Judgment A.I.S. CHEEMA, J. 1. This Appeal by State is against acquittal of the Respondents (original accused Nos. 1, 2, 4 to 6 and 8 to 10, hereafter referred as “accused” with their original numbers). The accused faced trial in the Sessions Case No.56 of 1998 before Additional Sessions Judge, Dhule for offence punishable under Section 395, 396, 397, 402, 412, 414, 457 read with 34 of the Indian Penal Code, 1860 (for short “I.P.C.”). During pendency of trial, accused No.1 absconded and his trial was separated and charge dated 14th February 2000, was framed against original accused Nos. 2 to 10. It included original accused No.3 Shrimant Vyankat Kale and original accused No.7 Das @ Paltya @ Gas @ Chindhya Bapu Bhosle. In the course of recording of evidence against original accused Nos. 2 to 10, accused No.1 was apprehended and charge was framed against him on 4th July, 2001 and witnesses examined till then were recalled. In the further trial, accused Nos. 3 and 7 absconded and thus trial was split up as regards accused Nos. 3 and 7. The trial as regards above Respondents (original accused) has been completed. They came to be acquitted by the Additional Sessions Judge, vide Judgment dated 11th July, 2002. Thus the present Appeal has been filed by the State. CASE IN BRIEF 2. The case of the prosecution in short, is as under: (A) Complainant Suchitra @ Chitra Avhad was residing with her husband Yuvraj Waman Avhad, fatherinlaw Wamanrao Vitthal Avhad and two small children at Dondaicha in a Bungalow known as “Krushna”. In the night between 4th 5th October 1997, she was sleeping with her husband and children in bedroom on upper floor. At about 3.00-3.30 a.m. she suddenly felt that her mouth and legs have been pressed by somebody. She could not shout. Suddenly there was a hit on her head and she started bleeding and became unconscious. She gained consciousness after 1520 minutes. She noticed that her husband was lying in a pool of blood and suffered bleeding injuries to his head. Two small children, Krushna aged 3 years and Apurva aged 8 years, were sitting on the cot half covering themselves with mattress. She tried to phone call but it was dead. She came to the ground floor and saw her father-in-law lying unconscious with head injury. She went to the gallery and shouted for help. Two small children, Krushna aged 3 years and Apurva aged 8 years, were sitting on the cot half covering themselves with mattress. She tried to phone call but it was dead. She came to the ground floor and saw her father-in-law lying unconscious with head injury. She went to the gallery and shouted for help. People gathered. The house had been bolted from outside. People admitted the complainant and the injured to Cottage Hospital. Complainant filed F.I.R. as above (Exhibit 42) while taking treatment in the Cottage Hospital Dondaicha and stated in the F.I.R. that as suddenly incident happened she was unable to say what all was stolen. She also mentioned that she has just learnt that her husband had expired. (B) In her supplementary statements, complainant Chitra informed police that in the night at about 3.00 3.15 a.m. she felt that her anklets are being removed and when she woke up, in the light she saw 45 persons in her room who were aged about 2025 years having fair complexion and stout body and they were talking in Adivasi language. When she tried to wake up, somebody assaulted on her head and she became unconscious. She informed that when she regained consciousness, she had seen some people on the ground floor also and also noticed the dacoits trying to push and take away their Maruti Car and then from another balcony she had called out the neighbours and the dacoits ran away leaving back Maruti Car. In the supplementary statement, complainant gave details of the various articles which had been stolen, including watch (Article 32), idol of Ganpati (Article 33), Liberty Chappal (Article 34) and shirt piece (Article 35). It was claimed that property worth of Rs.1,57,735/had been stolen by the dacoits. (C) P.I. Shashikant Rajhans (PW15) on coming to know of the dacoity, in the night itself had gone to the Cottage Hospital Dondaicha and came to know that complainant Chitra and her fatherinlaw Wamanrao were admitted to the hospital in the injured condition, while husband of complainant, namely Yuvraj was brought dead. Wamanrao was unconscious. The complaint of Chitra, Exhibit 49 was recorded and Crime No.140 of 1997 came to be registered. Wamanrao was shifted to Civil Hospital, Dhule. Dead body of Yuvraj was sent for postmortem, after drawing inquest panchnama (Exhibit 57). Wamanrao was unconscious. The complaint of Chitra, Exhibit 49 was recorded and Crime No.140 of 1997 came to be registered. Wamanrao was shifted to Civil Hospital, Dhule. Dead body of Yuvraj