in Burgur reserve forest area. On receiving such information, P.W.1 along with his police force, having four teams headed by P.W.1, Sanjay Arora, P.W.11 Hussain, MohanSingh and Shanmugarajan left the camp office at Thattakkarai in police jeep and reached Unsakanavai, where they parked their vehicle and thereafter, proceeded towards Kinnathukuzhi by walk and on their way, they had to pass through Unsakanavai and Sippanettipatty and Varattukuttai and near Varattukuttai, they happened to notice human activities and P.W.1 instructed them to capture them alive and when they were moving further, they happened to see at the distance of 50 m. gang of persons few bearing rifles and few cleaning and repairing rifles and one of the police personnel, at the instance of P.W.1, after having duly warned them, commanded them to surrender. But, they not only failed to do so, but also started firing at Special Task Force by using muzzle loading guns and the members of Special Task Force returned the firing and thereafter 16 persons surrendered and immediately on their surrender, police personnel surrounded them and stood on guard and P.W.1 seized weapons and bullots, empty cartridges, country made bombs, different types of explosives, equipment which are used for repairing weapons and used for filling up of cartridges, bullots fitted belts all totally 87 under Exhibit P-1 list from the accused in the presence of P.W.11 and Inspector Mohan Singh. P.W.1 also on the basis of the statement given by A1 seized Rs. 1 lakh which was kept buried beneath a rock near Sippanettipatti, which is according to A1, given to him for purchase of latest AK47 type rifle for the use of Veerappan and the same is seized under Exhibit P-2 seizure mahazar and thereafter, P.W.1 brought all the accused to Burgur police station, where he lodged Exhibit P-3 complaint and handed over along with the arrested accused, MOs seized under Exhibits P-1 and P-2 to the Sub Inspector of Police in-charge of police station in the presence of P.W.2, then Superintendent of Police in Burgur Police Station. Exhibit P-3 complaint was registered as Exhibit P-29 FIR and the FIR was sent to TADA Court and 16 accused also on being questioned, gave independent confession statement, which are recorded as Exhibits P4 to 19 by P.W.2. Thereafter, further investigation was entrusted to P.W.19 Inspector of police, Burgur Police Station, who in the course of his investigation sent all the accused and properties to the concerned Chief Judicial Magistrate Court for remand and P.W.19 obtained statement from all the police officials and on the next day, he had been to the place of occurrence along with P.W.11 Inspector of Police, Special Task Force and P.W.10-VAO Marasamy and prepared Exhibit P-20 Observation Mahazar and Exhibit P-28 rough sketch and investigation was thereafter entrusted to P.W.20. In the course of further investigation, P.W.20 sent requisition to the concerned Court for sending the explosive substances for chemical analysis Ballestic Expert report and the reports are also received and after completing the investigation, due sanction was obtained from the District collector for proceedings against the accused and final report is filed against the accused for the offences referred to above, for their being members of unlawful assembly with a common object of attacking special task force and for their being unlawful possession of deadly weapons, guns, rifles, country made bombs and explosive substance without license and having indulged in act of rioting and for their having attempted to kill P.W.1 and other members of STF. The case was taken up on file as PRC. No. 18 of 1999 and the same was thereafter forwarded to Sessions Court, Erode, where it was taken on file as S.C. No. 112 of 2001. The final report was originally filed against 16 accused and 3 out of 16 was subsequently found absconding. The case was taken up against 13 accused out of 16. A11 died during pendency of the trial and the remaining 12 accused faced trial for the offences referred to above. 3. The prosecution during trial examined the police officials who are the members of the Special Task Force and who were in the scene of occurrence, arrested the accused, seized the objects and brought them to the police station and DIG of Police in whose presence the complaint is lodged, independent witnesses, who knew the association of A1 Kanagaraj with Veerappan, VAO who assisted the Investigating Officer in the course of investigation and the experts who gave chemical and ballistic report and the Inspectors of Police, who held investigation and laid charge sheet as P.W.1 to P.W.20 and produced the complaint, confession statements of the accused, FIR, observation mahazar, seizure mahazars, rough sketch, Form 95, requisition for chemical examination, reports of the experts, sanction given by the District Collector and arrest report of the Inspector of Police as Exhibits P-1 to P-31 besides M.Os.1 to 88 material objects. The accused totally denied the prosecution case and produced Exhibit D-1 arrest card as defence side exhibits. 