JUDGMENT : B.M. Trivedi, J. 1. All the four appeals arise out of the judgement and order dated 1.4.2008 passed by the Sessions Court, Rajkot (hereinafter referred to as "the trial Court") in Sessions Case No. 24/2007, whereby all the three accused were convicted under Sections 394, 398,120B of IPC and Section 25(1)(A) and Section 27 of Indian Arms Act (hereinafter referred to as "the Arms Act"). The appellant - accused No. 1, who has filed Criminal Appeal No. 1441 of 2008 was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1,000/- and in default thereof, to undergo rigorous imprisonment for a period of one year for the offence under Section 398 of IPC. The said appellant - accused and appellant - accused No. 2 Jigneshbhai Chhaganbhai Togadia, who has filed Criminal Appeal No. 1330 of 2008 were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- and in default thereof, to undergo rigorous imprisonment for a period of three months for the offence under Section 25(1) (a) read with Section 27 of the Arms Act. The said two appellants and the appellant - accused No. 3 Pankaj Nagji Togadia, who has filed Criminal Appeal No. 1363 of 2008 were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- and in default, to undergo rigorous imprisonment for a period of six months for the offence under Section 394 of IPC. Being aggrieved by the said order of conviction and sentence, all the accused have filed three separate appeals and the State has filed the appeal being Criminal Appeal No. 1719 of 2008 under Section 377 of Cr.P.C., seeking enhancement in the sentence imposed by the trial Court. 2. The case of the prosecution, as unfolded, is that the complainant - Dipakbhai Kanjibhai Vihola was working as Branch Manager in Gujarat Courier Firm at Rajkot, which was owned by one Mafatlal Narrotambhai Patel. The said firm was engaged in the business of courier services of couriering cash, parcels, diamonds, ornaments, etc., from one city to another. 2. The case of the prosecution, as unfolded, is that the complainant - Dipakbhai Kanjibhai Vihola was working as Branch Manager in Gujarat Courier Firm at Rajkot, which was owned by one Mafatlal Narrotambhai Patel. The said firm was engaged in the business of courier services of couriering cash, parcels, diamonds, ornaments, etc., from one city to another. On 16.12.2006, the said Dipakbhai Kanjibhai Vihola was carrying, in a suitcase, parcels of diamonds and was going on his motorcycle bearing Registration No. GJ-3-BF-2260 along with one Prahladbhai Chhaganbhai Patel for the delivery of the said parcel. When they reached near Balaji Chowk, Shivangi Guest House, three persons riding on one motorcycle came from the backside. Out of the said three persons, two pillion riders tried to throw chilli-powder in the eyes of the said Dipakbhai Kanjibhai Vihola and Prahladbhai Chhaganbhai Patel. As a result thereof, both of them fell down. One person, out of the three persons, tried to snatch the suitcase. However, the said Dipakbhai Kanjibhai Vihola caught hold of his leg and shouted for help. At that time, the person, whose leg was caught hold of by Dipakbhai Kanjibhai Vihola took out a gun (tamancha) and threatened Dipakbhai Kanjibhai Vihola. He, therefore, released his leg. The said person thereafter ran away towards Lakhaji Road and the other two persons fled away on their motorcycle. The said person, who ran away towards Lakhaji Road was caught by the public as well as by the police who were there in civil dress near A-Division Police Station. On being asked, he had told his name to be Rajendrasing Murlising Pal and also disclosed the names of his two companions, who had fled away, as Pankaj and Jignesh. The said Dipakbhai Kanjibhai Vihola thereafter had lodged the complaint before the PSI, A-Division Police Station, Rajkot, which was registered as C.R-I-291/2006 for the offence under Sections 394, 397, 120B and 511 of IPC as well as under Section 25(1)(A) read with Section 27 of the Arms Act. The Investigating Officer, after collecting sufficient evidence against all the three accused, laid charge-sheet in the Court of Judicial Magistrate First Class, Rajkot, who committed the case to the trial Court for trial, which was registered as Sessions Case No. 24/2007. The trial Court had framed charge against all the three accused and proceeded with the trial. The Investigating Officer, after collecting sufficient evidence against all the three accused, laid charge-sheet in the Court of Judicial Magistrate First Class, Rajkot, who committed the case to the trial Court for trial, which was registered