was sent for postmortem, after drawing inquest panchnama (Exhibit 57). The dog squad was called and from an iron bar used by the dacoits, the dog squad led the police to dead body of watchman Parshram Saindane which was in bushes and trees, near the bungalow of Chitra. Inquest panchnama (Exhibit 59) of the body of watchman was prepared and body was sent for postmortem. P.I. Shashikant prepared Spot Panchnama Exhibit 51. The spot had telltale signs of dacoity which had taken place there. The Investigating Officer seized articles from the spot having blood stains. The blood stained clothes of Wamanrao were also collected as well as gown which was wore by complainant Chitra at the time of incident, was also attached as it had blood stains. Necessary panchnamas were recorded. Statements of witnesses came to be recorded. On 6th October 1997, P.I. Shashikant handed over investigation to P.I. Krishnarao Salunke (PW16). (D) P.I. Salunke seized further articles, including wooden rod from near railway line of Dondaicha on 9th October 1997 which had blood stains. The articles seized were sent to C.A. for chemical analysis and C.A. Reports were obtained. (E) A.P.I. Motilal Shere (PW14) was working with S.P., Buldhana in November, 1997 and with reference to another Crime No.64 of 1997 registered with Sindkhed Raja Police Station, Dist Buldhana, in which about 810 persons had been arrested, he was directed by S.P. and with other police staff he went to Bairsia, Dist Bhopal on 17th November 1997. There, with the assistance of local police and five Panchas, he went to the house of accused No.1 Sanjay and in the search carried out in the presence of wife and parents-in-law of Sanjay, 107 articles came to be seized which included Articles 32 to 35, referred above. Panchnama (Exhibit 151) in that regard was prepared. (F) Investigating Officer P.I. Salunke (PW16) came to know about the dacoits who had been arrested and articles which had been seized and he requested the Executive Magistrate, Buldhana to conduct I.P. i.e. Identification Parade of the articles. Panchnama (Exhibit 151) in that regard was prepared. (F) Investigating Officer P.I. Salunke (PW16) came to know about the dacoits who had been arrested and articles which had been seized and he requested the Executive Magistrate, Buldhana to conduct I.P. i.e. Identification Parade of the articles. On 5th December 1997, the I.P. was held in which complainant Chitra, her daughter Apurva, Narendrasing Rajput (PW8) and Prabhakar Gite (PW9) identified articles with reference to the present crime. The I.O. arrested the accused persons with reference to present crime on 2nd February, 1998. The Investigating Officer moved Tahsildar Gopalrao Tayade (PW6) and PW6 conducted T.I. (Test Identification) Parade on 13th February 1998 at Tahsil Office Sindkhed Raja in which complainant Chitra (PW3) participated. One Dayaram Naik (PW7) also participated as he had claimed to have seen three of the accused in the field of his employer some days before the incident and had expressed suspicion. Complainant Chitra identified original accused Nos.8, 5, 9, 1 and 2 in the T.I. Parade and PW7 identified accused Nos. 8, 9 and 1 in the T.I. Parade. Investigating Officer took other required steps to complete the investigation and charge-sheet came to be filed against the 10 accused persons. 3. As mentioned, earlier charge was framed on 14th February 2000, against accused Nos. 2 to 10 and when accused No.1 was apprehended, the charge was framed against him on 4th July, 2001. Prosecution examined 17 witnesses to prove its case. The defence of the accused persons is of total denial and false involvement in the case. The trial Court, after appreciating the oral and documentary evidence, has acquitted the above Respondents (accused), hence the present Appeal. RIVAL CLAIMS 4. The Appeal raises various grounds and learned A.P.P. has accordingly argued that the trial Court has not properly appreciated the evidence available on record. Trial Court held that the dacoity has been proved as well as the fact that Yuvraj, Wamanrao and Parshram were brutally murdered by dacoits. It should have been appreciated that Articles 32 to 35 were seized from accused No.1 and had been duly identified by the complainant and other witnesses and thus connection of the accused was established. The witnesses had also identified the accused persons in T.I. Parade and the offence was established. It should have been appreciated that Articles 32 to 35 were seized from accused No.1 and had been duly identified by the complainant and other witnesses and thus connection of the accused was established. The witnesses had also identified the accused persons in T.I. Parade and the offence was established. The direct and circumstantial evidence has been ignored and the Judgment of the trial Court cannot be upheld and the same deserves to be set aside. 