JUDGMENT : Smt. V.K. Tahilramani, J. All these appeals are directed against the judgment and order dated 02.03.2007 passed by the 2nd Ad-hoc Addl. Sessions Jude, C.R. No.8, Sewree, Mumbai in Sessions Case No.344 of 2003 and 264 of 2004. By the said judgment and order, the learned Sessions Judge convicted all the appellants under Sections 396, 397 and 449 read with 34 of IPC and sentenced them as follow:- Convicted u/S. Sentenced to 396 Imprisonment for life and fine of Rs. 5000 each IDRI for 6 Months. 397 R.I. for 7 Years 449 r/w 34 RI for 10 Years & fine of Rs. 1000 each IDRI for 1 month. The learned Sessions Judge also directed that the substantive sentences of imprisonment shall run concurrently. For the sake of convenience, we shall refer to the appellants as they were referred to before the trial Court as follow: Appeal No. Name of the Accused Referred in Trial Court 695 of 2007 Ashok Appa Chavan Accused No. 1185 of 2007 ChandyaRamswarup Pawar Accused No. 2 1195 of 2007 EjaboolJan Mohd. Shaikh Accused No. 3 694 of 2007 ManojkumarPradeep Gupta Accused No. 4 747 of 2007 Kathlya@ Ramesh Raja Chawan Accused No. 5 2. The prosecution case briefly stated, is as under: (a) First informant PW 1 Swarup was residing on 2nd Floor in Mamata Co-op. Society, Rifle Range Road, Ghatkopar (W), Mumbai -400 086. PW 32 Vishal Mehta was residing on the ground floor of the same building. Vishal was residing there along with his father Nautam Mehta, his mother Hansaben and his brother Jay. On 19.01.2003, all of them went to sleep. Thereafter, all the appellants along with accused No.6 entered into the flat and they committed dacoity. In the course of dacoity, they committed murder of Nautam Mehta, Hansaben Mehta and Jay Mehta as well as Maruti, the watchman of the building by assaulting them with iron rod and sticks. PW 4 Rupesh who was residing in the same building got up in the night to study. He heard sounds outside. On looking outside the window, he saw 5-6 persons standing near his car. He felt his car was broken so he called the police as well as his friend PW 1 Swarup who was residing in the same building. PW 4 Rupesh who was residing in the same building got up in the night to study. He heard sounds outside. On looking outside the window, he saw 5-6 persons standing near his car. He felt his car was broken so he called the police as well as his friend PW 1 Swarup who was residing in the same building. PW 1 Swarup in turn called PW 6 Shashikumar who was residing on the first floor at about 3 a.m. Shashikumar came out in the balcony. He saw the watchman was not in his place. One of the 5-6 persons saw him and threw a brick at him, then the said person gave a signal to his associates and all of them ran away. PW 1 Swarup lodged his F.I.R. Thereafter investigation commenced. (b) The dead bodies were sent for the postmortem. PW 37 Dr. Kadam performed the postmortem on the dead body of Jay Mehta and PW 38 Dr. Kachare conducted the postmortem on the dead bodies of Nautam Mehta, Hansaben and Maruti. Cause of death in the case of Nautam, Hansaben, Maruti as well as Jay Mehta was head injury by hard and blunt object. All the accused came to be arrested. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions which was numbered as S.C No.344 of 2003. Thereafter, one more accused i.e original accused No.6 came to be arrested. His case was committed to the Court of Sessions which was numbered as S.C. No.264 of 2004. The trial in both the cases was held together. 3. Charge came to be framed against all the appellants as well as original accused No.6 under Sections 120-B of IPC, 449 r/w 120-B and alternatively r/w 34 of IPC, 342 r/w 120-B and alternatively r/w 34 of IPC, 395 r/w 120-B, 472 r/w 120-B and alternatively r/w S. 34 of IPC, 302 r/w 120-B and alternatively r/w 34 of IPC for causing death of Hansaben, Nautambhai, Maruti and Jay. Charge was also framed against all accused under Sections 396 of IPC, 397 of IPC and 135 of Bombay Police Act. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. Charge was also framed against all accused under Sections 396 of IPC, 397 of IPC and 135 of Bombay Police Act. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants along with original accused No.6 as stated in paragraph 1 above. Hence, this appeal. 4. We have heard the learned Advocate for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that no reliable evidence has been brought on record in relation to accused Nos.1, 2 and 4 to connect them with the crime. 5. There is no eye witness to the actual incident and the case is based only on circumstantial evidence. The circumstances are -that on the date of the incident, the appellants were seen at about 03.00 a.m. next to the building of the deceased as well as the complainant, ornaments were recovered at the instance of accused Nos.1 and 2 and weapons came to be recovered at the instance of the accused Nos.3 and 4. As far as the ornaments are concerned, it may be stated that none of the witnesses have identified those ornaments as belonging to the family of the deceased. So also PW 32 Vishal who is the son of the Nautambhai and Hansaben and the brother of Jay has not identified any of the ornaments as those belonging to his family. Thus, as far as the circumstance of recovery of ornaments is concerned, there is nothing to connect those ornaments with the incident in question. 