as Sessions Case No. 24/2007. The trial Court had framed charge against all the three accused and proceeded with the trial. After the evidence of prosecution was over, the further statements of the accused were recorded under Section 313 of Cr.P.C., in which the accused No. 1 Rajendrasing Murlising Pal had denied the allegations made against him and further stated that he was working in the factory till 7.45 p.m., on 16.12.2006 and on that day, he had gone to the temple of Balaji, the day being Saturday and when he was coming out of the said temple, there were many persons around him and because his leg was limping, the police people had caught him and taken to the police station. He had further stated that within 5-10 minutes, the police had also brought other persons to the police station. The other two accused had simply denied the allegations made against them, in their further statements recorded under Section 313 of Cr.P.C. The trial Court after appreciating the evidence had recorded the conviction and sentenced all the three accused as stated herein above. 3. The prosecution to prove the charges levelled against the accused had examined 23 witnesses, out of which PW-1 was Dr. Pareshbhai Gamar, who was the Medical Officer in Pandit Dindayal Upadhyay Hospital, Rajkot. According to him, on 17.12.2006 at about 1.34 a.m., the complainant Dipakbhai Kanjibhai Vihola and Prahladbhai Chhaganbhai Patel were brought to him by the PSI of A-Division Police Station. He had examined both of them as they had complained of burning in the eyes. After the examination, he had given the certificates, which are on record at Exh. 12 to 15. PW-2 was the complainant Dipakbhai Kanjibhai Vihola. He had narrated the incident in question by stating, inter alia, that he and Prahladbhai Chhaganbhai Patel had left their office with 6 to 7 parcels in one suitcase at about 10.15 p.m., on the motorcycle, which was driven by him and Prahladbhai Chhaganbhai Patel was sitting as pillion-rider. When they reached near Shivangi Guest House, three persons came on motorcycle from the backside and sprinkled chilli-powder on him and Prahladbhai Chhaganbhai Patel. When they reached near Shivangi Guest House, three persons came on motorcycle from the backside and sprinkled chilli-powder on him and Prahladbhai Chhaganbhai Patel. Both of them, therefore, fell down on the road, however, he told Prahladbhai Chhaganbhai Patel to catch hold of the suitcase. He had further stated that out of the three persons, he had scuffle with one person, whose leg was caught hold of by him and, therefore, that person had shown him the tamancha (country-made revolver). He, therefore, had released his leg. The said person thereafter had run away towards Lakhaji Road and he was being chased by the complainant and other persons. He had stated that the other two persons had fled away on the motorcycle. He had further stated that the person being chased was caught near Dhebar Chowk and was brought to the A-Division Police Station. On being asked, he had told his name to be Rajendrasing Murlisng Pal and the names of the other two persons as Jignesh and Pankaj. He had admitted the contents of the complaint lodged by him. The said complaint was taken on record as Exh. 20. He had further stated that on 20.12.2006, he was called by the officer Avcharbhai for identification parade and he had identified the other two persons, who were named as Jignesh and Pankaj. The said complainant had also identified all the three accused sitting in the Court and also identified the muddamal article shown to him in the Court. In the cross-examination, he had admitted that it was dark when the incident had taken place, however, he had denied that he had not seen the accused because of the darkness and because chilli-powder was thrown in his eyes. He had also admitted that the person, whose leg was caught by him, had shown him the revolver for releasing his leg. He had admitted that the incident had taken place at about 10.30 p.m., and it had taken 30 to 40 minutes for lodging the complaint. He had also admitted that after the arrest of Rajendrasing, the police had also brought some other persons to the police station. He had admitted that he was told by the police personnel that the complaint was ready and, therefore, he had put his signature. He had also admitted that on 18.12.2006, the police had called him by saying that they had arrested the two other accused. He had admitted that he was told by the police personnel that the complaint was ready and, therefore, he had put his signature. He had also admitted