5. Against this, learned counsel for the Respondents argued that the F.I.R. did not claim that the complainant had seen the persons who had come to commit the dacoity and only in subsequent supplementary statement she claimed to have seen some persons in the house and pushing their vehicle. She identified different persons in the T.I. Parade vis-a-vis the persons at the time of her examination-in-chief and still other persons when further examination-in-chief was held. Same is the condition of the other witness PW7 Dayaram. PW5 Jhanakrao Shah, the neighbour who first responded to calls of complainant for help, had not seen any of the dacoits. The T.I. Parade of accused held by PW6 was not as per the procedure. PW9 Prabhakar Gite, maternal uncle of complainant who claimed to have gifted the watch, Article 33, to the complainant, referred to the same at one place to be of the shape of rabbit while at another place to be of the shape of mouse. The Panchas of the recovery of articles from the alleged house of accused No.1 turned hostile. Investigating Officer Shashikant had seen that there were finger prints of culprits on the car but no scientific investigation was done. Thus, according to the learned counsel for the Respondents (accused) the offence is not established and the trial Court rightly acquitted accused persons. DACOITY AND MURDERS TOOK PLACE NO MORE IN DISPUTE 6. Having heard counsel for both sides, we have gone through the evidence available on record. Looking to the evidence which has come on record and the arguments, there does not appear to be dispute regarding the fact that in the night concerned indeed dacoity took place at the house of the complainant Chitra. Spot Panchnama Exhibit 51 and evidence of PW4 and Investigating Officer PW15 brings on record various details which show the bungalow to have been ransacked. Spot Panchnama Exhibit 51 and evidence of PW4 and Investigating Officer PW15 brings on record various details which show the bungalow to have been ransacked. Similarly, prosecution has proved on record the inquest panchmana of the three persons who died as well as their postmortem reports have been brought on record and there is no dispute that these persons died due to the attack by the dacoits at the time of incident and they suffered culpable homicide amounting to murder. Even complainant Chitra had head injury regarding which certificate Exhibit 56 has been proved. The clothes of the victims had blood stains and C.A. Reports are also on record. DOUBTFUL IF COMPLAINANT WAS ABLE TO SEE DACOITS AT THE TIME OF INCIDENT 7. Material question is whether the prosecution has connected the Respondents-accused with the crime in question. Regarding the incident, material evidence is of PW3 Suchitra @ Chitra. She deposed that at about 2.30 3.00 a.m. she had a feeling that somebody was pressing her legs and she woke up. She felt that somebody was pressing her mouth also and she received blow on her head and became unconscious. At that time she had heard the words “Meli Re”. These are words in Marathi, meaning “She is dead”. But then other evidence which has come on record is that the dacoits were speaking Adiwasi language. PW3 complainant Suchitra deposed that after 1520 minutes she regained consciousness and saw her husband lying on the floor in pool of blood and 45 persons armed with sticks and iron rods, were standing near cupboard. She heard talk of 45 persons from another room. She could not understand the language they were talking in. She could make out that these persons went to the ground floor. She claims that from passage coming to the first floor she saw that her father-in-law was lying in a pool of blood on the ground floor. She tried to make her father-in-law awake. She then went to the first floor and from one of the balcony saw that 1012 persons were pushing away their Maruti Car. She then went to another balcony and started shouting towards row of bungalows near their house as she had seen light in the bungalow of one Mr. Shah residing nearby. She tried to make her father-in-law awake. She then went to the first floor and from one of the balcony saw that 1012 persons were pushing away their Maruti Car. She then went to another balcony and started shouting towards row of bungalows near their house as she had seen light in the bungalow of one Mr. Shah residing nearby. There is evidence of PW5 Jhanakrao Shah who resides near the house of complainant and he deposed that at about 3.30 a.m. during that night he heard complainant shouting “Wachawa Wachawa” and he woke up. People from colony came and opened the latch of the house of the complainant which had been closed from outside and entered the house and