JUDGMENT : Rajiv Sharma, J. 1. Since the common questions of law and facts are involved in all these appeals, the same have been taken up together and decided by this common judgment. 2. These appeals are directed against the common judgment and order dated 21.1.2011 passed by the Additional Sessions Judge, Roorkee (Haridwar) in S.T. No.184/2009, whereby, all the accused/respondents, namely, Shamsher Ali, Irshad @ Pappan, Babu Bhan, Ejaj and Fayyaz, who were charged with and tried for the offences punishable u/s 395/412 IPC, were acquitted. The Trial Court also acquitted the accused Aakil @ Bhura (S.T. No.183/2009) for the offence under Section 395 IPC. Accused Babu Bhan and Fayyaz were acquitted (S.T. Nos.185/09 and 187/09) for the offence under Section 25 Arms Act whereas accused Ejaj (S.T. No.186/09) was acquitted for the offence under Sections 25/4 Arms Act. 3. Case of the prosecution, in a nutshell, is that an FIR was registered at P.S. Kotwali Roorkee. According to the contents of FIR, on 14.4.2007, PW1 Nirabhjit Singh was sitting in his house along with his family members. At about 11:30 PM, 8-10 miscreants entered his house. The family members were forced to cook food for them. The family, under their threat, cooked food for them. Accused decamped with 4 rings, one chain, two ear rings (all made of gold), Rs.30,000/- in cash, two colour televisions, one D.V.D. Player, one Mixer, two mobile phones, one sword etc. The family members were also locked in a room. 4. Police was informed and thereafter the FIR was registered. Accused Shamsher and Irshad were arrested on 7.5.2007. On 10.5.2007, accused Babu Bhan, Ejaj and Faiyyaz were arrested on the basis of information supplied by the informant. The items involved in the dacoity were recovered from the possession of accused persons. All the accused, except Akil @ Bhura, were identified on 30.5.2007. Akil @ Bhura could be identified on 9.1.2008. 5. Prosecution has examined twelve witnesses to prove its case. Statements of the accused were also recorded u/s 313 Cr.P.C. They have denied the case of prosecution and examined three witnesses. The Trial Court has acquitted the respondents-accused, as noticed hereinabove. Hence these appeals by the State. 6. PW1 Nirabhjit Singh has deposed that on 14.4.2007 at about 11:30 PM, he was sitting in his house. His family members were present with him. About 8-10 miscreants entered his house. Family members were threatened. The Trial Court has acquitted the respondents-accused, as noticed hereinabove. Hence these appeals by the State. 6. PW1 Nirabhjit Singh has deposed that on 14.4.2007 at about 11:30 PM, he was sitting in his house. His family members were present with him. About 8-10 miscreants entered his house. Family members were threatened. Receiver of the landline phone was broken. Two mobiles were also picked up. Miscreants took away the items i.e. four gold rings, one gold chain, one pair of earrings, Rs.30,000/- in cash, two televisions, one DVD player, one Mixer, one sword etc. The miscreants locked the family in one room. At about 1:05-1:10 AM, Manoj Kapil was informed about the incident. Manoj informed the police. Police reached the spot at 1:40 AM. Accused were got identified by police from him in Sub-Jail Roorkee. He did not see the accused from the date of occurrence till the date of identification. In his cross-examination, he has admitted that the accused did not administer beatings to any family member but the family was threatened. He also stated that the accused stayed in the house for a considerable period. Miscreants forced to cook food for them. They did not eat the food rather they got it packed. He has disclosed the description of miscreants to the police including the clothes worn by them. He has also stated that when the test identification parade was held, 10-20 people were there. All of them were wearing different clothes and they were of different features. 7. Statement of PW1 Nirabhit Singh is corroborated by the statement of his wife PW2 Smt. Jasvir Kaur. She has deposed that she did not see the accused from the date of incident till their identification. In cross-examination, she has deposed that all the accused were wearing different clothes and their features were also different. 8. PW3 S.I. Govind Ram Bhatt has deposed that he was posted in P.S. Roorkee on 7.5.2007. Along with other police personnel, he went in search of the accused. They were informed by the informant that two accused were coming towards village Kurdi. He arrested Shamsher and Irshad on 7.5.2007. Recoveries were effected from them. 9. PW4 Bhagwati Prasad Kukreti has deposed that on 10.5.2007, he was posted as SHO Kotwali Roorkee. On that day, he arrested the accused Babu Bhan, Ejaj and Faiyyaz and recoveries were also effected from them. 10. He arrested Shamsher and Irshad on 7.5.2007. Recoveries were effected from them. 9. PW4 Bhagwati Prasad Kukreti has deposed that on 10.5.2007, he was posted as SHO Kotwali Roorkee. On that day, he arrested the accused Babu Bhan, Ejaj and Faiyyaz and recoveries were also effected from them. 10. PW5 Constable Vijay Kumar has deposed that he went along with the S.H.O. B.P. Kukreti in the search of accused. 11. PW6 Manoj Kapil deposed that Satwant Singh is known to him. In the night of 14.4.2007, a dacoity took place in his house. He was informed over telephone. He reached the house of Satwant Singh. Thereafter, the FIR was registered. 12. PW7 Head Constable Sohan Pal Singh has deposed that he received the information on 15.4.2007 that a dacoity has taken place in the house of Satwant Singh. 13. PW8 S.I. Pradeep Negi and PW9 S.I. R.K. Chauhan are the formal witnesses. 