JUDGMENT : D.P. CHOUDHURY, J. 1. The appellant in the captioned appeal challenges the order of conviction and sentence passed by the learned Addl. Sessions Judge, FTC - II, Balasore for the offence under sections 395 of I.P.C. read with section 397 of I.P.C. read with section 14 of the Foreigner's Act in S.T. Case No. 133/74 of 2009/2008. 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 appellant 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 appellant and others stopped them and also forcibly removed cash and gold ornaments from their possession. A passenger bus came. The appellant and other co-accused persons came there, but the driver of the bus speeded up the vehicle and fled away. Thereafter the appellant and co-accused persons 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 appellant and others. The police also seized the stolen materials from the appellant and co-accused persons. 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 appellant 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 witnesses has came to the conclusion that the appellant 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 witnesses has came to the conclusion that the appellant 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 appellant to undergo R.I. for 14 years and to pay a fine of Rs. 2,000/- in default to undergo further R.I. for one year for the offence under section 395 of I.P.C. read with section of 397 I.P.C. and further sentenced to undergo R.I. for five years and to pay fine of Rs. 1,000/- in default to undergo further R.I. for six months for the offence under section 14 of Foreigner's Act. Both the sentences are directed to run concurrently. SUBMISSIONS: 5. Learned counsel for the appellant submitted that the learned trial court has committed error by finding the appellant guilty in absence of any tangible evidence on record. He further submitted that during T.I. parade the present appellant was not identified by any of the prosecution witnesses. Also there is no seizure of any stolen material from the possession of the appellant. Moreover, learned counsel for the appellant submitted that the statements of the witnesses are contrary to each other as to the exact properties stolen. He further submitted that the report of the doctor does not tally with the evidence of the informant as to the place and nature of injuries sustained during commission of dacoity. He further submitted that the identification in the court has no evidentiary value when the witness has not identified appellant the during T.I. parade held in the jail. Further he submitted that there is unexplained delay in lodging the F.I.R. Thus, he submitted that the trial court has committed error in passing the judgment of conviction and sentence for which the same should be set aside. 6. Learned Additional Government Advocate submitted that the learned trial court has examined the materials on record meticulously and rightly found the complicity of the appellant with commission of offence. He submitted that the evidence of the doctor clearly shows that the inmates of the vehicle and passengers of other vehicle have sustained injuries on their persons due to assault by the appellant and co-accused persons. He submitted that the evidence of the doctor clearly shows that the inmates of the vehicle and passengers of other vehicle have sustained injuries on their persons due to assault by the appellant and co-accused persons. According to him, the trial court has well discussed the evidence and rounded up the links of the circumstances duly proved and found the chain of circumstance against the appellant have been completed to prove his 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: 7. 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 PWs. to come to a conclusion whether evidence recorded by the trial court is correct. It is also well settled in law that the court should separate grain from the chaff and the evidence weighed, but not to be counted. 8. It is revealed from the evidence of PW-1 that while he and his family members were coming from Nilgiri in an Ambasador 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 PW-1 it is clear that in the occurrence night there was a dacoity committed. PW-2 who is the driver of the car corroborating the evidence of PW-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 PWs. 3 and 4 also corroborate the evidence of PW-1 as to commission of dacoity. PW-5 who was coming in the Ambulance bearing No. OR-01-3516 also revealed about 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. PW-14 who is also an inmate of the Ambassador car corroborates the evidence of PWs. PW-5 who was coming in the Ambulance bearing No. OR-01-3516 also revealed about 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. PW-14 who is also an inmate of the Ambassador car corroborates the evidence of PWs. 1 to 3 about removal of the valuables from them by six to seven culprits after assaulting them. Similar is the statement of PW-6, who was also an inmate of the ambulance corroborates the evidence of PW-5 about removal of valuables after assaulting the inmates by the culprits. PW-10 who is also the inmate of the car corroborating the statement of PWs. 1 to 3 stated that when the vehicle in which she was travelling was rubbed by six to seven unknown persons. On the other hand she has corroborated the evidence of PWs. 1 to 3. PW-12 who was also coming on a bike corroborating the evidence of PWs. 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. PW-13 who was accompanying PW-12 also corroborated the evidence of PW-12 about the dacoity committed by six to seven persons. 