JUDGMENT : V.M. DESHPANDE, J. 1. These two appeals are heard together and are disposed of by this common judgment since both the appeals arise out of judgment and order of conviction dated 24.3.2004 passed by 1st Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.572/2002. 2. By the impugned judgment and order of conviction, the appellants in these appeals are convicted for offence under Section 392 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of rs.1000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 6 months. 3. Criminal Appeal No.204/2004 is filed by Shambabu s/o Siddhagopal Suryawanshi, the accused No.1. Whereas, Criminal Appeal No.413/2004 is filed by Rajjan @ Baggad s/o Mishrilal Kuril, the accused No.2. In this judgment, the appellants will be referred to by their original positions in charge. 4. Accused No.1 Shambabu, is represented by learned senior counsel Shri Anil S.Mardikar along with Advocates Shri C.R.Thakur and Rishabh Khemuka. Accused No.2 Rajjan, is presented by learned counsel Shri R.M.Daga. In both these appeals, the State of Maharashtra is represented by learned Additional Public Prosecutor Shri M.K.Pathan. 5. Facts giving rise to the present appeals can conveniently be stated as under: (A) Devprasad Himanshu Sengupta (PW7), firstly went to Walni Outpost of Khaperkheda Police Station for narration of incident. However, he was asked to lodge a report. Thereafter, he came to his house and then rang up to Khaperkheda Police Station and informed police about commission of robbery in his house. (B) The telephonic information was received by Assistant Police Inspector Rajesh Awdumbar Dudhalwar (PW20) and accordingly he went to spot of incident. He went to house of Smt.Shampa (PW2) (wife of Devprasad) and recorded report of Smt.Shampa. Her oral report is at Exhibit 12. It appears that on the basis of the oral report (Exhibit 12), a crime vide Crime No.44/2002 was registered at Khaperkheda Police Station for offences under Section 392 read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act, 1959. The crime was registered against 3 unknown persons. Printed First Information Report is at Exhibit 23. The crime was registered against 3 unknown persons. Printed First Information Report is at Exhibit 23. (C) The oral report (Exhibit 12) lodged by Smt.Shampa recites that on 24.4.2002 at about 1:15 O'clock in the noon, her husband Devprasad (PW7) went to village Bina for attending a marriage and in the house she, her mother-inlaw Smt.Rama, and her two daughters, Jiya aged 12 years and Bulbul aged 9 years, were present. Front door of her house (quarter) was latched from inside. At 1:40 O'clock in the noon, 3 persons entered the house by pushing the front door. At that time, Smt.Shampa had taken her bath and stepped out of bathroom. Those 3 persons were looking for something in 3 different rooms. When she made enquiry as to how they entered the house and what they are looking for, at that time a person, wearing a navy blue coloured full sleeves shirt and faded blue coloured jeans and who was of dark complexion, short heighted and slim and having beard and whose hair were combed backward, inserted revolver in her mouth and they took her to bedroom where Television Set was kept and asked her to give cash, gold and silver available in the house by threatening to kill all the persons present in the house. The oral report further recites that she told them that she was not having locker keys as doctor (her husband) had taken the same with him. Thereupon, they snatched gold ornaments from her person. One person remained with her and two persons took search of the bedroom in which the Television Set was kept. That time, she took out cash from almirah amounting to Rs.600/- and gave the said to them. Thereafter, they extended threats to kill her two children and under the fear she showed keys of almirah and, thereafter, they opened the almirah and looted various articles. It is also stated in the oral report that out of those 3 persons, one was of 6 feet tall, fair complexion, and aged about 27 years; another was of dark complexion and short having grown up beard; and third was short and whose age must be 26 years. All of them were talking in hindi language and they were in her house till 2:00 O'clock in the noon. (D) Investigating Officer Rajesh Dudhalwar (PW20) prepared spot panchnama (Exhibit 10). Dr. All of them were talking in hindi language