found Yuvraj and Wamanrao lying in pool of blood and the complainant in injured condition and it was noticed that theft of articles had taken place and the thieves had fled. Evidence of the complainant shows that her husband died at about 5.00 5.30 a.m. but she was told about the same at about 9.00 9.30 a.m. Her father-in-law died after 8 days of the incident. In evidence complainant has given details of articles which were stolen. In the cross-examination of the complainant, defence brought on record facts that at the time of giving of complaint the complainant did not claim that she had seen the persons before she was hit on the head or after gaining back her consciousness. She was confronted with her supplementary statement dated 6th October 1997 also. She stated in the cross-examination that moment she received blow, she became unconscious and saw the dacoits when she regained consciousness. She deposed that it would not be proper to say that before receiving blow on the head she saw the dacoits. She resiled from portion “A” of her statement dated 6th October 1997 (Exhibit 156) that before she was hit, she had seen 45 persons. The trial Court considered these omissions to doubt the veracity of the complainant. We find that even if it was to be said that complainant PW3 when she gave F.I.R. Exhibit 49, must be under trauma and may not have given all the details in the F.I.R., but still we find that even the other evidence brought on record to identify the accused persons and connect them to the dacoity is poor and not inspiring confidence. We will discuss this. We will discuss this. T.I. PARADE OF ACCUSED 8. The T.I. Parade was conducted by PW6 Gopalrao Tayade. As Panch he took one Laxman Buwa who was his subordinate and thus not an independent person. If the evidence of PW3 Suchitra @ Chitra is considered, in the T.I. Parade as per the memorandum Exhibit 74 recorded, she identified accused Nos. 8, 5, 9, 1 and 2. Against this, at the time of her evidence (in Para 8) she identified accused Nos.9, 8, 7 and 5, while when she was again recalled for further examination-in-chief (after accused No.1 was arrested) she identified accused No.2, 8, 1, 5 and accused No.4. Thus there is no consistency. . PW7 Dayaram Naik was examined to prove that a few days before the dacoity took place, he had seen in the field of his master, which is about 3½ K.M.s away from the spot, three persons who were strangers coming there for 23 days and had even questioned them but could not understand their language. In Para 1 of his evidence, Dayaram claim that one person was fair and tall and other was of black complexion. In his further evidence (Para 8) he claims that two of the three persons were fair complexion and one was white black complexion. Even this witness in the T.I. Parade, as per memorandum, identified accused Nos. 8, 9 and 1 but at the time of evidence, identified accused Nos.4, 7 and 8 and after recall identified accused Nos.1, 2 and 8. Looking to such evidence of PW's 3 and 7, the identification of accused persons done by PW's 3 and 7 in T.I. Parade or at the time of their evidence, becomes doubtful. 9. Coming to the T.I. Parade which was held, the memorandum is at Exhibit 74 and Panchnama at Exhibit 36. Memorandum claims that 60 persons were involved in addition to 9 accused for the T.I. Parade. PW7 Dayaram Naik, however, claimed that there were 100-150 persons. The evidence of PW7 Dayaram Naik (in Para 11) shows that when he had gone for the T.I. Parade, the persons to be identified were sitting in the compound of the Tahsil Office. Memorandum claims that 60 persons were involved in addition to 9 accused for the T.I. Parade. PW7 Dayaram Naik, however, claimed that there were 100-150 persons. The evidence of PW7 Dayaram Naik (in Para 11) shows that when he had gone for the T.I. Parade, the persons to be identified were sitting in the compound of the Tahsil Office. Now, if the evidence of Tahsildar Gopalrao (PW6) is perused, he deposed (in Para 17) that it is correct that building where police station, Shindkheda and Tahsil office are situated, is half circle in shape i.e. “C” in shape. He admitted that it was correct that there is open ground between the premises of police station and premises of Tahsil Office. If this is kept in view, it is clear that the accused were exposed to the witnesses coming for identification by making them assemble in the compound before the Parade. There is no evidence that the faces of the accused were covered before or while bringing them for T.I. Parade. The evidence of PW7 is that in the T.I. Parade the persons other than accused were of more than 45 years of age while the accused were of younger age. Only accused No.8 was 43 years old. Thus, what appears is that the dummies taken, in appearance, were not of similar age to that of the accused persons. The evidence of PW6 Gopalrao shows that he admits that he put all the 9 accused at one time for identification parade instead of putting two of them at a time in the identification parade. 