9. 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. 10. Now the question arises as to who were the culprits. The prosecution has tried to prove through circumstantial evidence about involvement of the present appellant and other co-accused persons. The prosecution has more relied on the T.I. parade to base conviction against the appellant. So far as T.I. parade is concerned the law on the subject is res integra. It is reported in Budhsen and Another vs. State of U.P. 1970 (2) SCC 128 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. It is reported in Budhsen and Another vs. State of U.P. 1970 (2) SCC 128 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. 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. 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.........” 11. 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 by Magistrate has been followed properly or not so as to ensure fair trial. 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 by Magistrate has been followed properly or not so as to ensure fair trial. 12. The evidence of PW-8 who is the Magistrate conducting the T.I. parade clearly revealed about the procedure of holding T.I. parade inside the jail premises. According to him, he allowed six suspects with16 nos. of similarly dressed persons and similar height, complexion and appearance. According to him, witnesses Satya Prakash Pati, Sanjaya Mohanty, Raj Kishore Mohapatra and Baji Soud correctly identified five culprits, but could not identify the present appellant although he was also mixed as suspects. On the other hand the present appellant has raised objection before PW-8 stating that in earlier occasion their photographs were taken during their detention at the Police Station. He proved his report vide Ext.11 and in cross-examination it is clearly stated that none of the witnesses identified the present appellant during T.I. parade. 13. The evidence of PWs. 1, 2, 3, 4, 5 and 6 revealed that they identified the present appellant in court, but they have not stated to have participated in the T.I. parade. Rather, it is revealed from their evidence that earlier to the identification in court in court the police had called them to Police Station where they had seen the appellant. Similarly the evidence of PWs. 12 and 13 do not disclose to have identified the present appellant before the Magistrate and in the court to prove complicity of the present appellant except stating about the occurrence. It also appears that PW-16 has participated in T.I. parade conducted by PW-8, but he did not state to have identified the appellant during T.I. parade. 14. Besides the above evidence there is nothing revealed by the witnesses as to what property has been removed from the present appellant. The evidence of PWs. 17 and 18 also do not disclose about any stolen articles involved in this case recovered from the possession of the present appellant. When there is no seizure of the properties removed from PWs. 2, 3, 4, 5, 6, 13, 15 and 16 by the appellant, it is difficult to observe that strong circumstance of recovery of the stolen articles is proved against the appellant. 15. When there is no seizure of the properties removed from PWs. 2, 3, 4, 5, 6, 13, 15 and 16 by the appellant, it is difficult to observe that strong circumstance of recovery of the stolen articles is proved against the appellant. 15. So far as section 14 of the Foreigner’s Act is concerned, no charge-sheet was submitted against the present appellant, but only charge has been framed against the present appellant for committing such offence. The evidence of PW-18 who is the I.O. in this case could not show what action has been taken to array appellant 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, PW-17 in cross-examination admitted that only appellant confessed that he belongs 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 appellant under Foreigner’s Act. Since the confession before the police is not admissible and no material is available to show that as foreigner he has entered the Indian Territory, rightly he has not submitted charge-sheet against the appellant 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 him under section 14 of the Foreigner’s Act. Hence, the question of convicting the appellant 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 appellant under section 14 of the Foreigner’s Act is also not proved. 16. In view of the aforesaid analysis the Court is of the view that the prosecution has failed to prove the offence under section 395 of I.P.C. read with section of 397 I.P.C. and section 14 of the Foreigner’s Act by direct or circumstantial circumstances. The finding of the learned trial court to convict the present appellant having not been discussed in accordance with law, the same is departed herewith. On the other hand the conviction and sentence passed against the appellant by the learned trial court is hereby set aside. The finding of the learned trial court to convict the present appellant having not been discussed in accordance with law, the same is departed herewith. On the other hand the conviction and sentence passed against the appellant by the learned trial court is hereby set aside. The present appellant is acquitted of the offence under section 395 of I.P.C. read with section 397 of I.P.C. and section 14 of the Foreigner’s Act 17. In the result, the Jail Criminal Appeal is allowed and the appellant be set at liberty forthwith if not detained in any other case. 18. The L.C.R. be returned forthwith.