and they were in her house till 2:00 O'clock in the noon. (D) Investigating Officer Rajesh Dudhalwar (PW20) prepared spot panchnama (Exhibit 10). Dr. Ashok Madhavrao Ganjare (PW1) is one of panchas. As the descriptions of the intruders were given, Investigating Officer Rajesh Dudhalwar zeroed his suspicion on Shambabu, accused No.1. He went to his house, collected photographs from his house, and showed the said photographs to Smt.Shampa (PW2). Thereupon, Smt.Shampa pointed out the accused in the photograph as one of intruders. On 26.4.2002, the Investigating Officer got information that Shambabu had gone to his village Bhawara, District Hamirpur (U.P.). Therefore, he went to the village Bhawara. However, Shambabu was not present there. On 25.5.2002, he came to know that both the accused are arrested by Jaripatka Police Station. Accordingly, he arrested the accused. He seized motorcycle of Shambabu, accused No.1 under seizure panchnama (Exhibit 39). During Police Custody Remand, Shambabu gave his disclosure statement that he sold the ornaments at Agra. Accordingly, he was taken by the Investigating Officer to Agra. Shambabu led the police party to a Goel Jewellers at Sultanpura where Puranchand Vithalal Agrawal (PW12) was present. Puranchand Agrawal told the Investigating Officer that he had purchased the gold ornaments from Shambabu, accused No.1. Puranchand told that he purchased gold bars from Shambabu, accused No.1. Those gold bars were seized in presence of panchas under seizure panchnama (Exhibit 30). Shambabu, accused No.1 also led the police party to Ramdas Jewellers where Ramdas Mulchand Agrawal (PW13) was present. From his shop also, gold bars were seized under seizure panchnama (Exhibit 32). (E) Rajjan, accused No.2, gave discovery statement pertaining to fact that where he concealed the revolver. The admissible portion is at Exhibit 49 and Exhibit 50 is recovery panchnama. (F) After completion of other usual investigation, Investigation Officer Rajesh Dudhalwar (PW20) filed final report in the Court of jurisdictional Magistrate. (G) Learned Jurisdictional Magistrate in whose Court the final report in Crime No.44/2002 was filed was pertaining to offences under Section 392 read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act, 1959, found that the offences are exclusively Triable by the Court of Sessions. Therefore, he committed the case to the Court of Sessions. Till filing of the chargesheet and committal, third unknown accused was not traced. Therefore, he committed the case to the Court of Sessions. Till filing of the chargesheet and committal, third unknown accused was not traced. Therefore, after issuing standing Non Bailable Warrant, charge was framed against both the accused by learned 1st Ad hoc Additional Sessions Judge, Nagpur for offences under Sections 392 and 397 read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act 1959. (H) In order to bring home the guilt of the accused persons, the prosecution examined in all 20 witnesses and also relied on various documents duly proved during course of the Trial. (I) After appreciation of the prosecution case, learned Judge of the Court below acquitted both the accused of offences under Section 397 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act, 1959, however, convicted them for offence under Section 392 read with Section 34 of the Indian Penal Code. Hence, this appeal. SUBMISSIONS : 6. Learned senior counsel Shri Anil S.Mardikar for the appellant in Criminal Appeal No.204 of 2004 strenuously urged before me that the entire prosecution case revolves around identification by Smt.Shampa (PW2) and her husband Devprasad (PW7) during the course of the investigation and identification by them in the Court. It is his submission that if identification by prosecution witnesses including the said two witnesses is found to be unreliable or cannot be considered, then there is no evidence connecting the present appellants for offence under Section 392 of the Indian Penal Code. He relies on 3 judgments of the Honourable Supreme Court in the cases of: (i) Mohanlal Gangaram Gehani vs. State of Maharashtra, reported at, (1982) 1 SCC 700 ; (ii) Mohd.Abdul Hafeez vs. Sate of Andhra Pradesh, reported at, AIR 1983 SC 367 ; and (iii) Ravindra alias Ravi Bansi Gohar vs. State of Maharashtra, reported at, AIR 1998) SC 3031. Also, he relied on the procedure for holding identification parades, as mentioned in the Criminal Manual. He submitted that though the prosecution proved that there took the robbery in the house of Smt.Shampa (PW2), the prosecution failed to prove beyond reasonable doubt that the appellants are the culprits. He, therefore, prayed for upsetting the judgment recording the conviction against the appellants. 