JUDGMENT : Dev Darshan Sud, J. Both these appeals are being disposed of by a common judgment as same question of law and fact are involved. 2. The State and the accused preferred these appeals against the judgment of the learned Additional Sessions Judge-II, Kangra at Dharamshala convicting the accused for the offence under Section 395 of the Indian Penal Code (hereinafter referred to as IPC). 3. According to the prosecution, the incident for which the accused were charged took placed at Kenchi Mod (double blind curve) at Dharamshala. Complainant Mohammad Sultanmeer (PW2) says that he was residing at Depot Bazar, Dharamshala, where he was carrying on business of selling shawls and blankets. On 28.12.1993 at around 4.30 p.m. when he was returning from Kotwali Bazar to Depot Bazar and had reached Kenchi Mod the accused along with four companions came there and told him that they want to purchase blankets and shawls etc. They took him in a taxi and told him that have to go at a place near the workshop but they did not stop there. Near the gas factory at Sudher, three of them took out knives with which they threatened the complainant and looted Rs.1600/- from him and thereafter he was thrown out of the taxi. At that time he was having shawls and blankets worth Rs. 2000/- or Rs.3000/- with him which were also taken away by them. He says that thereafter Lamberdar of village Meti who was driving his car, stopped there and asked as to why he was crying. He asked the complainant to accompany him in the car and they went in the search of the taxi/persons involved in the crime, which taxi they found near Gharoh School. Accused were not present in the taxi, though the driver was present there and some boys were playing cricket in the nearby ground. The driver of the taxi had informed these boys that the complainant had been looted by six persons on which they chased them and succeeded in apprehending two of them. The Lamberdar then reported the matter to the police and complainant Mohammad Sultanmeer lodged the report Ex.PW1/A. Shawls and blankets were taken into possession vide memo Ex.PW2/B. A sum of Rs.1600/- was also recovered from them. Knives Ex. The Lamberdar then reported the matter to the police and complainant Mohammad Sultanmeer lodged the report Ex.PW1/A. Shawls and blankets were taken into possession vide memo Ex.PW2/B. A sum of Rs.1600/- was also recovered from them. Knives Ex. P-1 to P- 3 were taken into possession vide memo Ex.PW2./E. In cross-examination he says that these knives were recovered from the open area in the forest near Jhikal which was at a distance of 1/2-3/4 kilo meters from Gharoh. He does not remember the name of the taxi driver. The vehicle had no number plate which was fixed later. There are a number of houses between Kenchi Mod and Gharoh and number of vehicles had crossed there. 4. PW-3, Bir Sahib, who was declared hostile says that he was the driver of Maruti Van No. PN-10B-0663 which he was driving in Dharmshala. He further says that about 7 years ago, since the incident he was going to the house of the owner of the vehicle around 4-5 P.M. 3-4 boys stopped his taxi and told him that they wanted to travel to Gharoh. These boys boarded the taxi along with a khan who was carrying some clothes for sale from house to house. He does not remember the kind of the clothes he was carrying. On the way, these people asked this khan to get down. He did not see any knives with them as he was driving the vehicle. Out of these boys/people, one slapped this witness and threatened him. At Gharoh he stopped the taxi and raised an alarm whereon some boys who were playing there, chased and apprehended two boys/persons and the others succeeded in escaping. He does not recognise any one of the persons who were sitting in his taxi. He does not know their names. He only recognised two persons who have been apprehended by the boys. He then states that accused present in Court are not those persons. The evidence of this witness is of importance. In cross-examination by the defendant he says that:- "Ye thik hai ki muljman hajir adalat ne khan se koi saman ya paise na lute the. Khud kaha ki ye log aage bethe the. Ye thik hai ki muljman hajir adalat meri gadi me na bethe the. The evidence of this witness is of importance. In cross-examination by the defendant he says that:- "Ye thik hai ki muljman hajir adalat ne khan se koi saman ya paise na lute the. Khud kaha ki ye log aage bethe the. Ye thik hai ki muljman hajir adalat meri gadi me na bethe the. Khan ne hala-gula dala tha aur awaj dali thi" Translation: "It is correct that the accused present in court did not loot any articles or money from the Khan". (Volunteered) that they were sitting in the front. It is correct that the accused present in court were not sitting in my vehicle and khan had protested and had raised an alarm". 5. PW-4 Bhupinder Singh says that the incident occurred 7-8 years ago. Some boys were playing cricket near Gharoh School and he was watching the match. One maruti van came and stopped there. He saw some boys alighting from the van and running away. He states that somebody said that these people had looted a khan. He and some boys ran after them, two persons were apprehended by them at some distance. The Pradhan of the Gram Panchayat was also present there. He then says that he does not remember, if those two persons had disclosed their names to the police. He does not recognise those two persons as accused present in Court are not those persons who were apprehended by them. 6. PW8 Kartar Singh states that he saw a van coming from Dharamshala which stopped between Gharoh and Sudher and he saw some people pushing out a Khan" from this van. The van thereafter proceeded towards Gharoh and Khan ran after it. He states that he cannot recognise those persons. 7. This is entirety of the evidence we have considered as other are formal witnesses. We say this for the reasons that the prosecution urges that proper/adequate sentence has not been imposed upon the accused and the findings of the learned trial Court have been based upon mis-appreciation of the evidence. The accused/appellant on the other hand, urges that the evidence is insufficient to link/connect them with the offence in any manner and as such the sentence imposed upon the accused is illegal and wrong. 8. The accused/appellant on the other hand, urges that the evidence is insufficient to link/connect them with the offence in any manner and as such the sentence imposed upon the accused is illegal and wrong. 