14. PW10 Ramesh Chand Chaudhary (Retired SSI) and PW11 Dinesh Singh Bhandari are the Investigating Officers of the case. 15. PW12 Inspector Kailash Panwar is also a formal witness. 16. Accused, in the defence, have examined DW1 Smt. Shagufta, DW2 Rajendra Singh and DW3 Constable Arun Kumar. 17. What emerges out from the facts, enumerated hereinabove, is that the incident took place on 14.4.2007. According to the statements of PW1 Nirabhjit Singh and PW2 Smt. Jasvir Kaur, the miscreants entered their house. They broke the receiver of landline phone and had taken two mobiles in their possession. Thereafter, they forced the family members to cook food for them. PW1 Nirabhit Singh, in his cross-examination, has admitted that the miscreants did not eat the food, rather they got it packed. Miscreants took away the items, as narrated by him in his statement. According to PW1, the entire family was locked in a room. PW2 Smt. Jasvir Kaur has also corroborated the statement of PW1 Nirabhjit Singh. 18. On a perusal of the evidence led by the witnesses, we find no evidence to point out as to how PW1 Nirabhjit Singh and his family came out of room when they were locked. In case, the landline was broken by the miscreants and their mobile phones were also taken away by the accused, then how did they inform PW6 Manoj Kapil, has not been duly explained by the prosecution. 19. In case, the landline was broken by the miscreants and their mobile phones were also taken away by the accused, then how did they inform PW6 Manoj Kapil, has not been duly explained by the prosecution. 19. Accused Shamsher and Irshad were arrested on 7.5.2007 whereas Babu Bhan, Ejaj and Fayyaz were arrested on 10.5.2007. However, their test identification parade was belatedly held on 30.5.2007. Accused Aakil @ Bhura was lodged in some different jail and he could be identified on 9.1.2008. The test identification parade should have been held immediately after the arrest of accused. It has come on record that the accused were brought to the Court unmasked. Thus, the possibility of they being shown to the witnesses cannot be ruled out. 20. It has also come in the statements of PW1 Nirabhjit Singh and PW2 Smt. Jasvir Kaur that the persons, who were standing in queue for identification, were wearing different clothes and their features were also not similar. They were of different size. There is a procedure laid down for holding the test identification parade. In the test identification parade, all the accused are required to be mixed up with the remaining persons and all are to be dressed in same clothes. In case, the accused and other people wear different clothes, it becomes easy for the witnesses to identify the culprits. The endeavour is to be made to ensure that the built of the accused, who are shown to the witnesses, and their clothes should be the same. Prosecution has not explained the delay in identification of accused by the witnesses. Moreover, there is also a variance about the place from where the accused were arrested and a number of items were recovered from them. 21. The witnesses have neither disclosed in their statements nor it has come in the first information report about the identification of the accused, their height, stature, complexion, features etc. 22. It is not believable that the accused remained in the house of PW1 Nirabhjit Singh for more than 1½ hour without showing any resistance. 23. Moreover, in this case, the Magistrate, before whom the test identification parade was held, has not been examined to prove the memos of identification. A detailed procedure has been laid down under the U.P. Jail Manual, as applicable to the State of Uttarakhand, in paragraph no.443. 23. Moreover, in this case, the Magistrate, before whom the test identification parade was held, has not been examined to prove the memos of identification. A detailed procedure has been laid down under the U.P. Jail Manual, as applicable to the State of Uttarakhand, in paragraph no.443. The manner in which the test identification parade is held is to be read in conjunction with Rule 61 of the General Rules (Criminal) regarding the trials. For the sake of convenience, paragraph no.443 of the U.P. Jail Manual is quoted as below: - “443. Procedure in the case of undertrial prisoners who have to be subsequently identified. (a) When an undertrial prisoner who may have to be subsequently put up for identification by witnesses is admitted to jail, the Superintendent of police or some police officer not below the rank of an inspector shall inform the jail in writing at the time of admission or as soon thereafter as possible, that the prisoner will be put up for identification: Provided that prisoners who are to be identified be not selected for being mixed up at the identification parades. (b) When such intimation has been received the Superintendent of jail shall issue instruction with a view to preventing the prisoner from disguising himself or charging his appearance in such way as to make recognition difficult. Such prisoners shall be required to keep their hair in the same condition until convicted or discharged, e.g., if the prisoner is clean shaven he must not be allowed to grow a beard and vice versa. At the time of the identification parade the prisoner shall wear the same clothing as he was wearing at the time of admission. If he cannot wear his own clothes he shall wear clothes of a similar kind, eg., if he is a field labourer he should not be dressed in the white clothes of a city man or vice versa. In all cases of doubt the orders of the Magistrate conducting the identification should be taken. Before the proceedings begin, the prosecuting inspector and counsel for the defence, who shall be permitted to be present, may satisfy themselves that all the