6. As far as the weapons are concerned, again no witness has stated that these weapons were seen in the hands of any of the accused persons nor has the complainant or any witness identified any of the weapons as having been used in the incident. These weapons were sent to C.A. and as per the C.A. report, no blood was found on any of the weapons. These weapons were sent to C.A. and as per the C.A. report, no blood was found on any of the weapons. In these circumstances, there is nothing to connect these weapons with the crime. Thus, as far as accused Nos.1 to 4 are concerned, the prosecution is now relying only on the evidence of their identification by the witnesses in test identification parade (TIP) as well as in the Court. 7. Accused No.1 has been identified in TIP and before the Court by PW 7 Dhanraj. Accused No.2 has been identified in TIP and before the Court by PW 4 Rupesh. Accused No.3 has been identified by PW 6 Shashikumar in TIP as well as before the Court and accused No.4 has been identified by PW 4 Rupesh in TIP as well as before the Court. As far as accused Nos.1, 2 and 4 are concerned, the TIP was held on 06.02.2003 by PW 31 S.E.O. Mr. Yashwante. Learned advocates appearing for these accused persons have submitted that the identification by the witnesses in this TIP cannot be relied upon because there was every chance for the witnesses to see the accused persons before the TIP was held. In support of their contention, they have placed reliance on the evidence of PW 31 S.E.O. Mr. Yashwante who held the TIP. They pointed out that PW 31 S.E.O. Mr. Yashwante has stated that the TIP was held in the centre of the jail, Thane and it was held in a room which had a wall and jali. This means that where the parade was held that room consisted of a wall and wire mesh or grill. In such case, before reaching the room for identifying the witnesses in which the TIP was held, the witnesses would have had every opportunity to see the accused persons who were in the said room. It is also to be noted that the S.E.O. who held the TIP, had not asked the identifying witnesses whether they had any opportunity to see the accused persons prior to the TIP. It was necessary to put this question to the identifying witnesses in this case, especially, looking to the situation of the room in which the TIP was held i.e the room had a jali and it was situated in the centre of the jail. It was necessary to put this question to the identifying witnesses in this case, especially, looking to the situation of the room in which the TIP was held i.e the room had a jali and it was situated in the centre of the jail. Another factor which is noticed in respect of TIP is that when the accused persons took their place among dummies in TIP held on 06.02.2003, at that time both the panchas were in the room. Thereafter one of the panchas left the room to call the identifying witnesses. In such case, we are inclined to accept the submissions of the learned advocates that the possibility cannot be negativated that the panch witness would have told the identifying witnesses the place where the accused is standing in TIP. Looking to all these facts, we find it unsafe to rely on identification of accused Nos.1, 2 and 4 in the TIP held on 06.02.2003. 8. As far as accused No.2 - Chandya Pawar is concerned, we are of the opinion that his identification in TIP as well as before the Court cannot be relied upon. The reason is that PW 27 Panch Witness Mohan has stated that on 29.01.2003, he was called to Ghatkopar Police Station. He saw one accused with his face covered with veil. The police removed veil from the face of the accused. The said accused was accused No.2. Accused No.2 disclosed that he is willing to show the place of the incident. Thereafter, accused No.2 led the police and panchas to Mamata Co.Op. Society, Ghatkopar. Thus, the evidence of this witness shows that prior to holding TIP on 06.02.2003, accused No.2 Chandya Pawar had gone to the society where the incident took place and he pointed out the flat where the incident took place. Accused No.2 has only been identified by PW 4 Rupesh. Rupesh was residing on the ground floor of the building where the incident took place. As the veil of accused No.2 had been removed and thereafter it was not put on the face of accused No.2, PW 4 Rupesh who was residing in the very same building would have had an opportunity to see accused No.2 in police custody when he came to the building. As the veil of accused No.2 had been removed and thereafter it was not put on the face of accused No.2, PW 4 Rupesh who was residing in the very same building would have had an opportunity to see accused No.2 in police custody when he came to the building. When police and accused person came to a building, naturally there would be lot of curiosity and the people would want to know why the police had come to the building. In such case, PW 4 Rupesh who was on the ground floor would also have gone to see why the police had come and in such case, he would have had opportunity to see accused No.2. Looking to the fact that the face of accused No.2 was not covered with a veil, when he went to Mamata Society on 29.01.2003, we are not inclined to rely on his identification by PW 4 in the parade held on 06.02.2003 as well as his identification by PW 4 Rupesh before the Court. 9. As far as accused No.3 is concerned, PW 6 Shashikumar has identified this accused. PW 9 S.E.O. Mrs. Bramha held the TIP in respect of this accused. The said TIP was held on 10.03.2003. As far as the TIP in which accused No.3 was identified is concerned, we find no lacuna in it which was there in the TIP held by PW 31 S.E.O. Yashwanate on 06.02.2003. Moreover, nothing has been brought out in cross-examination of PW 29 S.E.O. Mrs. Bramha so as to disbelieve her testimony, hence, we have no hesitation in relying on the circumstance that PW 6 Shashikumar identified accused No.3. PW 6 Shashikumar has identified accused No.3 in T.I.P. as well as before the Court. Nothing has also been elicited in cross-examination of PW 6 Shashikumar so as to disbelieve his evidence. 