that on 18.12.2006, the police had called him by saying that they had arrested the two other accused. He had also admitted that on 20.12.2006, the police had called him for coming to the office of the Mamlatdar and at that time, the other two persons were also there in the Jeep. 4. PW-3 Prahladbhai Changanbhai Patel was examined by the prosecution at Exh. 21. He had also narrated the incident in question in corroboration with the version of the complainant Dipakbhai. As regards the T.I. Parade, he had stated that he and Dipakbhai were called for identification of the accused at the office of the Mamlatdar and they had identified two persons in the said parade, whose names were Jignesh and Pankaj. In the cross-examination, he had denied that the police had falsely implicated the accused Rajendrasing Murlising Pal, who was caught from the crowd on the date of incident. He had denied that the other two accused were with him in the Jeep while going to the Collector's office for T.I. Parade. 5. The Executive Magistrate, examined as PW-4, had stated that on receiving the yadi from A-Division Police Station, he had arranged for the T.I. Parade on 20.12.2006 for identification of the two persons and called the complainant Dipakbhai Kanjibhai Vihola and the witness Prahladbhai Chhaganbhai Patel. According to him, he had taken all care to see that the police and other persons interested were not present. He had reiterated the contents of the panchnama at Exh. 25 and stated that the complainant Dipakbhai Kanjibhai Vihola and the witness Prahladbhai Chhaganbhai Patel had identified the accused Jignesh and Pankaj, who were standing in the queue of ten persons. In the cross-examination, he had denied that he had not followed the procedure as narrated in the panchnama and that no accused was identified in his presence in any T.I. Parade. 6. PW-5 Suresh J. Patel was the panch witness, who had identified the muddamal and admitted the contents of the panchnama (Exh. 33). PW-6, Chandrakant Tribhovandas was also panch witness of the panchnama of the scene of offence at Exh. 35. PW-7 Alpeshbhai Kanjibhai was also panch witness in whose presence the accused Rajendrasing was arrested at A-Division Police Station. 6. PW-5 Suresh J. Patel was the panch witness, who had identified the muddamal and admitted the contents of the panchnama (Exh. 33). PW-6, Chandrakant Tribhovandas was also panch witness of the panchnama of the scene of offence at Exh. 35. PW-7 Alpeshbhai Kanjibhai was also panch witness in whose presence the accused Rajendrasing was arrested at A-Division Police Station. He had admitted the contents of the panchnama (Exh. 38). Of course, he happened to be the brother of the complainant Dipakbhai Kanjibhai Vihola. PW-9 Mukeshbhai Madhabhai Dodiya and PW-10 Bipinbhai, who were panch witnesses to the panchnama (Exh. 45), drawn in respect of the watch kept for the arrest of the accused No. 2 and 3, had turned hostile and not supported the case of the prosecution. PW-12 Mayudinbhai Iqbalbhai and PW-13 Mehboobbhai Karimbhai, who were the panch witnesses in respect of panchnama (Exh. 49), though had identified their respective signatures on the said panchnama, had denied that Hero Honda Splender Motorcycle was seized in their presence. Similarly, the panch witness Rupeshbhai Girishbhai (PW-14) of the panchnama (Ex. 52) had also not supported the case of the prosecution or the contents of the panchnama, except admitting his signatures on the said panchnama. 7. PW-8 was the Head Constable Chamansha Jumasha, who had stated, inter alia, that on 16.12.2006 at about 10.30 p.m., when he along with other police constables were standing outside the A-Division Police Station, they had seen one person running from Lakhaji Raj Statue with one weapon and he was being chased by the public. According to him, when the said person came near the traffic point at Dhebar Road, he had caught the said person and constable Samirbhai had given him one slap. Thereafter, the said person was taken to the Police Station and handed over to the PSI Mr. Bharolia. He had stated that thereafter the complainant Dipakbhai Kanjibhai Vihola had given the complaint to the PSI Bharolia. In the cross-examination he had denied that he had not caught the accused as stated by him. The Constable Samirbhai was examined as PW-11 and he had corroborated the version of PW-8 Chamansha. Similarly, PW-16 Constable Jayeshbhai Nagdani had also supported the version of Constable Chamansha and Samirbhai. 