JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. Two separate appeals bearing S.B. Criminal Appeal No. 927 of 2015 and S.B. Criminal Appeal No. 935 of 2015 preferred by same appellant-Taufiq Khan @ Dhanpat pertaining to two separate Sessions Trial No. 63 of 1996 and Sessions Trial No. 62 of 1996 shall be decided separately but simultaneously strictly confining to separate evidence led in two separate trials. 2. Taufiq Khan @ Dhanpat son of Mangli has instituted the present appeal in order to assail the impugned judgment dated 10.09.2015, whereby he has been convicted for commission of offence punishable under Section 395 of the Indian Penal Code. 3. Having convicted the appellant, the said Court, vide a separate order of even date, sentenced the appellant to undergo seven years rigorous imprisonment and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months additional rigorous imprisonment. 4. The appellant was charged for offences punishable u/Ss. 395 and 397 of the Indian Penal Code. The charge stated that the appellant on 9.3.1992 in the night at around 2.00 a.m. along with five other persons with the common intention to commit dacoity at the shop of Teekam fired a shot at him. 5. The said charge framed in Hindi reads as under:- ^^vkjksi&i= eSa] ;qf/kf"Bj 'kekZ] vkjŒ,pŒtsŒ,lŒ vij ls'ku U;k;k/kh'k la[;k 1 ¼,d½] Mhx ftyk Hkjriqj ,rn~}kjk vki Jh rkSQhd iq= Jh eaxyh tkfr eso fuoklh esgUnhiqj ihŒ,lŒ tsoj ij fuEu vkjksi yxkrk gaw %& ¼1½ fnukad 09-03-1992 dks jkr 02 ,Œ,eŒ dks ;k mlds djhc Mhx esa Vhde dh nqdku esa MdSrh Mkyus gsrq vkius o vU; ikap yksxks us Vhde dks cUnwd ls ?kk;y dj tsojkr oxSjg dh MdSrh Mkyh vkSj rS;kjh dhA vkSj ,rn~}kjk vkius Hkkjrh; n.M lafgrk dh /kkjk 395@397 ds v/khu n.Muh; vijk/k fd;k tks fd esjs ÁlaKku esa gSA** 6. In the present case, no First Information Report has been proved on the record. 7. Teekam Seth at whose shop alleged dacoity was committed has not been examined though his statement was recorded under Section 299 Cr. P.C. 8. In the present appeal, the prosecution has only examined three witnesses, namely Bhagwan Singh (PW-1), Sandeep Kumar Sharma (PW-2), who was then posted as Judicial Magistrate, Deeg and Uttam Lal (PW-3) respectively. 9. Bhagwan Singh (PW-1) was examined on 09.06.2015 before the ld. trial Court. P.C. 8. In the present appeal, the prosecution has only examined three witnesses, namely Bhagwan Singh (PW-1), Sandeep Kumar Sharma (PW-2), who was then posted as Judicial Magistrate, Deeg and Uttam Lal (PW-3) respectively. 9. Bhagwan Singh (PW-1) was examined on 09.06.2015 before the ld. trial Court. He deposed in the Court that 15-20 years ago, a dacoity was committed at the shop of Teekam Seth. The Police from the shop had lifted one packet of empty cartridge, one riffle vide memo Exhibit-P/1. Furthermore, one pair of shoe, one chapple lakhani blue in colour, one safi, one woolen shawl, three empty cartridges of twelve bore were taken into possession vide Exhibit-P/2. In cross-examination, this witness stated that the said recovery was not affected in his presence and his signatures were obtained at the Police Station. 10. In cross-examination, this witness stated as under:- ^^lkeku esjs lkeus tCr ugha fd;k Fkk Fkkus ij nLr[kr djk;s Fks esjs rksA u eSa vkt lkeku dks igpku ldrk gawA Fkkus ij [kkyh dkxt ij nLr[kr djk fy;s FksA** 11. Sandeep Kumar Sharma (PW-2) stated that he was then posted on 15.07.1996 as Munsif cum Judicial Magistrate, Deeg. He deposed that on that day, the Orders of Chief Judicial Magistrate were produced before him directing to hold identification proceedings. On 17.07.1996 identification proceedings could not be carried. On 18.07.1996 Taufiq Khan was identified by Teekam Seth and Shyam Lal at Sub Jail, Deeg. The exact words stated by this witness are that:- ^^ftl Øe esa fnukad 18-07-1996 dks vfHk;qDr rkSQhd dh xokgku Vhdepan o ';keyky ls f'kuk[rxh dk;Zokgh lctsy Mhx esa laikfnr djkbZ xbZA** 12. Uttam Lal (PW-3) has stated that on 12.07.1996 he was posted as Assistant Sub Inspector and on the said date, the present appellant in a case bearing No. 113/1992 was arrested. 13. The entire statement of the accused recorded under Section 313 Cr. Uttam Lal (PW-3) has stated that on 12.07.1996 he was posted as Assistant Sub Inspector and on the said date, the present appellant in a case bearing No. 113/1992 was arrested. 