JUDGMENT : 1. As these five appeals arise out of the same judgment and order, with the consent of learned advocates appearing for the respective parties, they were heard together and are being decided by this common judgment. 2. These appeals arise out of the same judgment and order dated 1.7.2000 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No.190 of 1998 whereby the present appellantsoriginal accused were convicted and sentenced to undergo SI for seven years with fine of Rs.5,000/- each, in default, to suffer further RI for six months for the offence punishable under section 395 of Indian Penal Code (hereinafter referred to as “IPC” for short). Criminal Appeal No.678 of 2000 has been filed by original accused Nos.2,3,7 and 8, Criminal Appeal No.801 of 2000 has been filed by original accused No.1, Criminal Appeal No.853 of 2000 has been filed by original accused No.4, Criminal Appeal No.859 of 2000 has been filed by original accused No.6 and Criminal Appeal No.918 of 2000 has been filed by original accused No.5. 3. Short facts of the case of the prosecution are that a Metador of the ownership of the complainant- Yusufbhai Mushabhai Sandhi used to ply between Rajkot- Mahuva for transportation of evening newspaper “Akila” from Rajkot to Mahuva in which Ejaj Sabir was the Cleaner. On their return from Mahuva to Rajkot, carrier boys of Maruti Courier namely, Manjibhai Gordhanbhai and Poonam Courier namely, Rajeshbhai Suryakantbhai Shah used to travel with their courier bags in the said metador. On 9.7.1998 at about 8.15 p.m., Manjibhai Gordhanbhai of Maruti Courier boarded the said metador from Savarkundla with three bags and Rajeshbhai Suryakantbhai Shah of Poonam Courier boarded from Amreli with three bags. Five other passengers(accused) also boarded from Amreli and at about 9.15 p.m., they left Amreli for Rajkot. When they reached Village Jungvad on Bhavnagar-Rajkot Highway, one of the five passengers sitting on the rear seat of the driver’s side suddenly placed a knife at the neck of the complainant and rest of the five passengers showed knife to carrier boys and Cleaner to stop the vehicle. When they reached Village Jungvad on Bhavnagar-Rajkot Highway, one of the five passengers sitting on the rear seat of the driver’s side suddenly placed a knife at the neck of the complainant and rest of the five passengers showed knife to carrier boys and Cleaner to stop the vehicle. Upon stopping the vehicle, a black coloured Tata Sumo stopped ahead of the metador and two persons armed with sword and knife got down from the said Tata Sumo and asked the complainant to get down from the metador and committed dacoity after taking them to the nearby field by tying their hands and legs. All the seven accused thereafter ran away towards Jungvad in the Tata Sumo. Thereafter, the complainant and two carrier boys came to Atkot in chhakdo rickshaw and the complainant informed press reported Vijaykumar Hemrajbhai of Atkot which was passed on to Assistant Superintendent of Police, Gondal and D.S.P., Rajkot(Rural) and requested to take immediate action for overpowering the dacoits. The complainant then went to Atkot Outpost falling under Jasdan Police Station and recorded his complaint on 10.7.1998 at 1.00 a.m. In pursuance of the said complaint, investigation started and the accused were arrested. As there appeared prima facie case against the accused, a charge sheet was filed against them. Thereafter, charge was framed against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 To prove the guilt against the accused, prosecution examined as many as twentyone witnesses. The prosecution also relied on several documentary evidence. After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded. 3.2 On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to the present appeals by the original accused. 4. Heard learned advocate, Mr. J.S.Yadav for the appellants-original accused and learned Additional Public Prosecutor, Ms. Reeta Chandarana for the respondent-State of Gujarat in all the appeals. 5. Mr. 4. Heard learned advocate, Mr. J.S.Yadav for the appellants-original accused and learned Additional Public Prosecutor, Ms. Reeta Chandarana for the respondent-State of Gujarat in all the appeals. 