10. The guidelines laid down by the High Court for holding of Identification Parades are contained in Criminal Manual, Chapter I Para 16. Relevant parts from Para 16(2) are as under: “(a)............. to (f)................... “(g) The witnesses should be prevented from seeing the suspect before he is paraded with other persons, and...... (h) The suspect should be placed among persons (if practicable eight or more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life. Two suspects of roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different person on each parade. Two suspects of roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different person on each parade. (i) All members of a group of suspects more than two should not be paraded together. There should be more parades than one, each including not more than two. Two suspects of obviously dissimilar appearance should not be included in the same parade. Identification numbers should be concealed.” Relevant parts of guidelines issued by the Government in this regard, in Para 16(3) are as under: “(i)............... and (2)............... “(iii) Two independent respectable persons (not being persons connected with the Police), should be first called up......... (iv)....................................... (v) If there is only one accused persons to be identified, there should be atleast half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single identification parade.............” Thus, the guidelines regarding holding of T.I. Parade were not followed and it would be risky to rely on such T.I. Parade. RECOVERY OF ARTICLES FROM ACCUSED NO.1 11. The evidence of PW14 Motilal Shere is that 810 persons had been arrested in another Crime No.64 of 2007 by Sindkhedraja Police and they were under arrest. As per directions of S.P., he went to village Bairsia in Dist Bhopal and on 17th November, 1997 along with local police and 5 Panchas went to, what he says was, the house of accused No.1 Sanjay. The witness claims that at the house concerned, Uma, wife of accused No.1 and her parents were present and he seized 107 articles including Articles 32 to 35. he prepared Panchnama Exhibit 151. He claims that on the Panchnama, thumb impressions of the wife of accused No.1 and her parents were also taken along with signatures of Panchas. He admits that accused No.1 Sanjay was in custody at the concerned time but the accused No.1 was not taken along while going to take search of house concerned. In the cross-examination, the accused have denied that the Panchnama bears thumb impressions of the wife of accused No.1 or her parents. It is also denied that the house concerned was of accused No.1. In the cross-examination, the accused have denied that the Panchnama bears thumb impressions of the wife of accused No.1 or her parents. It is also denied that the house concerned was of accused No.1. . PW13 Nanhakha is one of the Panch to the document Exhibit 151. He turned hostile and has not supported the prosecution. PW10 Kaushalya is another Panch of the Panchnama Exhibit 151 and she deposed that with police she had gone to the house of accused No.8 Ramesh where three pants and two shirts were seized. One Panchnama was put up to her and she admitted the contents. The document was marked Exhibit 85. However, the trial Court in the evidence of PW10 itself recorded, after marking Exhibit on the document, that it was not original and so could not be marked Exhibit as the original was not brought. PW10 Kaushalya has deposed further that after searching the house of accused No.8 Ramesh, search was carried out of another house in front of the house of accused Ramesh. She has not deposed that it was house of accused No.1 or to whom the house belonged. Her evidence is that one idol of Lord Ganesh and one clock and other household articles were seized from there. She identified Articles 32 and 33 as the same. Her cross-examination shows that at the time of alleged search, she kept standing outside the house and did not know to whom the house belongs and only police had gone inside and brought out one pant and shirt. Subsequently, when the witness was recalled after accused No.1 was arrested, she declined to identify him and claimed that she does not know his house. She repeated that she kept sitting outside the house and only police had gone inside the house. She was declared hostile. . The result of the above discussion is that the prosecution did not take along accused No.1 to the house concerned and when the accused are challenging that the house was of accused