4. The Trial Court on the basis of the available records, found all the accused guilty of the offences referred to above. The accused totally denied the prosecution case and produced Exhibit D-1 arrest card as defence side exhibits. 4. The Trial Court on the basis of the available records, found all the accused guilty of the offences referred to above. Aggrieved against the same, A1 to 10 and A12 and 13 preferred the present appeals. During the pendency of the appeals, A9 and A10 died and the appeals are hence prosecuted by A1 to A8 and A12 and A13. 5. The learned counsel for the appellant has put forth the following points against the correctness of the finding of guilt rendered by the Trial Court: (i)The accused admittedly being not known to the prosecution side witnesses before the date of occurrence, their identification by the witnesses in the Court for the first time is inadmissible (ii) previous identification in the test identification parade being a check valve to the evidence of identification in the Court of an accused by a witness, failure to hold test identification parade renders the identification in Court unreliable to base an order of conviction. (iii) arrest of the accused and seizure of the M.Os from the accused is not established through the prosecution side witnesses (iv) non examination of writer of Exhibits P1 to P3 seizure mahazar and complaint is fatal to the prosecution case and (v) the discrepancy in arrest report and arrest card raises a doubt regarding the manner of arrest of the accused. 6. Per contra, the learned Government Advocate (Crl.Side) would vehemently defend the judgment of conviction and sentence of the trial Court by contending that (i) the accused were arrested and confession statement was obtained from A1 and Mos were seized from all the 16 accused and they were thereafter, brought to the police station and handed over along with the complaint to the Superintendent of Police and the Superintendent of Police recorded their confession statement in the police station in the presence of the witnesses. As such, the accused were under the custody of the police officials for reasonable time which is sufficient enough to record the identity of the accused in the mind of the officials and the same enables them to identify the accused in the open Court and the failure to hold any test identification parade does not render the identification in the Court for the first time to be inadmissible. (ii) Identification in the open Court is legally admissible and the corroboration through previous identification with test identification is only a rule of caution. (iii) the arrest of the accused and seizure of articles are sufficiently established through other prosecution side witnesses, whose presence in the scene of occurrence is not doubted. The non-examination of other prosecution side witnesses does not in any manner affect the prosecution case. 7. Heard the rival submissions made on both sides and perused the records. 8. As per the case of the prosecution, Special Task Force camped at Mettur headed by the Superintendent of Police divided as four teams headed by different officials spotted gang of persons, near a hill called Varattukuttai in Burgur forest, which is a prohibited area and few of them were found to be in custody of guns and others found to be repairing and cleaning the same and others arranging arms and ammunitions and taking account of them. Having spotted them, the police warned them to surrender and the Special Task Force was also moving towards them. While so, some of the persons the names of whom were ascertained later, opened fire and the police retaliated the same and in the course of the same, Special Task Force surrounded them and they stopped firing and surrendered to Special Task Force and 16 persons so surrendered were immediately arrested by P.W.1 Superintendent of Police followed by recording of their voluntary confession statement and seizure of arms and ammunitions i.e. rifle, revolvers, double barrel gun, bullets, cartridges, AK47 cartridge, search lights, hanging belts, empty catridges, country made hand granites, carpentry tools, cartridge refilling tools, gun powder, black powder and candle under due mahazars and as there was no independent witness, the same was seized in the presence of Inspector Mohansingh and P.W.11-Hussain. Based on the oral confession statement given by A1, a sum of Rs. 1 lakh was also seized in the presence of the same officials Mohansingh and Hussain from A1, which was according to the prosecution, meant for purchase of new AK47 assault rifle for the use of Veerappan. Thereafter, they were brought to the police station and case is registered etc. 9. 