7. He submitted that though the prosecution proved that there took the robbery in the house of Smt.Shampa (PW2), the prosecution failed to prove beyond reasonable doubt that the appellants are the culprits. He, therefore, prayed for upsetting the judgment recording the conviction against the appellants. 7. Learned counsel Shri R.M.Daga for the appellant in Criminal Appeal No.413 of 2004 adopted the submissions made by learned senior counsel. He submitted that he has no other submission. 8. Per contra, learned Additional Public Prosecutor Shri M.K.Pathan for the respondent/State vehemently submitted that evidence of Smt.Shampa (PW2) and evidence of Devprasad (PW7) shows that in Test Identification Parade they identified both the accused. It is his submission that in addition to identification by these two prosecution witnesses in the Test Identification Parade, even during the course of the Trial, they identified as persons who committed the crime in their house. It is his submission that since both the accused are identified during the course of the Trial, which is a substantive piece of evidence, the said is sufficient to uphold the impugned judgment. In support of his submissions, he relied on an authoritative pronouncement of the Honourable Apex Court in the case of Malkhansingh and others vs. State of Madhya Pradesh, reported at, AIR 2003 SC 2669 . In addition to the said, it is his submission that there is a corroboration in the nature of seizure of the gold from Jewellers Puranchand Agrawal (PW12) and Ramdas Agrawal (PW13) who also identified both the accused as persons who sold the gold to them. He, therefore, submitted that the appeals be dismissed. CRITICAL ANALYSIS OF THE PROSECUTION CASE : 9. At the outset, I would like to mention that though both the accused were charged for offences under 397 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act 1959 and they were acquitted by learned Judge of the Court below of the said charge. The prosecution accepted the verdict of the Trial Court to that extent by not preferring any appeal. 10. Therefore, this Court is required to answer a question posed to it as to whether the prosecution proved the guilt of the accused for offence under Section 392 of the Indian Penal Code beyond reasonable doubt. 11. Though the prosecution examined in all 20 witnesses, all panch witnesses turned hostile. 10. Therefore, this Court is required to answer a question posed to it as to whether the prosecution proved the guilt of the accused for offence under Section 392 of the Indian Penal Code beyond reasonable doubt. 11. Though the prosecution examined in all 20 witnesses, all panch witnesses turned hostile. Also, Rafiq Ahmad Abdul Rehman (PW8), who runs a Chicken Centre at Walni, who was examined by the prosecution to fix the presence of the accused persons at the relevant time of the commission of the offence in the vicinity of the spot of the incident, has turned hostile. Similarly, Macchindra Rupchand Shelare (PW18), who was examined by the prosecution to show that he was driver of vehicle who took Shambabu, accused No.1 to Dongargadh, has also failed to support the prosecution case. 12. The law regarding appreciation of witnesses, who failed to support the prosecution case, is well crystallized in the case of Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, reported at, (1991) 3 SCC 627 . However, to support the prosecution case even the law laid down in the said case cannot be applied since there is nothing in evidence of the said hostile witnesses by which one could state that to a slightest extent they supported the prosecution case. 13. The prosecution also examined Dr.Somshubhra Upresh Gupta (PW3). His evidence is also not relevant for deciding the present appeals since his evidence shows that he kept his gold ornaments in the house of Smt.Shampa (PW2) which were also looted away. 14. A Jeweller Ashokkumar Khemrajji Daga (PW14) from Dongargadh is concerned, learned Judge of the Court below himself recorded a finding that the prosecution failed to establish that Shambabu, accused No.1 