JUDGMENT : D.P. CHOUDHURY, J. 1. The appellants in the captioned appeal challenges the order of conviction and sentence passed by the learned Addl. Sessions Judge, F.T.C.-II, Balasore for the offence under section 395 of I.P.C. read with section 397 of I.P.C. read with section 14 of the Foreigners’ Act in S.T. Case No. 106/245 of 2009/2007. FACTS 2. The factual matrix leading to the case of the prosecution is that on 21.5.2007 while the informant Raj Kishore Mohapatra was proceeding with his sister to the railway station, near Jyoti Hospital they found that wooden logs have been lying on the road to obstruct their way to go. When the driver of the car stopped the vehicle, the present appellants along with co-accused persons came near the car and assaulted the informant, his family members and removed cash, gold ornaments and three mobile telephones. Likewise they stopped an ambulance vehicle and also removed the valuables from the inmates of the ambulance vehicle. Then two motorcyclists came. The appellants and others stopped them and also forcibly removed cash and gold ornaments from their possession. A passenger bus came. The appellants and others came there, but the driver of bus speeded up vehicle and fled away. Thereafter the appellants and co-accused decamped the spot. Due to assault the informant and other inmates sustained injuries on their person. Thereafter the informant lodged the F.I.R. During course of investigation the police visited the spot and examined the witnesses. In further investigation police conducted T.I. parade of the appellants and co-accused persons. The police also seized the stolen materials from the appellants and others. On police requisition the informant and other injured persons were examined by the doctors. Since prima facie case is made out, charge sheet was filed after completion of investigation. 3. The plea of the appellants as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he plead innocence. 4. The prosecution in order to prove the charge examined 18 witnesses whereas the defence examined none. The trial court after analyzing the evidence of prosecution witnesses has come to the conclusion that the appellants and co-accused persons have committed the aforesaid offences and as such convicted them thereunder. 4. The prosecution in order to prove the charge examined 18 witnesses whereas the defence examined none. The trial court after analyzing the evidence of prosecution witnesses has come to the conclusion that the appellants and co-accused persons have committed the aforesaid offences and as such convicted them thereunder. After hearing on the question of sentence, learned trial court sentenced the appellants to undergo R.I. for 14 years and to pay fine of Rs.2,000/-each and in default to undergo further R.I. for one year for the offence under section 395 of I.P.C. read with section 397 of I.P.C. and further sentenced to undergo further R.I. for five years and to pay fine of Rs.1,000/-each and in default to undergo R.I. for six months for the offence under section 14 of Foreigners’ Act. Both the sentences are directed to run concurrently. SUBMISSIONS: 5. Learned counsel for the appellants submitted that P.Ws. 2, 13 and 16 identified the appellants during T.I. parade, but their evidence is clear to show that the appellants have been shown at the Police Station to the witnesses before the T.I. parade was held. So, their evidence has no evidentiary value to base conviction against the appellants. According to him, the P.Ws. have stated that the appellants were covered with black clothes leaving the eyes to be kept open, for which the T.I. parade held identifying the appellants should be held unreliable. 6. Learned counsel for the appellants further submitted that after seizure of the stolen properties the stolen properties were not got identified by the owners to prove the same to be the stolen properties. Similarly, the injuries found on the person of the inmates do not tally to the place of injuries as stated by the injured persons. Besides, learned counsel for the appellants submitted that since 1.6.2007 the appellants are inside custody, alternatively lenient view may be taken to reduce sentence already undergone. 7. Learned Additional Government Advocate submitted that the learned trial court has examined the materials on record meticulously and rightly convicted the appellants under relevant provision of law. He submitted that the evidence of the doctor clearly shows that the inmates of the vehicles have sustained injuries on their persons due to assault by the appellants and co-accused. 