8. The PW-15 was the painter Rupeshbhai Ishwarbhai, at whose place the accused had allegedly got painted the forged number plate, however, he was also declared hostile. The Constable Samirbhai was examined as PW-11 and he had corroborated the version of PW-8 Chamansha. Similarly, PW-16 Constable Jayeshbhai Nagdani had also supported the version of Constable Chamansha and Samirbhai. 8. The PW-15 was the painter Rupeshbhai Ishwarbhai, at whose place the accused had allegedly got painted the forged number plate, however, he was also declared hostile. PW-17 was Dipak Bhanjibhai, who was working as Manager in the Diamond Polishing Factory of Bharatbhai Dhabi. He had stated that the accused Rajendrasing was working in his factory and on 16.12.2006 he had worked in the factory till 8 p.m. In the cross-examination, he had admitted that one leg of the said accused Rajendrasing was limping. The PW-18 was Dharmeshbhai Jayantilalbhai Hadiya and PW-19 Mr. Mitenbhai Arvindbhai, who had alledgedly seen the incident had turned hostile. Of course, PW-19 had stated that he had seen that one person was running with tamancha towards police chowky. 9. The PW-20 was PSI Kishorebhai Kuljibhai Bharolia, who had recorded the complaint of the complainant Dipakbhai Kanjibhai. He had stated that at about 22.45 hours, one Head Constable Chamansha of A-Division Police Station had brought one person named Rajendrasing Murlising, who had a country-made revolver with him and tried to snatch one suitcase containing diamonds from the complainant and one Prahladbhai. He had arrested the said accused and seized the muddamal weapon, the cartridges and one packet of chilli-powder and also the identity card from the accused Rajendrasing as per the arrest panchnama. He had identified that the accused - Rajendrasing sitting in the Court and also identified his signature on the complaint (Exh. 30) and other documents at Exh. 33, Exh. 35, Exh. 40 and arrest memo Exh. 62. In the cross-examination he had denied that he had falsely implicated the accused Rajendrasing by recording false complaint of the complainant Dipakbhai. 10. PW-21 Narendragiri Dayalgiri Goswami, Head Constable of DCB Police Station had stated that on 17.12.2006 he had gone with PSI R.B. Odhedra in respect of one investigation of the case bearing C.R. No. 291/2006 of A-Division Police Station and recorded the statement of one Nanjibhai Vagjibhai Patel, who was the father of the accused Pankajbai. PW-22 was the shopkeeper Babubhai Nathubhai from whose shop the accused had allegedly purchased the chilli-powder, however, he was declared hostile. 11. PW-22 was the shopkeeper Babubhai Nathubhai from whose shop the accused had allegedly purchased the chilli-powder, however, he was declared hostile. 11. Lastly, PW-23 Police Inspection Rambhai Bhurabhai Odhedra of DCB Police Station was examined, who had carried out the investigation in respect of allegations against the accused Jignesh Chhaganbhai Togadia and Pankaj Nagjibhai Togadia. According to him, on receiving secret information on 18.12.2006, he along with the other police personnel had kept a watch on the two persons, who were to go on motor cycle bearing Registration No. GJ-3-AM-7696. When they came, they were intercepted. On inquiry they had stated their names to be Jignesh Chhaganbhai Togadia and Pankaj Nagjibhai Togadia. Both of them were arrested as per the panchnama (Exh. 45). According to him, he had also taken them to the office of the Executive Magistrate, Rajkot on 21.12.2006 for Test Identification Parade and after collecting sufficient evidence against both of them, he had laid the charge-sheet against the said accused in the Court. He had identified the said two accused sitting in the Court and also the muddamal article shown to him in the Court. In the cross-examination he had denied that he wrongly implicated the said two accused without any evidence. He was also cross-examined at length on the identification of the two accused, Jignesh and Pankaj, however, he had adhered to his version in the examination-in-chief. 