sold the gold ornaments to him. 15. After keeping aside the evidence of hostile witnesses Rafiq Ahmad (PW8) and Macchindra Shelare (PW18) and evidence of Dr.Somshubhra Gupta (PW3) and jeweller Ashokkumar Daga (PW14), the Court is required to evaluate and scan evidence of following witnesses to record its finding and they are: [1] Smt.Shampa Devprasad Sengupta (PW2); 2] Devprasad Sengupta (PW7) husband of Smt.Shampa (PW2); 3] Arundhati alias Jiya Devprasad Sengupta (PW10); 4] Puranchand Vithalal Agrawal (PW12); 5] Ramdas Mulchand Agrawal (PW13); 6] Naib Tahsildar Prakash Ramrao Mahajan (PW17), and of course Investigating Officer Rajesh Awdumbar Dudhalwar (PW20). 16. Devprasad (PW7), was not present in the house when the incident took place. 16. Devprasad (PW7), was not present in the house when the incident took place. According to the prosecution, he noticed presence of Shambabu, accused No.1 in proximity of the actual incident of robbery in the vicinity of the spot of the incident. Smt.Shampa (PW2) and her daughter Arundhati (PW10) were present in the house at the time of occurrence of the incident. Puranchand Agrawal (PW12) and Ramdas Agrawal (PW13) are owners of jeweller's shops situated at Agra and according to the prosecution, the looted property was sold to them. Naib Tahsildar Prakash Mahajan (PW17) conducted Test Identification Parade. ABOUT TEST IDENTIFICATION : 17. Admittedly, neither Smt.Shampa (PW2); Devprasad (PW7) husband of Smt.Shampa (PW2); Arundhati (PW10); Puranchand (PW12) nor Ramdas (PW13) were knowing any of the accused prior to time when they came in contact with them at different point of time. 18. From the evidence of Investigating Officer Rajesh Dudhalwar (PW20), it is clear that from the descriptions given by Smt.Shampa (PW2) he zeroed down his suspicion on Shambabu, accused No.1 and accordingly he went to his house and collected the photographs from his house. 19. In order to ascertain identity of the accused persons, after they were arrested on 25.5.2002, the Investigating Officer gave a requisition (Exhibit 42) to Taluka Magistrate for holding and conducting Test Identification Parade and accordingly the Test Identification Parade was held by Naib Tahsildar Prakash Mahajan (PW17) at tahsil office at Saoner and per the prosecution, both Smt.Shampa (PW2) and Devprasad (PW7) identified both the accused. The Test Identification Parade memorandum Part-I is at Exhibit 13. Whereas, Test Identification Parade memorandum Part-II is at Exhibit 13-A. 20. Learned senior counsel stepped up a very serious challenge not only to the procedure adopted by Naib Tahsildar Prakash Mahajan (PW17) but also authenticity of the Test Identification Parade itself. According to him, if the record of the case is properly examined in its correct perspective, there is a serious doubt as to whether really on 25.5.2002 the Test Identification Parade was held. 21. With the assistance of learned senior counsel appearing in these appeals, I have gone through the record and proceedings of the case, in addition to proved documents during the course of the Trial. 22. 21. With the assistance of learned senior counsel appearing in these appeals, I have gone through the record and proceedings of the case, in addition to proved documents during the course of the Trial. 22. Exhibit 13 shows that on 25.5.2002 at 2:40 in the noon, Test Identification Parade (Part-1) was held in the Court of Tahsildar, Tahsil Office at Saoner, in which Smt.Shampa (PW2) and Devprasad (PW7) identified both the accused. Exhibit 13-A, the Test Identification Parade, shows that Naib Tahsildar Prakash Mahajan (PW17) completed entire procedure including writing of memorandum (Part-II) on 25.5.2002 at 4:00 O'clock in the noon. 23. In the backdrop, holding of the Test Identification Parades by two witnesses, my attention was drawn to Exhibit 42 and remand papers. 24. Exhibit 42 is a requisition given by Investigating Officer Rajesh Dudhalwar (PW20) to Taluka Magistrate, Taluka Office, Saoner on 25.5.2002 for holding Test Identification Parade of the accused persons in Crime No.44/2002 registered at Khaperkheda Police Station. The said requisition shows that the Test Identification Parade is required to be held for identification of the accused by Smt.Shampa (PW2). The said requisition also recites that on 25.5.2002 at 00:30 hours the accused persons are arrested in the crime. 