No.1 or that persons present there, were related to him, no other evidence is available to connect accused No.1 with the articles seized, except the evidence of PW14 P.S.I. Motilal Shere. The trial Court discussed the evidence of search carried out and did not accept the evidence. We also find that the evidence on this count would be risky to rely on. The trial Court discussed the evidence of search carried out and did not accept the evidence. We also find that the evidence on this count would be risky to rely on. IDENTIFICATION OF ARTICLES 12. The identification of articles was carried out on 5th December 1997 and Exhibit 96 and 97 were prepared in this regard. The same was held by PW17 Smt. Shobha Deshmukh, the Naib Tahsildar. PW3 Suchitra, the complainant, PW8 Narendrasing Rajput and PW9 Prabhakar Gite took part in the same. PW3 Suchitra deposed that there were various articles displayed and she identified the idol of Shree Ganesh, shirt piece, pair of chappals and watch. She deposed that Articles 32 to 35 were the same. She claimed that they belonged to her. PW8 Narendrasing Rajput claimed that at the time of Vastu Shanti of the house of the complainant before the incident took place, he had gifted the statue of Lord Ganesh. He proved purchase receipt Exhibit 79 in this regard. According to him, when he was called for identification, he picked out Article 33 as the same idol. He admitted in the cross-examination that there were number of similar items like Article 33 in the shop at Jaipur from where he had purchased the idol. PW9 Prabhakar Gite is maternal uncle of complainant Suchitra and he claimed that at the time of Vastu Shanti he had presented wrist watch in the shape of rabbit. He claims that he was also called for identification on 5th December 1997 and from the various articles displayed, he had identified the wrist watch which is Article 32. In the further evidence after recall, the witness claimed that the watch concerned was of the shape of mouse (may be because the image is not very defined). PW11 Panch Ramdhan was Panch in the identification parade of the articles. He supported the PW8 Narendrasing Rajput that he had come and identified idol of Shree Ganesh. His evidence shows that when complainant came there and saw the idol of Lord Ganesh, she started crying. According to him he could not bear the pain of the complainant and left the place however he had signed the Panchnama Exhibit 96 and memorandum Exhibit 97 and identified the Article 33, idol of Shree Ganesh. . His evidence shows that when complainant came there and saw the idol of Lord Ganesh, she started crying. According to him he could not bear the pain of the complainant and left the place however he had signed the Panchnama Exhibit 96 and memorandum Exhibit 97 and identified the Article 33, idol of Shree Ganesh. . From the above discussion, it can be said that the complainant and PW's 8 and 9 in the identification of articles identified the Articles 32 to 35 as articles which were belonging to the complainant. Even if this was to be said, the recovery from accused No.1 being doubtful, the link of the articles with the accused is not duly established. LINK OF ACCUSED WITH THE DACOITY AND MURDERS NOT ESTABLISHED 13. We have gone through the Judgment of the trial Court. The trial Court pains takingly discussed the evidence with various details and found that the dacoity and murders which took place are not connected with the accused persons who were in the dock. We are aware that there were three murders at the time of dacoity and the dacoity did take place. We find that the evidence is quite shaky when it comes to identification of the accused persons to link them with the dacoity. It is very doubtful if the complainant really had the opportunity to see the dacoits so as to identify them later. Similar is the condition of PW7 Dayaram whose statement was recorded by the police much later than the incident. There was no reason why the police did not take along accused No.1 who was in the custody, for recovery of the alleged articles from the house in Bairsia. The evidence itself shows that there were other persons residing in that house concerned and thus exclusive possession cannot be attributed to accused No.1, apart from the fact that link between the accused No.1 and those persons present in the house is also not established. Further, link between Accused No.1 with other accused is also not established. Looking to all these aspects, we are in agreement with the trial Court that the offence against the accused persons is not established. 14. In the result, we find no substance in the Appeal by the State. The Appeal is dismissed. We quantify the fees of Advocate Shri R.D. Sanap, appointed Counsel for accused at Rs.8,000/- (Rupees Eight Thousand).