1 lakh was also seized in the presence of the same officials Mohansingh and Hussain from A1, which was according to the prosecution, meant for purchase of new AK47 assault rifle for the use of Veerappan. Thereafter, they were brought to the police station and case is registered etc. 9. P.W.1, who is then Superintendent of Police of Special Task Force, who led the police team to the scene of occurrence, P.W.3 Sheik Dawood, P.W.4 John Kennedy, P.W.5 Selvam and P.W.11 Hussain who are the other police officials in the team led by P.W.1, are examined to depose about the circumstances under which the accused and others are spotted near Varattukuttai and the custody of arms and ammunitions by gang of persons and the manner of their arrest and seizure of articles M.O.1 to M.O.87 i.e. rifle, revolvers, double barrel gun, bullets, cartridges, AK47 cartridge, search lights, hanging belts, empty catridges, country made hand granites, carpentry tools, cartridge refilling tools, gun powder, black powder and candle etc. and Rs. 1 lakh under Exhibits P-1 and P-2 seizure mahazars. However, the evidence of the police officials concerned and the documentary evidence would not fully support the prosecution version in this regard. There are glaring inconsistencies and contradictions in the oral evidence of the police officials concerned on one hand and the documentary evidence produced herein on other hand. 10. The material witnesses, who are admittedly present in the scene of occurrence, are P.W.1, P.W.3, P.W.4 and P.W.11 and all of them categorically deposed that they spotted gang of persons and they opened fire to give them warning and they by using muzzle loading guns, shot the police official who inturn retaliated their shot and thereafter, they surrounded, captured and arrested them and seized the articles in the scene of occurrence and on the basis of confession statement of A1 Kanakaraj, amount was recovered from the place of concealment and thereafter, all the accused numbering 16 and along with seized articles, were brought to Burgur Police Station and the accused and the material objects seized are handed over to the Sub Inspector of Police by name Subramanian, who registered the case in Crime No. 20 of 1993 on the file of Burgur police Station and the investigation was commenced by P.W.19, then Inspector of Police and further investigation was from 1.9.1993 held by P.W.20, the Deputy Superintendent of Police. According to the oral evidence of police personnel P.W.1, P.W.3, P.W.4 and P.W.11, Exhibit P-1 seizure mahazar for rifle, revolver, bullets, gun, explosives etc. and Exhibit P-2 seizure mahazar for Rs. 1 lakh and Exhibit P-3 complaint were all prepared by Inspector, MohanSingh and the confession statement of A1 Kanagaraj and others in Exhibit P-4 and P-19 were recorded in the police station by P.W.2. Though according to the prosecution, all the 16 persons were found to be in possession of arms and ammunitions and explosives in the scene of occurrence and were charged for the offences punishable under the relevant provisions of Arms Act and Explosives Substances Act, Exhibit P-3 complaint proceeds as if the police team noticed a gang of 5 persons dressed in olive green with muzzle loading guns in their hand and two of them were reloading 12 bore cartridges and another two persons repairing arms and the remaining were arranging arms and ammunitions and were taking account of the same. It is also categorically admitted by the police officials that only few, out of 16 persons, attempted to open fire at special task force. However, neither of the police officials are able to identify the accused who were in possession of arms and ammunitions and the accused, who opened fire at them. 11. As a matter of fact, P.W.1 has even in the course of his chief examination admitted that by efflux of 9 years duration, he is not able to remember the nature of weapons and the accused from whom the same are seized. P.W.3 denied any knowledge regarding the manner of arrest of the accused and seizure of the articles from them. According to him, as he was guarding outside and he was not aware as to what transpired inside the police station. He disowned any knowledge, as to who wrote the seizure mahazars and the witnesses who attested the same. P.W.4 also admits that he did not remember the nature of M.Os and the persons from whom the same are seized. Further, it is no body‘s case that all the accused are found to be in the custody of arms and ammunitions. The prosecution witnesses do not come forward with the categorical case as to the nature of the weapons and the persons having the custody of the same. 12. Further, it is no body‘s case that all the accused are found to be in the custody of arms and ammunitions. The prosecution witnesses do not come forward with the categorical case as to the nature of the weapons and the persons having the custody of the same. 12. The police officials are also inconsistent in their evidence regarding the