7. Learned Additional Government Advocate submitted that the learned trial court has examined the materials on record meticulously and rightly convicted the appellants under relevant provision of law. He submitted that the evidence of the doctor clearly shows that the inmates of the vehicles have sustained injuries on their persons due to assault by the appellants and co-accused. According to him, the trial court has well discussed the evidence and rounded up the links to the circumstances duly proved and found the chain of circumstance against the appellants have been completed to prove their complicity with the commission of offence. He supported the judgment of conviction and sentence passed against the appellant and prayed to dismiss the appeal. DISCUSSION: 8. Before going to the facts of the case the law in the matter should be discussed. It is trite in law that the appellate court has got duty to re-appreciate the evidence of the P.Ws. to come to a conclusion whether the view of the trial court is correct and legal. It is also well settled in law that the court should separate grain from the chaff and the evidence should be weighed, but not to be counted. 9. It is revealed from the evidence of P.W.1 that while he and his family members were coming from Nilgiri in an Ambassador car to Jyoti Hospital, they found that the road was blocked. According to him six to seven persons came and assaulted them by means of Katari. Thereafter they removed the mobile phone and due to assault they sustained injuries on their persons. There is no proper cross-examination in this regard. From the evidence of P.W.1 it is clear that in the occurrence night there was a dacoity committed. P.W.2 who is the driver of the car corroborated the evidence of P.W.1 stated that six persons assaulted them by means of Bhujali causing injuries on their persons and then removed all the valuables from them. He has lodged the F.I.R. vide Ext.1. Thus, in cross-examination there is nothing revealed to overturn his evidence. The evidence of P.Ws.3 and 4 also corroborate the evidence of P.W.1 as to commission of dacoity. P.W.5 was also coming in Ambulance bearing No.OR-01-3516. His evidence is also relevant about the dacoity committed by six to seven persons in their vehicle while they came to same spot. Thus, in cross-examination there is nothing revealed to overturn his evidence. The evidence of P.Ws.3 and 4 also corroborate the evidence of P.W.1 as to commission of dacoity. P.W.5 was also coming in Ambulance bearing No.OR-01-3516. His evidence is also relevant about the dacoity committed by six to seven persons in their vehicle while they came to same spot. He testified about removal of cash, gold ornaments by these culprits. Denying suggestion of defence he stated to have stated such fact before the police. Similar is the statement of P.W.6, who was also an inmate of the ambulance corroborates the evidence of P.W.5 about removal of valuables after assaulting the inmates by the culprits. P.W.10 who is also the inmate of the car corroborating the statement of P.Ws.1 to 3 stated that when the vehicle in which she was travelling was rubbed by six to seven unknown persons. P.W.14 who is also an inmate of the Ambassador car corroborates the evidence of P.Ws.1 to 3 about removal of the valuables from them by six to seven culprits after assaulting them. On the other hand she has corroborated the evidence of P.Ws.1 to 3. P.W.12 who was also coming on a bike corroborating the evidence of P.Ws. 1 to 6 stated that they also stopped near the spot due to obstruction of road. According to him, when he stopped, some docaoits came and assaulted him and out of fear he and his friend gave cash, mobile hand set and other valuables. P.W.13 who was accompanying P.W.12 also corroborating the evidence of P.W.12 stated about the dacoity committed by six to seven persons. 10. From the aforesaid analysis it appears that on the occurrence night six to seven culprits committed dacoity on the National highway by removing valuables from the above witnesses after causing hurt to them. 11. Now the question arises as to who were the culprits. The prosecution has tried to prove through circumstantial evidence about involvement of the present appellants and other co-accused persons. The prosecution has more relied on the T.I. parade to base conviction against the appellants. So far as T.I. parade is concerned the law on the subject is no more res integra. It is reported in 1970(2) S.C.C. 128 ; Budhsen and another v. State of U.P., where Their Lordships observed at paragraph-7 as follows:- “7. The prosecution has more relied on the T.I. parade to base conviction against the appellants. So far as T.I. parade is concerned the law on the subject is no more res integra. It is reported in 1970(2) S.C.C. 128 ; Budhsen and another v. State of U.P., where Their Lordships observed at paragraph-7 as follows:- “7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Cr. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Cr. P.C. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations : (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. The persons required to identify an accused should have bad no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court……” 12. With due respect to the aforesaid decision it is clear that the evidentiary value of the T.I. parade is undoubtedly great. Before accepting such evidence Court is to assess if procedure holding T.I. parade has been followed by Magistrate properly or not so as to ensure fair trial. 