Judgment : These two appeals by two convicts question the Judgment of their conviction rendered by the learned Additional Sessions Judge, Greater Mumbai for the offence punishable under Section 397 read with Section 34 of the Indian Penal Code and sentence to suffer rigorous imprisonment for seven years with a fine of Rs. 5000/-or in default simple imprisonment for three months each on conclusion of Sessions Case No.83 of 2008 before him. 2. Facts which are material for deciding these appeals are as under : On 3rd November, 2007 at about 7:45 p.m. the victim Pankaj was returning from his place of work along with his friend Thyagarajan Naidu towards Turbhe Railway Station. When they were crossing the tracks, the two appellants and a third person stopped them. One of the appellants snatched mobile phone from the pocket of Pankaj. The other appellant handed over a knife to the appellant who had snatched the mobile phone. That person inflicted an injury on victim's abdomen on the right side. Thyagarajan Naidu had managed to run away to the railway station. Pankaj was then taken to the hospital where he was treated. A report was given to the railway police where an offence was registered. In the course of investigation, police recorded statements of witnesses, apprehended the appellants, recovered at the instance of Prashant, the knife and mobile phone, caused test identification parade to be held and on completion of investigation sent charge sheet to the Court of the learned Metropolitan Magistrate, CST, Mumbai, who committed the case to the Court of Sessions at Mumbai. 3. The learned Additional Sessions Judge to whom the case was made over, charged the two appellants, along with the third person Sandip Tamanna Kusalkar, for the offence punishable under Section 392 read with Section 397 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home guilt of the accused persons. After considering their evidence, in the light of defence of false implications, the learned trial Judge acquitted the third accused person i. e. Sandip Tamanna Kusalkar but convicted and sentenced the appellants as aforementioned. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for respondent No.1 -State. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for respondent No.1 -State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Pankaj Manga Choudhari is the victim, who states about the incident. According to Pankaj, on the incidental evening he and PW-5 Thyagarajan Naidu had left their office and were proceeding by the railway track to railway station to catch a train. They over took three boys, who were ahead of them. Out of them, two boys allegedly held their collars. Thyagarajan Naidu managed to escape towards railway station. One of the boys holding his collar removed his mobile phone from the pocket of his trouser. He then asked his companions to give him the knife. Thereafter, accused No.2 Pravin gave a knife to accused No.1 Prashant and accused No.1 gave a blow with the knife on the victim's abdomen. The victim then claims to have gone towards the railway station. He then stated about the treatment taken by him and the report which he made to the railway police. He proved his report at Exhibit 14. PW-5 Thyagarajan Selvamani Naidu, who was supposed to have been with the victim turned hostile. He gave a different account of the incident. He agreed that he and PW-1 Pankaj were walking towards the railway station. However, he stated that three boys came there from rear side and it is not that they over took those boys. He stated that one of the miscreants held him by collar. Therefore, he gave a jerk and he managed to escape towards railway station and raised cries that there were thieves. He stated that boys started pelting stones (which PW-1 Pankaj does not state). Curiously PW-5 Naidu stated that PW-1 Pankaj was coming through sub-way. Thyagarajan Naidu saw that Pankaj had injury on his abdomen. 5. PW-2 Anil Haridas Tijore is a panch on several panchanamas, but deposed about only one panchanama drawn on 20th November, 2007, whereby memorandum of statement made by accused No.1 Prashant was recorded. In his evidence, he stated accused No.1 was Pravin Shinde and accused No.2 was Kishore Pawar. In fact, accused No.1 was Prashant Kishor Pawar and accused No.2 was Pravin Navnath Shinde. The witness seems to have mixed up two names. In his evidence, he stated accused No.1 was Pravin Shinde and accused No.2 was Kishore Pawar. In fact, accused No.1 was Prashant Kishor Pawar and accused No.2 was Pravin Navnath Shinde. The witness seems to have mixed up two names. All the same, the fact remains that memorandum of statement made by accused No.1 was recorded and recovery was made at the instance of accused No.1. The knife and mobile phone were accordingly seized. The panchanamas proved by the witnesses are at Exhibit 16 and 17. 6. PW-9 PSI Shivaji Yadavrao Shivthare was the officer, who recorded memorandum of the statement and made the recovery. PSI Shivthare had taken up investigation after PW-8 PSI Ganpat Hariba Roman had registered an offence. PSI Shivthare stated that on 7th November, 2007, he wrote to the Telecom Company seeking details about the use of mobile phone having the particular IMEI number provided by the complainant. This requisition at Exhibit 31 was replied by the Company vide Exhibit 32 on 15th November, 2007. Thus, on 15th November, 2007, the investigating officer was aware that the mobile phone was in use of one Sattar (PW-4). In fact, he stated so in his examination-in-chief. He then stated that from his informants he got the information that crime was committed by three boys and then arrested the three accused on 18th November, 2007 and then went to make recovery at the instance of accused No.1 on 20th November, 2007. 