prosecution theory as to whether the accused opened fire first or in retaliation of firing by the police officials. The evidence of the police officials do not corroborate with each other regarding the distance at which the accused opened fire. Further, P.W.1 has in his evidence admitted that they fired by using muzzle loading gun at 50 to 60 meters. It is further deposed by him that the muzzle point guns are admittedly capable of shooting within the distance of 50 to 60 feet and as the distance between the accused and the Special Task Force is admittedly 50 to 60 meters, the alleged act of firing by the accused cannot be treated as an attempt to kill police personnel. The very fact that only two of the accused were found to be in possession of loaded gun and others were found to be indulging in different acts would bely the prosecution case that all of the them started firing at Special Task Force with an intention to kill the police officials. The other important aspect, which is not proved by the prosecution, is that the area wherein, the accused first found to be in possession of arms and ammunitions is prohibited area. No single document is produced to show that the area concerned is declared to be a prohibited area by the Government. That being the nature of the evidence available herein, the finding of guilt under the relevant provisions of the Arms Act and the Explosive Substances Act is factually unsustainable. 13. As already referred to, the recovery of seizure of arms and explosives and cash is made under Exhibits P-1 and P-2 seizure mahazars. The reading of the same reveals that Exhibit P-1 mahazar is prepared at 8.45 am on 31.8.1993 at Varatukuttai and Exhibit P-2 cash is prepared at 12.00 pm on the same day at Mattupatti. As far as the recovery of Rs. 1 lakh is concerned, the same is not seized on the strength of any voluntary confession statement of the accused. As far as the recovery of Rs. 1 lakh is concerned, the same is not seized on the strength of any voluntary confession statement of the accused. Exhibit P-1 complaint proceeds as if the same is seized on the oral confession statement of A1 and the confession statement is admittedly recorded only in the police station under the direction of P.W.2. Whereas, the glaring inconsistency in the prosecution case in this regard as disclosed in the oral evidence of P.W.19 and Exhibit P-20 observation mahazar prepared by him would, as rightly pointed out by the learned counsel for the accused, raise a serious doubt about the genuineness of such prosecution theory. 14. The reading of Exhibit P-20 observation mahazar would reveal that though the date of preparation of the same in the beginning is given as 5.30 p.m. on 1.9.1993, the same is signed by P.W.19 on 2.9.1993. It is also deposed by P.W.19 in the course of his cross examination that he had been to the scene of occurrence on the very next day, on which the accused are produced to Burgur Police Station and he is not able to explain the difference in the date mentioned in Exhibit P-20 observation mahazar and if the same is viewed, in the light of the statement of A1 under Section 313 Cr.P.C. that he is owning 50 acres of land in and around Burgur village and owning a house and Rs. 1 lakh seized was forming part of Rs. 1,49,990/- representing the sale proceeds of Tamarind and special task force came and removed his double barrel gun, 12 cartridges and Rs. 1,49,990/- cash along with receipt from his house and when his wife lodged a complaint against the police, the same is not taken up on file and he sent a complaint to higher officials and when the enquiry was pending upon the same, he was threatened to withdraw the case and on his failure to do so, he was falsely implicated in this case on 1.9.1993, it would compel this Court not to believe the prosecution version regarding the date of arrest of A1 and seizure of cash of Rs. 1 lakh. Further, another inconsistency, which is drawn to the attention of this Court, is the time at which, the accused are sent for judicial remand. 1 lakh. Further, another inconsistency, which is drawn to the attention of this Court, is the time at which, the accused are sent for judicial remand. While P.W.19 says that the accused are sent for judicial remand at 11.00 p.m. on 31.8.1993, as per the entry in Exhibit D-1 arrest card, they are sent for remand at 8.00 a.m. on 1.9.1993. Exhibit D-1 containing the entry regarding remand of the accused at 8.00 a.m. on 1.9.1993 dated 31.8.1993 and signed on 31.8.1993. This is but discrepancy remains unexplained by P.W.19. It is not mentioned by P.W.19 that the date mentioned as 2.9.1993 in Exhibit P-20 observation mahazar and/or as 31.8.1993 in Exhibit D-1 arrest card are due to any inadvertent error. 