5. Mr. Yadav, learned advocate for the original accused, submitted that the star witnesses namely, P.W.No.10-Yusufbhai Mushabhai, who is the complainant and owner-cum-driver of the Matador, P.W.No.12- Ejajbhai, who is the Cleaner of the Matador and P.W.No.15-Rajeshbhai Suryakantbhai, who is the courier boy of Poonam Couriers, have not supported the case of the prosecution, however, the trial court has convicted the accused on the ground that they were identified in the identification parade. According to him, the test identification parade has not been held as per Rule 181 of the Gujarat Police Manual, 1975. Taking this Court through sub-rule (2) of Rule 181 of the Gujarat Police Manual, 1975, he submitted that the witnesses were tutored before coming to the test identification parade. As per Rule 181(2)(b)(i), number of persons to be mixed should not be too few or too many and separate parades for not more than two at a time should normally be held, however, more than required numbers of persons were there in the queue. Drawing attention of this Court on Exh.22, which is the panchnama of the test identification parade, he submitted that in the present case, there were 37 persons standing for test identification parade and all eight accused were sought to be identified in a single test identification parade. He further submitted that nothing is forthcoming on the record as to whether dummies of similar looks, age group and features are called and made to stand in queue and also whether standing position of the accused is changed after examination by each witness or not. Further, no features of face or physic or looks of the dummies and the accused were noted or compared while holding the test identification parade. Further, test identification parade should be held in broad day light by giving absolutely independent, fair, proper and just opportunity of meeting the ends of justice to the accused but in the case on hand, test identification has been held between 7.45 p.m. and 9.15 p.m. and therefore, no reliance can be placed on the test identification parade. Further, test identification parade should be held in broad day light by giving absolutely independent, fair, proper and just opportunity of meeting the ends of justice to the accused but in the case on hand, test identification has been held between 7.45 p.m. and 9.15 p.m. and therefore, no reliance can be placed on the test identification parade. Moreover, panchas of test identification parade namely, P.W.No.5- Hasambhai Husenbhai and P.W.No.13-Prafulbhai Labhashankerbhai and panchas of panchnama of place of incident, P.W.No.2-Adabhai Hamirbhai and P.W.No.3- Jitendra Pranshanker Joshi have not supported the case of the prosecution and have been declared as hostile. He further submitted that even though the charge mentions robbing of amount from the victims, none of the victims stated to have been robbed or looted either in the complaint or in their evidence and therefore, the very foundation of the case of the prosecution is ill-founded and without any basis and therefore, conviction of the appellants-original accused was unjust and improper and therefore, the appellants may be acquitted by giving them benefit of doubt. He relied upon the following decisions: (a) Judgment dated 22.12.1995 rendered in Criminal Appeal No.911 of 1990 in the case of State of Gujarat vs. Mohanlal @ Munno Usmanbhai Chauhan reported in 1996(1) G.L.H. 919 . (b) 1988(1) G.L.H. Page 264 in the case of Motilal Gajarbhai Chasisiya vs. State of Gujarat. (c) 2004 Cri. L.J. 136 in the case of Rapani Laxman and etc. vs. State of A.P. (d) 2007 Cri. L.J. 2573 in the case of Karan alias Baasha Shyam Pawar vs. State of Maharashtra. 6. Learned APP, Ms. Chandarana, for the State, drawing attention of this Court towards the depositions of complainant-P.W.No.10-Yusufbhai Mushabhai, Cleaner of the Matador-P.W.No.12-Ejajbhai, Courier boy of Poonam Couriers-P.W.No.15-Rajeshbhai Suryakantbhai, panch witnesses of the panchnama of scene of offence namely, P.W.No.2-Adabhai Hamirbhai, P.W.No.3-Jitendra Pranshanker Joshi, panch witnesses of test identification parade namely, P.W.No.5- Hasambhai Husenbhai and P.W.No.13-Prafulbhai Labhashankerbhai and Mamlatdar-P.W.No.Yasvinikumar Dayashanker Shrivastav as well as panchnama of test identification parade at Exh.22, submitted that case against the accused has been proved by the prosecution beyond reasonable doubt through the evidence of these witnesses and hence, the accused was rightly convicted and sentenced and therefore, no interference is called for in the same. 7. 7. I have gone through the rival submissions made by learned advocates for the respective parties together with the oral as well as the documentary evidence on record as also the findings arrived at by the trial court in the impugned judgment and order. I have also gone through the decisions relied on by the learned advocate for the appellants. 