12. Now, if the entire evidence adduced by the prosecution is recapitulated, it appears that the PW-2 complainant Dipakbhai had not only narrated the entire incident involving all the accused, but had also identified them in the Court at the time of trial. He had duly proved the contents of the complaint (Exh. 20). The said version of the complainant was also duly corroborated by the version of PW-3 Prahladbhai, who was accompanying the complainant at the time of incident in question when they were going on the motorbike. PW-3 had also duly identified all the three accused sitting in the Court and also the muddamal article shown to him in the Court. PW-1 Dr. Pareshbhai, who was the doctor at the Pandit Deendayal Hospital, Rajkot, and had treated the said complainant and the said Prahladbhai after the incident in question at about 1.34 a.m., on 17.12.2006, had recorded the history that some person had thrown chilli-powder in the eyes of the said Dipakbhai and Prahladbhai. PW-1 Dr. Pareshbhai, who was the doctor at the Pandit Deendayal Hospital, Rajkot, and had treated the said complainant and the said Prahladbhai after the incident in question at about 1.34 a.m., on 17.12.2006, had recorded the history that some person had thrown chilli-powder in the eyes of the said Dipakbhai and Prahladbhai. The PW-8 Chamansha Jumasha, who was the Head Constable, A-Division Police Station had stated that the accused No. 1 Rajendrasing was caught by constable Samirbhai when he was running with country-made revolver and was being chased by the public. The PW-11 constable Samirbhai Sheikh had also stated that he had caught the accused No. 1 Rajendrasing when he was being chased by the public after the incident in question. Of course, the PW-18 Dharmesh Kadiya, the independent eye-witness had turned hostile and PW-19 Mitenbhai Arvindbhai had partly supported the case of the prosecution by saying that he had seen one person running with country-made revolver towards the Police Chowky. However, on the overwhelming evidence of the PW-2 - complainant, PW-3 Prahladbhai and the police constable Chamansha and Samirbhai it was duly established by the prosecution that it was the accused No. 1 Rajendrasing, who had attempted to commit robbery, when the complainant and Prahladbhai were going on their motorbike and tried to snatch the suitcase, which was in possession of the said Prahladbhai and that the said accused Rajendrasing was caught by the Police Constable Samirbhai and other police constables, who were present outside the A-Division Police Station. It is also pertinent to note that after he was caught, a search was made of his person in presence of two panch witnesses, out of whom, panch witness Alpeshbhai was examined as PW-7 and in his presence panchnama (Exh. 40) was drawn. The said panch witness had also fully supported the contents of the panchnama (Exh. 40), from which it appears that one packet containing chilli-powder, one country-made revolver and one identity card was found, from the accused Rajendrasing. 13. In view of the said evidence, the Court has no hesitation in holding that the accused Rajendrasing had tried to snatch the suitcase from Prahladbhai when he was going on the motorbike with the complainant Dipakbhai, by throwing chilli-power on them, and had shown the country-made revolver to them, when the complainant Dipakbhai had caught hold of his leg. 13. In view of the said evidence, the Court has no hesitation in holding that the accused Rajendrasing had tried to snatch the suitcase from Prahladbhai when he was going on the motorbike with the complainant Dipakbhai, by throwing chilli-power on them, and had shown the country-made revolver to them, when the complainant Dipakbhai had caught hold of his leg. He was the same person, who had tried to run away with the revolver, and who was being chased by the public, and was caught near the A-Division Police Station, by the Police Personnel, who were standing outside the said police station. The trial Court after appreciating the evidence in right perspective has rightly held him guilty of the alleged offences. 14. So far as the other two accused Pankajbhai and Jigneshbhai are concerned, it appears that their names were revealed by the said accused Rajendrasing after he was caught and arrested at the A-Division Police Station. As rightly submitted by the learned Counsel Mr. Bharda for the said accused, relying upon the decision of the Supreme Court of India in the case of Haricharan Kurmi v. State of Bihar, reported AIR 1964 SC 1184 , the confession of the co-accused person cannot be treated as substantive evidence, and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In the instant case, it appears that the prosecution had failed to prove the charges levelled against the said two accused by leading cogent evidence, apart from the statement made by the co-accused Rajendrasing involving the said two accused. 