8. It is the evidence of these witnesses which includes the evidence of the complainant, the taxi driver PW3 Bir Sahib as also PW4 Bhupinder Singh who chased and apprehended the accused which requires consideration. Adverting to their evidence even if we ignore the evidence of PW-3 Bir Sahib, we find that the identity of the accused has not been established as would be apparent from the statement of PW4 Bhupinder Singh. Though, an attempt has been made by the prosecution to urge that evidence of PW-2 Mohammad Sultanmeer (complainant) cannot be doubted because he is the complainant and that the evidence of PW3, Bir Sahib in so far as it relates to the incident when he says that the accused (some persons) were chased and apprehended corroborates that statement, we cannot persuade ourselves to hold that Bhupinder Singh (PW4) has any reasons not to state the truth. He in fact was watching the cricket game and was one of the persons of the party which gave chase to and apprehended the culprits. We do note with consternation and are deeply perturbed by the fact that a poor hawker has been assaulted and robbed of his money but the evidence in this case has been recorded 7-8 years after the incident which delay probably resulted in wiping out the details of evidence, more especially the identity of the accused. We also note with dismay that the full link evidence of the persons who had chased and apprehended the accused, was not produced and examined in the court below but we cannot base our conviction on moral conviction and sentiment alone. In Mousam Singha Roy and others v. State of West Bengal, (2003) 12 SCC 377 , the court holds: "27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 stated thus: (AIR p.645, para 12) It is no doubt a matter of regret that foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused." (p.394) 9. The evidence is to pass the test of Section 3 of the Indian Evidence Act. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003)8 SCC 752 , the Court holds : "28. Whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be "proved" when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. "The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: There is a strong and marked different as to the effect of evidence in civil and criminal proceedings. Best says: There is a strong and marked different as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (Best,$ 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edn., pp 580-59) In the words of Denning, L.J. (Bater v. Bater, (1950) 2 All ER 458 at P.459 B-C): It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of Law, Hodson, L.J. said: "Just as in civil cases the balance of probability may be more readily titled in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others." (Hornal v. Neuberger Products Ltd., (1956) 3 All ER 970 at p. 977 D)."" (p.767) 10. It is the effect of the evidence which has to be considered and in the present case since we find that the identity of the accused has not been established, we cannot proceed to accept the submission of the State that the accused cannot be acquitted of the offence as charged. 11. Learned Senior Additional Advocate General submits that the evidence of the complainant cannot be doubted he having suffered the crime. The testimony of the victim should and ought to be accepted. He places reliance upon the decision of Supreme Court in Chikkarangaiah and others v. State of Karnataka, (2009) 17 SCC 497 holding that minor infirmities and omissions in the evidence could not affect the testimony of the victim. The testimony of the victim should and ought to be accepted. He places reliance upon the decision of Supreme Court in Chikkarangaiah and others v. State of Karnataka, (2009) 17 SCC 497 holding that minor infirmities and omissions in the evidence could not affect the testimony of the victim. Learned Senior Additional Advocate General also relied upon the decision in State of Uttar Pradesh v. Naresh & Others, 2011 (4) SCC 324 to urge that where inconsistencies, contradictions, exaggerations or embellishments were of a minor nature it would not affect the case of the prosecution. In that case Court holds that when evidence is recorded, after long a period of time discrepancies or embellishments are bound to occur because of lapse of time and the trauma through which the witnesses have gone through. The testimony of the victim should and ought to be accepted. We do not doubt this proposition which has been pronounced as a principle of law by the Supreme Court. But what we find from the present case is a situation that other independent witnesses who were examined refused to support the prosecution case, so much so, even the accused were not identified by the witnesses in Court who have stated that the accused who were present there were not the persons involved in the crime. We cannot understand as to why, if the incident involved more than two of the accused who were apprehended, the other four accused who participated in the crime according to the testimony of the victim were not apprehended nor any attempt was made in that direction. But leaving that aside, this factor by itself may not be solely sufficient for doubting the case of the prosecution, the identity of the accused still remains shrouded in mystery. In these circumstances, we cannot allow sentiments to over take the settled principles of criminal law that the incident must be established beyond any reasonable doubt before any guilt can be attributed. 12. It is urged that evidence of PW3 Bir Singh who has turned hostile, his evidence can still be relied upon for the purpose of convicting the accused. We are aware of the principle falsus in uno, falsus in omnibus does not apply in criminal cases in India. In other words, the Court has to sift the chaff from the grain. It is urged that evidence of PW3 Bir Singh who has turned hostile, his evidence can still be relied upon for the purpose of convicting the accused. We are aware of the principle falsus in uno, falsus in omnibus does not apply in criminal cases in India. In other words, the Court has to sift the chaff from the grain. But when we repreciate his evidence, we do not find he supports the prosecution especially when he states that the accused did not loot any articles or money from the "khan". We need not to say anything more. 13. In Vikramjit Singh alias Vicky v. State of Punjab, 2007 Cri. L.J. 1000 the Court holds : "21. Furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contended by Mrs. Kochar but by reason thereof only we cannot hold the appellant guilty of commission of a heinous offence. In view of their statements in the cross-examination giving a complete go-bye to what had been stated in the examination-in-chief, it is not possible to rely even upon a part of their statement. (p.1006) 14. In these circumstances, criminal appeal No.725 of 2002 is dismissed and the appeal No. 378 of 2002 is allowed. The accused are acquitted of the offences charged for. Bail bonds furnished by the accused are discharged.