15. Further, the perusal of the records would reveal that Exhibits P-1 and P-2 seizure mahazars reached the Court at 12.00 p.m. on 1.9.1993. Whereas, Exhibit P-3 complaint and Exhibit P-29 FIR reached at 3.05 a.m. on 1.9.1993. As already stated, Exhibits P-1 and P-2 seizure mahazars are prepared much before Exhibit P-3 complaint and Exhibits P-4 to P-19 confession statements are recorded by P.W.2 in Burgur Police Station on 31.8.1993. It is in the evidence of P.W.19/Investigation Officer that the recording of the confession statement of the accused is completed at 8.00 pm on 31.8.1993. If that is so, all the documents i.e., seizure mahazars, complaint, FIR and confession statements are very much available at the time of sending the complaint and FIR to the Court. Whereas, all the documents are not sent to the Court at one and the same time. The seizure mahazars and confession statements are sent to Court only much after the complaint and FIR. Further, Exhibit P-20 observation mahazar prepared on 1.9.1993 is sent to Court only on 22.1.1998 and the failure of sending all the documents at one and the same time and other material document with delay remains unexplained on the part of the prosecution. 16. Further, Exhibit P-20 observation mahazar prepared on 1.9.1993 is sent to Court only on 22.1.1998 and the failure of sending all the documents at one and the same time and other material document with delay remains unexplained on the part of the prosecution. 16. The combined appreciation of absence of any definite and corroborated evidence of the competent witnesses regarding the actual persons in custody of the weapons and the nature of the weapons and the person from whom the weapons are seized and the exact date of arrest of the accused and the time at which they were remanded to judicial custody and non-explanation for sending all the documents at one and the same time, would render the prosecution theory to be highly doubtful. 17. The next aspect relied upon by the prosecution is the identification of the accused in the open Court. It is not in dispute that the accused are not known to Pws before their alleged arrest on 31.8.1993 and after their arrest, allegedly on 31.8.1993, they are identified by the witnesses in the open Court only during 2001 and 2002. There is no previous identification through test identification parade of the accused by the witnesses. Under such circumstances, the learned counsel for the accused would seriously argue that their identification for the first time in the open Court without any corroboration through previous identification is not admissible. 18. Whereas, the learned Government Advocate (Crl. Side) would contend that as the PWs referred to above, are the persons who arrested the accused and seized the articles and brought them to the police station and witnessed the recording of confession statement by P.W.2, Superintendent of Police in Burgur police station, their identity is sufficiently recorded in the mind of the prosecution side witnesses, who belong to Special Task Force, as such, the previous identification through test identification is not necessary and their identification in the open Court by memory can be duly relied upon. 19. 19. However, Hon‘ble Apex Court and our High Court in their judgment in Dana Yadav v. State of Bihar AIR 2002 SC 3325 : (2002) 7 SCC 295 : (2002) SCC (Cr) 1698 : LNIND 2002 SC 574 and in Alumalai and 5 Others v. State by Inspector of Police, Hasanur Police Station 2006-1-LW (Crl.) 166 : LNIND 2005 Mad 859 , are of the view that though the previous identification through test identification parade is rule of caution and rule of evidence and ordinarily, their identification for the first time in Court is not inadmissible, the same cannot be relied upon to base an order of conviction. Applying the ratio laid down by Hon‘ble Apex Court and considering the time interval between the date of arrest and their identification in the open Court i.e. 1993 and 2001-2002, this Court is of the view that identification of the accused for the first time in the open Court cannot be placed any serious reliance. 20. The combined appreciation of the factors as discussed above, would compel the appellate Court to arrive at a conclusion that the prosecution has not brought home the guilt of the accused beyond reasonable doubt and such benefit of doubt is to be extended to the accused and the judgement of the trial Court without duly considering and appreciating the discrepancies and inconsistencies as discussed above, resulted in miscarriage of justice and the same is hence liable to be set aside. 21. In the result, the Criminal Appeals are allowed by setting aside the judgment of conviction and sentence dated 4.12.2002 made in S.C. No. 112 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.IV, Erode) at Bhavani and the accused are acquitted from the charges. The bail bond, if any, executed by the accused shall stand cancelled and the fine amount, if any, paid by the accused shall be refunded to them. M.O.88 cash of Rs. 1 lakh is directed to be refunded to A1/Kanagaraj. Appeal allowed.