25. From Exhibit 42, it is clear that Investigating Officer Rajesh Dudhalwar (PW20) was intending that Test Identification Parade should be through witness Smt.Shampa (PW2) alone since name of Devprasad (PW7) is not finding place in the said document. The prosecution has not filed any document on record to show that prior to holding of the Test Identification Parade any summons was given to Devprasad that he should remain present in the tahsil office at Saoner for identification purpose. Therefore, his presence for the purpose of the Test Identification Parade in the tahsil office at Saoner itself creates a doubt. It is altogether different that he may accompany his wife Smt.Shampa to the tahsil office at Saoner but there was no occasion for Naib Tahsildar Prakash Mahajan (PW17) to ask him to identify the culprits who were standing with dummies. 26. Perusal of the record creates a very serious doubt as to really the Test Identification Parade was held at tahsil office at Saoner on 25.5.2002 between 2:40 O'clock in the noon and 4:00 O'clock in the noon. 27. 26. Perusal of the record creates a very serious doubt as to really the Test Identification Parade was held at tahsil office at Saoner on 25.5.2002 between 2:40 O'clock in the noon and 4:00 O'clock in the noon. 27. File-D of the record consist of remand papers along with vakalatnamas, various applications for bail papers, summons warrant, and misc. applications. Running page No.10 of File-D is a remand paper dated 25.5.2002. By the said, Investigating Officer Rajesh Dudhalwar (PW20) sought police custody remand. The said remand paper dated 25.5.2002 shows both the accused were arrested on 25.5.2002 at 00:30 hours and various reasons were cited for police custody remand of the accused from 25.5.2002 to 8.6.2002. One of reasons in the said remand paper for claiming the police custody remand is at item No.7 and it recites as under: XXX XXX XXX For the Test Identification Parade, identification of the accused and also for obtaining finger prints for comparing the same with the finger prints found at the spot of the occurrence, learned Magistrate passed an order on 25.5.2002 and granted police custody remand, till 4.6.2002. It would be very useful to reproduce the remand order by learned Magistrate and the said is reproduced herein under: “O Accused produced before me on 25.5.2002 at 4:15 p.m. (emphasis is supplied). No complaint. I.O. present. Case diary seen. .........” From the order, it is clear that the accused persons were produced before learned Magistrate for claiming their police custody remand at 4:15 p.m. and one of reasons for the police custody remand was for holding Test Identification Parade. If that be so, no explanation is coming on record from the prosecution side as to how documents Exhibits 13 and 13-A recite time as 2:40 in noon and 4:00 in the noon. The aforesaid creates a doubt in the mind as to really the prosecution conducted the Test Identification Parade, as stated in documents Exhibits 13 and 13-A. 28. On 25.5.2002, at 00:30 hours, the accused were arrested in a cognizable office. The aforesaid creates a doubt in the mind as to really the prosecution conducted the Test Identification Parade, as stated in documents Exhibits 13 and 13-A. 28. On 25.5.2002, at 00:30 hours, the accused were arrested in a cognizable office. Section 57 of the Code of Criminal Procedure mandates that, “no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court”. In the present case, in connection with the commission of the cognizable offence, the Investigating Officer detained the accused persons after arresting them at 00:30 hours. Therefore, it was well within the right of the Investigating Officer to do all investigations within 24 hours of the arrest of the accused persons and if the Investigating Officer was of opinion that it would be impossible to complete the investigating without the presence of the accused persons, for authorization of their detention, the Investigating Officer was bound to move before learned Magistrate for extension of period as envisaged under Section 57 of the Code of Criminal Procedure. 