13. The entire statement of the accused recorded under Section 313 Cr. P.C. reads as under:- ^^Á'u % vkids fo:} xokg ihŒMCY;wŒ&1 Hkxokuflag dk c;ku gS fd 15&20 lky igys Vhde lsB ds ;gk¡ MdSrh gqbZ Fkh] iqfyl us ,d jk;Qy [kkyh [kks[kk dkjrwl vkfn tIr fd;s Fks] vkidks D;k dguk gS \ mRrj % xyr Á'u % vkids fo:} xokg ihŒMCY;wŒ&2 lanhi 'kekZ dk ;g Hkh c;ku gS fd fnukad 15-07-1996 dks og ,eŒtsŒ,eŒ Mhx ds in ij rSukr Fkk] vkidh igpku dh dk;Zokgh xokg ';keyky] Vhdepan o jeuyky ls djkbZ Fkh] xokg Vhdepan o ';keyky us vkidks lgh igpkuk Fkk] bl ckjs esa QnZ Án'kZŒihŒ&3 cukbZ Fkh] vkidks D;k dguk gS \ mRrj % xyr Á'u % vkids fo:} xokg ihŒMCY;wŒ&3 mRreyky dk c;ku gS fd fnukad 12-07-1996 dks og iqfyl Fkkuk Mhx ij ,Œ,lŒvkbZŒ ds in ij rSukr Fkk] vkidks Ádj.k la[;k 113@92 iqfyl Fkkuk Mhx esa ,ŒlhŒtsŒ,eŒ Mhx ds vkn'kZ ls ckinkZ fxjrkj fd;k x;k Fkk o f'kuk[rxh dk;Zokgh gsrq rgjhj nh Fkh] vkidks D;k dguk gS \ mRrj % xyr Á'u % xokgku vkids fo:} D;ksa dgrs gS \ mRrj % >wB cksyrs gSA Á'u % D;k vki lk{; lQkbZ is'k djsaxs \ mRrj % ugha Á'u % D;k vkidks vkSj dqN dguk gS \ mRrj % >wBk Qalk;k x;k gSA** 14. The ld. trial Judge, considering that the accused was identified in the Test Identification Parade by the witnesses-Teekam Chand and Shyam Lal, who have died and their statements were recorded under Sec. 299 Cr. P.C. has drawn an inference that on the said date the accused had committed dacoity. 15. It is a well settled legal position that the Test Identification Proceedings carried before the commencement of the trial are not a substantive piece of evidence. They are only to be used as a corroborative evidence. The identification in the Court is a substantive piece of evidence and the same is to be corroborated by the Test Identification Parade held in jail. 16. The Supreme Court in the case of Heera v. State of Rajasthan, reported as (2007) 10 SCC 175 relying upon Matru v. State of U.P. reported as (1971) 2 SCC 75 , observed as under:- 5. 16. The Supreme Court in the case of Heera v. State of Rajasthan, reported as (2007) 10 SCC 175 relying upon Matru v. State of U.P. reported as (1971) 2 SCC 75 , observed as under:- 5. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 16. As was observed by this Court in Matru v. State of U.P. ( (1971) 2 SCC 75 ) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain ( (1973) 2 SCC 406 ). The necessity for holding an identification parade can arise only when the accused 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. 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. 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. It is desirable that a test identification parade should be conducted as soon as 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. 17. It is trite to say that the substantive evidence is the evidence of identification in Court. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 17. It is 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. 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 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. 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 v. Delhi Administration ( AIR 1958 SC 350 ), Vaikuntam Chandrappa v. State of Andhra Pradesh ( AIR 1960 SC 1340 ), Budhsen v. State of U.P. ( (1970) 2 SCC 128 : AIR 1970 SC 1321 ) and Rameshwar Singh v. State of Jammu and Kashmir ( (1971) 2 SCC 715 : AIR 1972 SC 102 )].” 17. No evidence has been produced by the prosecution that the accused was a one who had committed dacoity, at whose house dacoity was committed, and when it was committed, no substantive evidence has been led by the prosecution, even if it is accepted that statements of Teekam Seth and Shyam Lal under Section 299 Cr.P.C. can be read against the appellant because of Section 299 Cr.P.C. same cannot be taken into consideration because they were not put to the accused as incriminating circumstances in statement of accused recorded under Section 313 Cr. P.C. Merely because the recovery of articles and empty cartridge was effected from the spot, the accused was arrested and was identified, in Test Identification Parade is not sufficient to prove that he is one who had committed dacoity. There must be some substantive piece of evidence of the witnesses to say that the offence, if any, was committed by the present appellant. Merely because in the Test Identification Parade the accused was identified no presumption can be drawn that he is one who had committed offence as statements of Teekam Seth and Shyam Lal recorded under Section 299 Cr. P.C. have not been put to accused under Section 313 Cr. P.C. and test identification proceedings carried in jail are not substantive piece of evidence. 18. Taking totality of circumstances, the present appeal is accepted. The impugned judgment of conviction pronounced and the order awarding sentence upon the appellant is set aside and the appellant is acquitted of the charges. 19. The appellant is stated to be in custody from last three years, ten-months and three-days, therefore, he be set at liberty forthwith, if not required in any other case. 20. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Apex Court.