10. As far as accused No.5 Kathlya @ Ramesh Raja Chawan is concerned, he has not been identified by any witness but it is pertinent to note that just outside the flat where the incident took place, chappals were found which came to be seized vide panchanama (Exh. 48). PW 20 Panch witness Navin has stated on 04.02.2003, he was called to act as a panch witness. One plastic bag in a sealed condition was shown to him. The seal was opened. A pair of chappal were inside. 48). PW 20 Panch witness Navin has stated on 04.02.2003, he was called to act as a panch witness. One plastic bag in a sealed condition was shown to him. The seal was opened. A pair of chappal were inside. Out of them, one chappal was put before the dog for smelling. At that time, eight persons were standing in a line. After smelling the chappal, the dog was taken near the eight persons who were standing there. The dog went near all the persons and he started barking at one person. The said person was accused No.5. This process was repeated three times and all occasions, the dog barked at accused No.5. PW 4 Rupesh has stated that on the night of the incident, he saw 5/6 persons were standing near his car which was parked outside the building. Then, he saw all the persons running away. Slippers (chappals) were found at the same spot i.e just outside the building and the dog has identified that the slippers were worn by accused No.5. 11. On the point of evidence of tracker dog, we may make useful reference to the decision in the case of Pandian Kanappan Nadar Vs. State of Maharashtra 1993 Criminal Law Journal 3883 wherein in relation to the evidentiary value of dog tracking evidence, it is observed as under: "Judicial notice must be taken of the fact that the training skills and the special qualities that are found in the police and the special qualities that are found in the police Dogs are now recognized as being of such a high caliber that in case such as detection of explosives, drugs etc. They are found superior and more effective than the most sophisticated instruments. In this background, one needs to take cognizance of the fact that for the purpose of tracking down a criminal, that special faculties, qualities and skills of the dog are aspects of which serious note must be taken. Where the police rely on such evidence, Courts would be more than fully justified in accepting it provided that it passes the test of complete scrutiny." 12. Where the police rely on such evidence, Courts would be more than fully justified in accepting it provided that it passes the test of complete scrutiny." 12. In a another decision of this Court in the case of Babu Magbul Shaikh Vs The State of Maharashtra 1993 (3) Bom.C.R. 309 it is observed as under: "It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specifically utilized for hunting and tracking because of their abnormally high talents. " So also, this Court (Coram : Smt. Ranjana Desai & Smt. V.K. Tahilramani, JJ) in a decision dated 10.10.2010 in case of Babu alias Ravindra Suresh Kamble Vs The State of Maharashtra Cri. Appeal No.78 of 2010 has relied on dog tracking evidence. In the present case not once but three times, the dog led to accused No.5 only and no other person. 13. As far as accused No.5 is concerned, there is another strong incriminating circumstance against him i.e an iron rod was found at the spot which was seized under panchnama (Exh. 48). PW 13 Yuvaraj was doing iron-smith business. He has identified accused No.5 as the same person who had come to him to get the said iron rod prepared. We find his testimony to be trustworthy, hence, we have no hesitation in relying on the same. Thus, on going through the evidence on record, we find that there is no credible and reliable material as far as accused Nos.1, 2 and 4 are concerned, however, as far as accused Nos.3 and 5 are concerned, the prosecution has proved that they are involved in the incident. In view of above discussion, we proceed to pass the following order:- ORDER i. Criminal Appeal No.695 of 2007 filed by accused No.1 -Ashok Appa Chavan, Criminal Appeal No.1185 of 2007 filed by accused No.2 Chandya Ramswarup Pawar and Criminal Appeal No.694 of 2007 filed by accused No.4 -Manojkumar Pradeep Gupta are allowed. The accused in these appeals are acquitted of the offences charged against them. They be released forthwith, if not required in any other case. ii. Criminal Appeal No.1195 of 2007 filed by accused No.3 -Ejabool Jan Mohd. The accused in these appeals are acquitted of the offences charged against them. They be released forthwith, if not required in any other case. ii. Criminal Appeal No.1195 of 2007 filed by accused No.3 -Ejabool Jan Mohd. Shaikh and Criminal Appeal No.747 of 2007 filed by accused No.5 Kathlya @ Ramesh Raja Chawan are dismissed. iii. Office to communicate this order to the concerned prison Authorities and to the Appellants who are in jail. iv. Writ of Order be expedited. 14. At this stage, we must record our appreciation for Advocate Mr. A.G. Toraskar who is on the High Court Legal Services Committee and has been appointed to represent the appellants in Cri. Appeal Nos.695 of 2007, 747 of 2007 and 1195 of 2007. We also wish to place on record our appreciation for Advocate Mr. Sandeep Dadwal who was appointed by the High Court Legal Services Committee to represent the appellant in Cri. Appeal No.694 of 2007. We found that they had very ably argued the appeals. Fees be paid to them as per rules. The said fees be paid to the Advocates Mr. Toraskar and Mr. Dadwal within four months from today.