13. With due respect to the aforesaid decision it is clear that the evidentiary value of the T.I. parade is undoubtedly great. Before accepting such evidence Court is to assess if procedure holding T.I. parade has been followed by Magistrate properly or not so as to ensure fair trial. 13. It is revealed from the evidence of P.W.8 that he has conducted T.I. parade inside the jail. According to him, he called the identifying witnesses one after another to identify the suspects. Also it appears that the suspects were mixed with similar dressed and similar age group of ten persons. He testified that witness Satya Prakash Pati correctly identified Pausa Khan, Asadul Mulla, Arif Khan and Sk. Jahir. Witness Sanjaya Kumar Mohanty identified appellant Sk. Jahir. Witness Baji Soud did correctly identified suspects Pausa Khan and Abdul Basar Mulla. Similarly witness Raj Kishore Mohapatra correctly identified Arif Khan and Pausa Khan. The witnesses have stated before him that they have seen these appellants while being assaulted by them and some of the suspects were unmasked. He proved T.I. parade report vide Ext.3/1. In paragraph-9 he admitted that the identifying witnesses have not stated about mode of assault by the suspects, but the suspects after being identified objected before him about the manner of holding T.I. parade. It appears from the evidence of P.W.8 that after following proper procedure he has conducted the T.I. parade vide EXt.3/1 and there is nothing to disbelieve his testimony. 14. P.W.2 admitted that he has identified appellants Arif Khan and Pausa Khan corroborating the evidence of P.W.8. Of course he admitted not to have stated before the Magistrate the reason of assault as he was not asked. Such discrepancy is minor one, but the fact remains that he has identified those two appellants during T.I. parade. Not only this, but also it is revealed from his evidence that due to assault he has sustained injuries on his person. 15. P.W.13 stated that he has participated in the T.I. parade and identified appellants Arif Khan, Sk. Jahir, Pausa Khan and Abdul Basar. There is nothing to disbelieve his evidence. 16. Similarly, P.W.16 also revealed that he has participated in the T.I. parade and identified correctly appellant Sk. Jahir. There is nothing in the cross-examination to shake his evidence in this regard. 17. Jahir, Pausa Khan and Abdul Basar. There is nothing to disbelieve his evidence. 16. Similarly, P.W.16 also revealed that he has participated in the T.I. parade and identified correctly appellant Sk. Jahir. There is nothing in the cross-examination to shake his evidence in this regard. 17. It also appears from the evidence of P.Ws.2, 13 and 16 that the appellants assaulted them and removed the materials. Although he was cross-examined in detail, but so far their identification during T.I. parade under the circumstances corroborating the evidence of P.W.8 cannot be brushed aside. Hence the T.I. parade being vital evidence and same being proved against the appellants is a major circumstance to prove their involvement. 18. On perusal of the evidence of P.Ws. 2, 3, 4, 5, 6, 10, 12, 13, 14 and 15 it transpires that they have also identified the appellants in court. It may not be out of place to mention that according to the case of the prosecution, dacoity was committed on one spot and at the same time with the inmates of the car, Ambulance van and motorcyclist. Moreover, their evidence is clear to show that on the head light of these vehicles they could see the face of the appellants. As stated earlier, P.Ws.2, 3 and 16 had already identified the appellants during T.I. parade. The question of identification in T.I. parade during investigation is relevant under section 9 of the Evidence Act. The confirmation of the previous T.I. parade during trial is a strong circumstance against the appellants. With regard to the identification of the appellants in court, there is already decision of the Hon’ble Apex Court reported in (2003) 5 SCC 746 ; Malkhansingh and others v. State of M.P., where Their Lordships observed hereunder:- “7. It i s trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad vs. Delhi Administration : AIR 1958 SC 350 ; Vaikuntam Chandrappa and others vs. State of Andhra Pradesh: AIR 1960 SC 1340 ; Budhsen and another vs. State of U.P. : AIR 1970 SC 1321 and Rameshwar Singh vs. State of Jammu and Kashmir : (1971) 2 SCC 715 ).” 19. With due regard to the aforesaid decision of the Hon’ble Apex Court, the identification in the court at the first instance may be a weak piece of evidence in nature, but due to the fact that three prosecution witnesses already identified them during T.I. parade held inside the jail and fact that there was already head light of the vehicles were on, the identification of the appellants by the said prosecution witnesses cannot be thrown out from the zone of consideration and the same becomes a relevant circumstance against the appellants. 20. 