8. It appears that the trial court has placed reliance on the depositions of P.W.No.17- Manjibhai Gordhanbhai at Exh.50 and P.W.No.4- Yasvinikumar Dayashanker Shrivastav-Executive Magistrate at Exh.20 as well as panchnama of test identification parade at Exh.22. It is clear from the panchnama of test identification parade that all the witnesses, who were called for test identification parade, have identified all the accused, who were standing in a queue with rest of the dummy persons and though primafacie P.W.No.17-Manjibhai Gordhanbhai has supported the case of the prosecution, the way in which the test identification parade has been held creates many doubts more particularly because it has come on record that inspite of the fact that the first witness namely, Yusufbhai has identified all the witnesses standing in chronology with other persons namely, 4, 10, 15, 19 and 20 and accordingly, they were identified and thereafter, another witness was called for identification of the accused. Before arrival of another witness, inspite of the liberty granted to them to stand as per their choice in between the dummy persons, who were already standing in a row, they stood at the same place and position, i.e. 4,10,15,19 and 20. Therefore, in my view, if the first witness had identified all the accused, then before the second witness could come for identification, since liberty had been given to stand as per their choice, natural human tendency of the person would be to stand at a place different from the place they stood earlier, however, they stood at the same place, creating doubt about the manner in which the test identification parade was held. It further appears that in a room of the size of 20x18 feet, 37 persons were circled for identification including 8 accused, which is nothing but violation of Rule 181 of the Gujarat Police Manual, 1975 prescribed for holding the test identification parade. The procedure for holding test identification parade has been laid down in Rule 181(2) of the Gujarat Police Manual, 1975, which reads as under: “181. The procedure for holding test identification parade has been laid down in Rule 181(2) of the Gujarat Police Manual, 1975, which reads as under: “181. Holding of Identification Parade.- (1) … Procedure for Identification Parade (2) (a) Before the Identification Parade:- (i) the accused or suspect, at the time of is arrest to be told that he is to be put on Test Identification Parade. (ii) The Investigating Officer should screen the lock-up in which the suspect is kept before sending to jail. (b) At the time of parade and after :- (i) the number of persons to be mixed should not be too few or too many. It is better to have separate parades for not more than two at a time. However, it is advisable to mix up the accused or suspect with other person in the proportion of 1 to 9 and for every additional accused or suspect the number of persons to be mixed should be increased by 5. (ii) Police officers should completely obliterate themselves after arranging the parade. (iii) Witnesses to be kept away at a distance and called one by one. (iv) After identification witnesses should not be allowed to mix with other witnesses who are still to be forwarded. (v) Any objection by the accused or suspect for the presence of any person at the parade should be given proper consideration. (vi) In case of deformity or special marks suitable arrangements should be made to bring in uniformity. (vii) In cases where an accused or suspect whose identification is necessary is lying in hospital, the identifying witnesses should be kept out of sight of the Ward in which he is lying and the accused or suspect should be shown to the panchas and given the option of having his cot changed if he so desires. The panchnama should show whether this was done or not and should also show how many patients and cots are there in the Ward, with their numbers. Identifying witnesses should then be called and the procedure outlined above should be followed. (viii) The attendance of witnesses at the Identification parade is the sole responsibility of the Investigating Officer.” 9. The panchnama should show whether this was done or not and should also show how many patients and cots are there in the Ward, with their numbers. Identifying witnesses should then be called and the procedure outlined above should be followed. (viii) The attendance of witnesses at the Identification parade is the sole responsibility of the Investigating Officer.” 