29. How to conduct investigation, is a sole prerogative of the Investigating Officer. In his wisdom, he can take all necessary steps for fruitful investigation. One of such steps could be holding of Test Identification Parade. Documents Exhibits 13 and 13-A show that the said was done between 2:40 in the noon and 4:00 O'clock in the noon. Thus, well within first 24 hours of the arrest of the accused persons, the said part of investigation was done by the Investigating Officer. In that view of the matter since the Test Identification Parade was already over, there was no reason for the Investigating Officer to claim police custody remand for the reason of holding the Test Identification Parade. 30. In this case, it is also to be seen that whether the Test Identification Parade was held properly and how much weightage should be given to it 31. The Test Identification Parade was conducted by Naib Tahsildar Prakash Mahajan (PW17). 32. Instructions given by this Court for conducting Test Identification Parades are contained in paragraph No.61 of the Criminal Manual. In this case, it is also to be seen that whether the Test Identification Parade was held properly and how much weightage should be given to it 31. The Test Identification Parade was conducted by Naib Tahsildar Prakash Mahajan (PW17). 32. Instructions given by this Court for conducting Test Identification Parades are contained in paragraph No.61 of the Criminal Manual. The Division Bench of this Court in the case of Vilas Vasantrao Patil vs. The State of Maharashtra, reported at, (1996) CriLJ 1854 ruled that the instructions are not statutory but have been consistently followed to ensure a fair and unassailable identification parade. 33. In this context, clauses 7 and 21 of the said Criminal Manual under the head procedure for holding Test Identification Parades are relevant and those are reproduced herein under: “(vii) After the parade is arranged, one of the two respectable persons should be sent up to bring the accused from the lock-up. Care should be taken to see that when the accused is being brought from the lock up, the identifying witnesses do not have an opportunity of seeing him. They should be kept in quite a different room, out of sight of the lock-up. (xxi) The most important part of the memorandum will be the statements made by the identifying witnesses. These should be very carefully recorded, alongwith the questions asked to the identifying witnesses. (This recording need not be in the question and answer form). For example, an identifying witness may be asked if he is able to identify any one in the parade as the persons who fired the shot, and the identifying witness may point out the accused and may add that it was not the accused who actually fired, but that the accused was standing by the side of the man who had fired the shot. In that case, whatever the identifying witness states, should be carefully noted, as far as possible in his words (translated into English).” 34. In the above context, the Court will have to scrutinize evidence of Naib Tahsildar Prakash Mahajan (PW17) who conducted the Test Identification Parade. His evidence shows that after receipt of requisition (Exhibit 42), he directed the police to arrange more than 12 dummy candidates. He called two panchas. He asked both the accused persons to stand amongst the dummy candidates as per their wish. 35. His evidence shows that after receipt of requisition (Exhibit 42), he directed the police to arrange more than 12 dummy candidates. He called two panchas. He asked both the accused persons to stand amongst the dummy candidates as per their wish. 35. As per clause 7 of the Criminal Manual, before Identification Parade, identifying witnesses should not have an opportunity to see accused person. In this context, it would be useful to notice evidence of Devprasad (PW7). He stated on oath that after about one month of the incident, he was called in Saoner Tahsil for identification and he and his wife sat in the corridor, meaning thereby that they were not sitting in room. No evidence is brought on record by the prosecution which clears a doubt regarding not having an opportunity to them to see the accused persons when these two prosecution witnesses were sitting in the corridor. 36. In addition to that, Naib Tahsildar Prakash Mahajan (PW17), who conducted the Test Identification Parade, candidly stated that when the accused persons were brought to the Tahsil Office, that time the faces of the accused persons were not masked. On the contrary, he stated that they were uncovered. Thus, the faces of the accused persons were exposed to everybody before they were being taken inside the room where the Test Identification Parade took place. Further, Smt.Shampa (PW2) was already shown photographs of Shambabu, accused No.1 by the Investigating Officer during the course of the investigation. 