15. As discussed herein above, the said two accused were arrested by the P.S.I., Mr. Bharolia on 18.12.2006, when on the secret information received by him, he had kept a watch along with the panch witnesses. However, the panch witnesses PW-9 and PW-10 in respect of the panchnama (Exh. 45) with regard to the said watch and arrest of the said two accused have turned hostile and had not supported the case of the prosecution. It further appears that the said Investigating Officer thereafter had arranged for the T.I. Parade at the office of the Executive Magistrate, who has been examined as PW-4. 45) with regard to the said watch and arrest of the said two accused have turned hostile and had not supported the case of the prosecution. It further appears that the said Investigating Officer thereafter had arranged for the T.I. Parade at the office of the Executive Magistrate, who has been examined as PW-4. As per the case of the prosecution, during the said T.I. Parade held on 21.12.2006, the complainant Dipakbhai and PW-3 Prahladbhai had identified both the accused. However, if their evidence with regard to the said T.I. Parade is considered, PW-2 complainant had admitted that at the time of incident in question, it was dark near Shivangi Guest House and the person could not be clearly seen in such darkness. He had also admitted that on 18.12.2006, he was called by the police at the police station to identify two persons, and he had identified the said two accused. PW-3 Prahladbhai had also in his cross-examination admitted that after 3-4 days of the incident, the police had brought two persons and he was also called and that all of them had gone to the office of the Collector, of course, he had denied that the two accused were sitting in the same jeep, in which he was sitting. In view of the said evidence of the PW-2 and PW-3, it appears that both of them were shown the accused No. 2 and 3 before the T.I. Parade was held at the office of the Executive Magistrate. Under the circumstances, the whole evidence of identifying the accused No. 2 and 3 at the instance of the PW-2 and 3 is not free from suspicion. There cannot be any disagreement with the proposition laid down by the Supreme Court of India in the case of Heera v. State of Rajasthan, reported in (2007) 10 SCC 175 , in which the evidential value of T.I. Parade has been discussed. However, as held in the said judgement, the evidence of T.I. Parade would not constitute any substantive evidence and the prosecution is required to prove that all requisite formalities with regard to the T.I. Parade were adopted and followed. 16. However, as held in the said judgement, the evidence of T.I. Parade would not constitute any substantive evidence and the prosecution is required to prove that all requisite formalities with regard to the T.I. Parade were adopted and followed. 16. In the instant case, the arrest of the accused No. 2 and 3 and their identification in the T.I. Parade at the instance of the PW-2 and 3 being not free from suspicion, and there being no independent evidence adduced by the prosecution to prove that the accused No. 2 and 3 were the same persons, who had accompanied the accused No. 1 on the motorcycle at the time when the alleged incident had taken place on 16.12.2006, it could not be said that the prosecution had proved the charges levelled against the accused No. 2 and 3 beyond reasonable doubt. The Court, therefore, is of the opinion that the prosecution had failed to drive home the charges levelled against the accused No. 2 and 3 beyond reasonable doubt, and they are required to be acquitted by giving them benefit of doubt. 17. In that view of the matter, the judgement and order of conviction and sentence passed in Sessions Case No. 24/2007 by the trial Court against the appellant - accused No. 1 Rajendrasing Murlising Pal is confirmed. The Criminal Appeal No. 1441 of 2008 is dismissed. The impugned judgement and order of conviction and sentence qua appellants - accused No. 2 Jigneshbhai Chhaganbhai Togadia and accused No. 3 Pankajbhai Nagjibhai Togadia are set aside. Both the appellants - accused No. 2 Jigneshbhai Chhaganbhai Togadia and accused No. 3 Pankajbhai Nagjibhai Togadia are acquitted from the charges levelled against them by giving them benefit of doubt. Their bail bonds stand cancelled. The appeals being Criminal Appeal Nos. 1330 of 2008 and 1363 of 2008 filed by the said appellants - accused Nos. 2 and 3 stand allowed. The Appeal being Criminal Appeal No. 1719 of 2008 filed by the State is dismissed. 18. As per the jail report, the accused No. 1 Rajendrasing Murlising Pal has not returned to jail after the period of his temporary bail was over. Hence, non-bailable warrant is directed to be issued against the said accused. R & P be sent back to the concerned trial Court. Copy of the order be placed in the other appeals.