9. Thus, it is clear from rule 181(2)(b)(i) of the Gujarat Police Manual, 1975 that number of persons to be mixed should not be too few or too many and it was advisable to have separate parade for not more than two at a time. In the present case, this rule appears to have been violated while holding the test identification parade as per panchnama at Exh.22 and therefore, the manner in which the test identification was conducted bypassing all the rules does not inspire any confidence. Reliance is placed on a decision of the Hon’ble Supreme Court in the case of Iqbal v. State of U. P. reported in AIR 2015 SC (Supp) 1261 wherein it has been held in part of paragraph No.15 as under: “15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime.” Reliance is also placed on a decision of the Bombay High Court(Nagpur Bench) in the case of Mangal Tularam Warkhade v. State of Maharashtra reported in 2012 Cri. L. J. 510 wherein it has been held in paragraph No.29 as under: “29. In terms of the procedure mentioned in the Criminal Manual for holding identification parades, the following is a very important step and the same is :- "If there is only one accused person to be identified, there should be at least 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; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance, and approximately of the same age, as the person to be identified. Not more than two accused should be placed in any single identification parade; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance, and approximately of the same age, as the person to be identified. It is desirable that innocent persons to be mixed should be different for each such parade." The evidence of P.W.12, the Naib Tahsildar, reveals that all the four accused persons were asked to stand in a line along with only eight dummies and witnesses were called to identify them in single identification parade. For this reason itself, the test identification parade loses its value and cannot inspire confidence. “ Reliance is further placed on the decision of Mohanlal @ Munno Usmanbhai Chauhan (supra) relied on by the learned advocate for the accused wherein it has been held in paragraph No.8 as under: “8. Much has been emphasized upon the identification parade. Mahesh P. Pandya, the Deputy Mamlatdar and Executive Magistrate, held the identification parade. His evidence is recorded at Exh.17. Before we discuss about his evidence, we may refer to the decision of this Court rendered in the case of Motilal Gajarbhai Chasisiya vs. State of Gujarat- 1988 (1) G.L.H. 264 , wherein it is laid down that, while holding the identification parade, care should be taken to procure the dummies of nearly the same age and physique of the accused, so that the accused may not be wrongly identified, and involved with the crime. In this case, we find the identification parade held was perfunctory and an empty formality also. Nothing has been mentioned in the I.P. panchnama (Exh.15) of what height the dummies were. The Deputy Mamlatdar selected the dummies of the age of 20, 32, 43, 36 and 27 years. He did not take care to select the dummies falling within the same age group. The persons having similar physique were also not selected. It seems the Executive Magistrate did not ascertain the description of the respondent so as to select almost similar dummies. Description of the persons selected as the dummies is also not mentioned in the panchnama, but with a view to fill-up the gaps that remained in the panchnama, the Deputy Mamlatdar has made rectifying statement at the time of his evidence.The panchas selected were the managers of the mid-day meal scheme. Description of the persons selected as the dummies is also not mentioned in the panchnama, but with a view to fill-up the gaps that remained in the panchnama, the Deputy Mamlatdar has made rectifying statement at the time of his evidence.The panchas selected were the managers of the mid-day meal scheme. The panch witness (Exh.14) has made it clear that they had to obtain the permit from the Mamlatdar's office for the mid-day meal scheme. Both the panchas were therefore not above the dominating effect of the Executive Magistrate. The panchas will therefore like to be attuned to the requirements of the prosecution and will never be impartial and bold. The dummies from the village of the respondent were not selected. In view of such circumstances it was easy for Bhikhiben to single out the respondent. The identification parade held therefore cannot be termed veracious and credible, and consistent with the law made clear in the above referred decision. The learned Judge has elaborately dealt with the point of the identification parade assigning adequate reasons. We do not find any reason to disagree with him. We, therefore, cannot agree with the submission made on behalf of the appellant in this regard.” 10. It is clear from the above law that test identification parade is not a substantive evidence but is primarily meant for helping the investigating agency to see that the investigation into the offence is proceeding in the right direction. The basic idea of holding a test identification parade is to check upon the veracity of the witnesses who claimed to have seen the culprits at the time of the occurrence and strengthen the trustworthiness of evidence. In the present case, the manner in which the test identification parade has been held creates a serious doubt and loosens the trustworthiness of evidence and, therefore, conviction cannot be based relying upon such improper and dubious test identification parade. 