rules in this paragraph have been fully observed. The proceedings shall also be attended by a jail officer who shall carry out any orders given to him by the Magistrate conducting the identification. Before the proceedings begin, the prosecuting inspector and counsel for the defence, who shall be permitted to be present, may satisfy themselves that all the rules in this paragraph have been fully observed. The proceedings shall also be attended by a jail officer who shall carry out any orders given to him by the Magistrate conducting the identification. (c) The prisoner to be identified shall be placed among a number of prisoners as similar to him as possible in dress, statue and appearance and shall not be allowed to conceal his face or stature so as to impede recognition: Provided that prisoners who are to be identified be not selected for being mixed up at the identification parades. (d) When a prisoner who is wearing fetters is to be identified the prisoners paraded with him should be selected from among those who are wearing fetters. Conversely, if the prisoner to be identified is not wearing fetters none of those paraded with him should be wearing fetters. Where this is impracticable the method of coneering up all prisoners in the parade, whether wearing fetters or not, up to the waist with blankets may be adopted.” 24. Similarly, Rule 61 of the General Rules (Criminal) is also reproduced below: - “61. Identification proceedings in jail for the identification of suspects shall invariably be recorded by magistrates in Form No. 34 (Part IX No. 65) in duplicate by the use of carbon paper and ball-pointed pencils. The original' ' shall be sent to the court concerned and the carbon copy shall be made over to the jail authorities for record and production in court, when needed. Relevant Circular Orders: “1. C.L. No. 61/Adm.(B) dated 24th April, 1974 C.L. No. 70/Adm. (B) dated 7th May, 1974 (modified) Recording of dying declarations and identification proceedings should continue to be done by the Executive Magistrates as was done by them prior to April 1, 1974, and that the Judicial Magistrates need not do this work. 2. C.L. No. 45 dated 19th August, 1960 All Magistrates, Sessions Judge, Additional District and Sessions Judges and Assistant Sessions Judges should note that the identification memos particularly in dacoity cases are important documents. By constant and careless use in subordinate courts those memos are sometimes reduced to tatters by the time they reach the High Court in appeal or revision. C.L. No. 45 dated 19th August, 1960 All Magistrates, Sessions Judge, Additional District and Sessions Judges and Assistant Sessions Judges should note that the identification memos particularly in dacoity cases are important documents. By constant and careless use in subordinate courts those memos are sometimes reduced to tatters by the time they reach the High Court in appeal or revision. The result is that the most important information required by the Court is not available on the record. They should, therefore, take proper care to see that the identification memos are properly preserved.” 25. In AIR 1970 S.C. 1321 in the case of ‘Budhsen & another v. State of U.P.’ their Lordships of Hon. Supreme Court have explained the essentials of holding the test identification parade and the value of identification evidence. In paragraph no.7, their Lordships have held as under: - “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. 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 of the essentially governed by Section 162, Criminal Procedure Code. 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: that the life and liberty of an accused may depend on their vigilance and caution and that justice should be done in the identification. Those proceeding 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 seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had 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 persons required to identify an accused should have had 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. Shri Pratap Singh, Magistrate, who conducted the identification, has appeared at the trial as PW 20. The identification memo in respect of Naubat, appellant, is Ex. Ka-20, dated October 21, 1967 and in respect of Budhsen is Ex. Ka-21, dated October 28, 1967.” 26. In (2010) 3 S.C.C. Page 508 in the case of ‘Mulla & another v. State of U.P.’ their Lordships of Hon. Supreme Court have held that it is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. Their Lordships further held that the test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. Their Lordships, in paragraph nos.44, 45, 54 and 55, have held as under: - “44. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. 45. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 54. In another case of Pramod Mandal v. State of Bihar placing reliance on Anil Kumar this Court observed that: (Pramod case10, SCC p. 158, para 20) “20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.” 55. The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge: (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses.” 27. For the aforesaid reasons, we are of the considered view that the prosecution has failed to prove its case against the accused beyond reasonable doubt for the offences under which they were charged. There is neither any illegality nor any perversity in the findings of acquittal recorded by the trial court. 28. Accordingly, we do not find any reason to interfere with the well reasoned judgment of the Trial Court. All the appeals fail and the same are dismissed. 29. Let a copy of this judgment and order along with the LCR be transmitted to the Court below for information.