7. PW-3 Mohd. Afzal Khan is the person seems to have mediated sale of mobile phone for a sum of Rs.6000/-to PW-4 Abdul Sattar Abdul Razak. The phone itself was ultimately seized from PW-4 Abdul Sattar. PW-7 Dr. Ravindra Suresh Patel stated that he had examined the victim and proved his Medico-Legal Certificate at Exhibit 28 which shows that the victim did have a serious abdominal injury. 8. PW-6 SEO Sudha Subhash Brahma conducted Test Identification Parade on 15th December, 2007 at which the appellants were identified by PW-1 Pankaj, who proved memorandum of Test Identification Parade at Exhibit 23. 9. The learned counsel for the appellants submitted that first, though the incident took place on railway tracks at Railway Station, where admittedly a large number of passengers were present, no independent witness was examined, and, a friend of complainant, who was examined had refused to support the prosecution. He did not identify the miscreants. 9. The learned counsel for the appellants submitted that first, though the incident took place on railway tracks at Railway Station, where admittedly a large number of passengers were present, no independent witness was examined, and, a friend of complainant, who was examined had refused to support the prosecution. He did not identify the miscreants. He submitted according to the prosecution witnesses, police constables were supposed to be on duty on railway station and there was also police outpost at the railway station. But no report was immediately made. According to him, the investigating officer had already located the mobile phone on the basis of information provided by the Telecom Company on 15th November, 2007 itself. Therefore, there was absolutely no warrant for recording memorandum of so called statement made by Prashant on 20th November, 2007 after arresting the appellants on 18th November, 2007. He submitted that recovery so made is thoroughly unreliable, since the police officer already knew location of mobile phone. According to him, implicating the appellants at the instance of the persons, who were found to be in possession of stolen mobile phone was highly undesirable and unbelievable, particularly, in the context of the fact that the investigating officer had chosen to show as if, the mobile phone was recovered upon discovery made by one of the appellants. 10. The learned counsel further submitted that though PW-2 Anil was a panch witness on all the panchanamas recorded by the investigating officer, Anil did not state about any other panchanama except that which led to recovery. The learned APP sought to explain by submitting that the panchanamas were of arrest and therefore, there was nothing significant about those panchanamas. The learned APP submitted that omission of the witness to refer to these panchanamas therefore, need not mean that panchanamas were not recorded in his presence. The question is not about the panchanamas but about reliability of PW-2 in entirety. These panchanamas were recorded at different times and it is indeed surprising that the witness, who resides at Matunga could repeatedly make himself available to police for various panchanamas. 11. This is not all. The witness does not at all refer to his presence at the Test Identification Parade. The learned counsel for the appellants has a very serious objection to the identification of the appellants at the Test Identification Parade. 11. This is not all. The witness does not at all refer to his presence at the Test Identification Parade. The learned counsel for the appellants has a very serious objection to the identification of the appellants at the Test Identification Parade. He submits that even according to PW-2 Anil, recovery was made at the instance of Prashant on 20th November, 2007. Thus, PW-2 Anil had an opportunity to see the appellants. Now this very Anil was a panch at the Test Identification Parade and therefore, possibility of Anil being in a position to direct the victim to identify the miscreants could not be ruled out. The learned counsel further pointed out that the evidence of PW-6 SEO Sudha Brahma shows that she had not taken precaution to ask the identifying witnesses whether they had an opportunity to see the accused persons or to ask accused persons whether they had been seen by the identifying witnesses. She did not care to sign each sheet of parade conducted by her. The learned APP submitted that this may be because it was her first occasion to hold a parade. Even if lapses on the part of the SEO are ignored as a minor, presence of PW-2 Anil as a witness at this parade itself casts a doubt on the identification of the appellants at the parade, since Anil had an opportunity to see the appellants almost a month before the parade when the so called recovery was made at the instance of the appellants. And PW-2 Anil is silent about his presence at test identification parade. 12. The learned counsel for the appellants is, therefore, right in submitting that first, as far as appellant No.2 Prashant is concerned, there is absolutely no role attributed to him except that of handing over a knife at the instance of appellant Pravin. Seizure of mobile phone or knife at the instance of Prashant is doubtful because of the prior information which PSI Shivthare had obtained, and in spite of which he made it appear as if he had recovered mobile phone on information provided by appellant Prashant. 13. In view of this, though the learned APP attempted to support the Judgment by causation which is lame, the appeals would have to be allowed. 14. Both the appeals are allowed. 13. In view of this, though the learned APP attempted to support the Judgment by causation which is lame, the appeals would have to be allowed. 14. Both the appeals are allowed. Conviction of the appellants for the offence punishable under Section 397 read with Section 34 of the Indian Penal Code and sentence to suffer rigorous imprisonment for seven years with a fine of Rs. 5000/-or in default simple imprisonment for three months each is set aside. Appellant Pravin may be set at liberty, if not wanted in any other case. Bail bonds of appellant Prashant stand cancelled.