11. Moreover, the description of muddamal, which had been seized, as described in the Muddamal List at exh. 12 reads as under: Sr. No. of muddamal seized Seized from where & whom Particularls of seized articles Qty., size and weight of articles Price of articles 1 2 3 4 5 1. Lakhtar Police Station – From the accused from the Tata Sumo No. GJ9H-1101 (Sic.GJ7H-1101) 1. 12 reads as under: Sr. No. of muddamal seized Seized from where & whom Particularls of seized articles Qty., size and weight of articles Price of articles 1 2 3 4 5 1. Lakhtar Police Station – From the accused from the Tata Sumo No. GJ9H-1101 (Sic.GJ7H-1101) 1. Several sealed covers of different cities and Rs.4,792/-, notes in denomination of Rs.500/-, 9 notes notes, Rs.50/- 5 notes, Rs.10/- 4 notes and Rs.2/-, 1 note. 1-bag Rs.4792/- 2. One bag containing plastic covers consisting several post covers sent to Jafrabad and other cities. 1-bag - 3.Four bags containing tapals and sealed covers sent by angadiya company by Maruti courier 4-bags - 4. Rampuri knife-1, stainless steel knife-1, rusty sword-3, hockey-1 6 30/- 2. Seized from accused Arunkumar Krushnalal Rs.600/-, notes in denomination of, Rs.100/- 2 notes, Rs.50/-, 5 notes, Rs.10/-, 15 notes Rs.600/- Rs.600/- 3. Thakor Bhagaji Joraji Notes in denomination of, Rs.100/-, 10 notes, Rs.10/-, 5 notes, Rs.5/-, 2 notes Rs.1060/- Rs.1060/- 4. Rameshji Nashaji Notes in denomination of, Rs.100/-, 4 notes, Rs.10/-, 2 notes, Rs.2/-, 2 notes, one wrist watch of lobor make having white belt Cash Wrist watch- 1 424/- 5. Bhupatsinh Amarsinh Notes in denomination of, Rs.100/-, 6 notes, Rs.50/-, 1 notes, Rs.10/-, 3 notes and one wrist watch Cash Wrist Watch- 1 680/- 6. Jayantilal Babulal Notes in denomination of, Rs.100/-, 19 notes, Rs.50/-, 3 notes, Rs.10/-, 3 notes, Rs.5/-, 1 note, Rs.2/-, 1 note and Re.1/-, 1 note and one immitation yellow colour chain Cash and 1- chain Rs.2108/- 7. Ishvarbhai Okhabhai Notes in denomination of, Rs.50/-, 1 note, Rs.10/-, 1 note and one old wrist watch of Ricko 345 make Wrist Watch and Cash Rs.120/- 8. Balbhadrasinh Jaydevsinh One silver bracelet One-1 75/- 9. Seized from Lakhtar Police Station Tata Sumo No. GJ7H-1101 One Rs.2,50,000/- Rs.2,59,989/- Thus, if the muddamal list at exh. 12 together with the Charge framed by the learned trial Judge are taken into consideration, the Charge itself appears to be defective for the reason that Charge is framed for the offence punishable under Sections 395 and 397 of the IPC for loot of cash and articles worth Rs.2,59,900/-, whereas, the muddamal list, exh. 12 together with the Charge framed by the learned trial Judge are taken into consideration, the Charge itself appears to be defective for the reason that Charge is framed for the offence punishable under Sections 395 and 397 of the IPC for loot of cash and articles worth Rs.2,59,900/-, whereas, the muddamal list, exh. 12 shows otherwise i.e. in the muddamal list, the value of article shown of Rs.2,59,989/- consists the value of Tata Sumo car that was used in the crime by the accused persons and if the actual amount of articles and cash alleged to have looted by the accused is counted, roughly it comes to Rs.9,900/-, deducting the value of Tata Sumo car. Thus, there appears material defect in the charge framed by the learned trial Judge and on that count also, the prosecution case does not find any favour. 12. Considering entirety of the facts and circumstances of the case and in view of the law laid down in the aforesaid cases, this Court is of the opinion that case against the accused has not been proved by the prosecution beyond reasonable doubt and therefore, the accused is entitled to the benefit of doubt. Thus, all the appeals deserve to be allowed by quashing and setting aside the impugned judgment and order of conviction and sentence. 13. In view of the above, all these appeals are allowed. Impugned judgment and order dated 1.7.2000 passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No.190 of 1998 is quashed and set aside and accused are acquitted of the charges levelled against them by giving them benefit of doubt. The accused are reported to be on bail and hence, their bail bonds shall stand cancelled. However, fine paid by the accused shall not be refunded. Record and proceedings shall be sent back forthwith to the trial court. Registry shall place a copy of this judgment in each appeal.