20. The evidence of P.Ws.2,3,4 and 5 disclose that the appellants were assaulting them and it is revealed from their evidence that they sustained injuries on different parts of their bodies. P.W.7, who is the doctor also issued injury reports vide EXts.7, 8, 9, 10, 2/1 and 11. Thus, it is revealed that these appellants voluntarily caused hurt to the inmates of the car, Ambulance van and the motorcyclists . 21. A further perusal of the evidence, it appears that these appellants removed the mobile phone of P.W.1, cash and mobile hand set from P.W.2, Nokia mobile set and cash of Rs.1200/-from P.W.3, money from P.W.5, money from P.W.6, cash and gold chain, Palla, I. Pod from P.W.10, cash from P.W.12, cash of Rs.5100/-, A.T.M. and PAN card, Driving License, L.G. model mobile phone from P.W.13, I. Pod from P.W.14, cash of Rs.200/-with purse from P.W.15 and cash, mobile hand set from his brother. There were cross-examination to these witnesses, but nothing has been elicited from their evidence to shake their testimony. 22. It is revealed from the evidence of P.W.18, that one Nokia model hand set was seized from appellant Abdul Basar Mulla, one Samsung mobile hand set was seized from accused Asadul Mulla, one I. Pod from appellant Sk. Jahir, one gold chain from accused Arif Khan, one piece of gold Palla was seized from appellant Pausa Khan and a gold Pall was seized from appellant Arif Khan. The seizure also has been witnessed by P.Ws.10 and 17. Learned trial court also vividly discussed about recovery of the stolen properties from the possession of the appellants. Thus, there is consistent evidence to prove that the stolen properties were recovered from the possession of these appellants. So, it is another circumstance against the appellants. 23. In view of the discussions made hereinabove, it appears that not only direct evidence is available against the appellants, but also there are circumstantial evidence as noted above to chain them to find out the complicity of the appellants with commission of the offence. Learned trial court has vividly discussed about these evidence. As such, the appreciation of evidence by the learned trial court is fully endorsed so as to prove the evidence under section 395 of I.P.C. read with section 397 of I.P.C. 24. Learned trial court has vividly discussed about these evidence. As such, the appreciation of evidence by the learned trial court is fully endorsed so as to prove the evidence under section 395 of I.P.C. read with section 397 of I.P.C. 24. So far as section 14 of the Foreigner’s Act is concerned, no charge sheet was submitted against the present appellants, but only charge has been framed against the present appellants for committing such offence. The evidence of P.W.18 who is the I.O. in this case could not show what action has been taken to array appellants as a Bangaladeshi National. It is only available from his evidence that after arresting the accused he has intimated the fact of his Nationality to Indian Embassy through the Superintendent of Police, Balasore, but no such letter was produced by him. Apart from this, P.W.17 in cross-examination admitted that only appellants confessed that they belong to village Amridi, P.S. Bhanga, Dist. Faridpur, Bangaladesh. But at paragraph-15 of the cross-examination he admitted that he has not submitted charge sheet against the present appellants under Foreigner’s Act. Since the confession before the police is not admissible and no material is available to show that as foreigner they have entered the Indian Territory, rightly he has not submitted charge sheet against the appellants under Foreigner’s Act. On the other hand the judgment of the learned trial court is silent as to the material available which prompted the trial court to convict them under section 14 of the Foreigner’s Act. Hence, the question of convicting the appellants under section 14 of the Foreigner’s Act is not proved by the prosecution beyond all reasonable doubt. The conviction and sentence against the present appellants under section 14 of the Foreigner’s Act is also not proved. 25. In view of the aforesaid analysis, this Court is of the view that the conviction and sentence passed by the learned trial court against the appellants for the offence under section 395 of I.P.C. read with section 397 of I.P.C. is proved, but due to want of material the offence under section 14 of the Foreigners’ Act remained disproved. 26. In the result, the conviction and sentence against the appellants under section 395 I.P.C. read with section 397 I.P.C. is hereby confirmed, but the conviction and sentence under section-14 of the Foreigners’ Act against the appellants is not agreed with. 26. In the result, the conviction and sentence against the appellants under section 395 I.P.C. read with section 397 I.P.C. is hereby confirmed, but the conviction and sentence under section-14 of the Foreigners’ Act against the appellants is not agreed with. Thus, this Court acquitted the appellants for the offence under section 14 of the Foreigners’ Act. Hence, the JCRLA is partly allowed. The L.C.R. be returned forthwith.