37. Evidence of Naib Tahsildar Prakash Mahajan (PW17) shows that he has not followed clause No.21 of the Criminal Manual inasmuch as after holding of the Test Identification Parade, he has not recorded statements of Smt.Shampa (PW2) and Devprasad (PW7). 38. 37. Evidence of Naib Tahsildar Prakash Mahajan (PW17) shows that he has not followed clause No.21 of the Criminal Manual inasmuch as after holding of the Test Identification Parade, he has not recorded statements of Smt.Shampa (PW2) and Devprasad (PW7). 38. Thus, from the aforesaid, insofar as Test Identification Parade is concerned, following things emerge: (i) by giving requisition (Exhibit 42), the Investigating Officer asked to hold Test Identification Parade for identifying the accused by Smt.Shampa (PW2) alone; (ii) there is no document available on record to show that Devprasad (PW7) was asked to attend Saoner Tahsil Office for identifying the accused persons in the Test Identification Parade; (iii) in addition to that, Investigating Officer Rajesh Dudhalwar (PW20) is silent that even he orally directed Devprasad (PW7) that his presence is required at Saoner Tahsil Office to facilitate the Test Identification Parade; (iv) Smt.Shampa (PW2) and Devprasad (PW7) were sitting in corridor and there is no evidence that there was no opportunity for them to see the accused persons before they were taking inside the room where the Test Identification Parade took place; (v) when the accused persons were brought to Saoner Tahsil Office for their identification, at that time they were unmasked and their faces were uncovered; (vi) after completion of the Test Identification Parade, statements of the witnesses were not recorded by Naib Tahsildar Prakash Mahajan (PW17); and (vii) Smt.Shampa (PW2) was already shown photographs of Shambabu, accused No.1 by the Investigating Officer during the course of the investigation. 39. The Honourable Apex Court in paragraph No.9 in the case of Ravindra alias Ravi Bansi Gohar vs. State of Maharashtra cited supra observed as under: “Another disturbing feature of the case is that the TI parade was held inside the lock-up of the CID Department of the Bombay Police which was investigating into the case at the material time. 39. The Honourable Apex Court in paragraph No.9 in the case of Ravindra alias Ravi Bansi Gohar vs. State of Maharashtra cited supra observed as under: “Another disturbing feature of the case is that the TI parade was held inside the lock-up of the CID Department of the Bombay Police which was investigating into the case at the material time. In Hasib vs. State of Bihar, AIR 1972 SC 283 , this Court observed that a vital factor for determining the value of an identification parade is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. The above observations aptly apply in the facts of the instant case for not only the photographs of the appellants and other accused were shown before the TI parades, but they were held in the lock-up of the investigating agency thereby giving sufficient opportunity to the identifying witnesses of seeing the persons to be identified. Having regard to the fact that the above two identifying witnesses were police constables attached to the concerned police station, it was all the more necessary for the investigating agency to ensure that the TI parade was held in a manner and at a place (preferably in jail) so as to avoid any criticism about its legitimacy.” In my view, since the accused persons were brought to Saoner Tahsil Office unmasked, they were exposed to everybody to see them even prior to the Test Identification Parade. Therefore, the observations of the Honourable Apex Court cited supra is fully applicable to the present case. 40. In view of the aforesaid discussions, though in paragraph No.16 of the judgment and order impugned in the present appeals learned Judge of the Court below observed that there is a doubt about validity of the Test Identification Parade, on re-appreciation and reevaluation of the entire prosecution case, in respect of the Test Identification Parade, there is no slightest doubt in my mind to reject the entire exercise of the prosecution agency in respect of the Test Identification Parade by those two prosecution witnesses. IDENTIFICATION IN THE COURT : 41. IDENTIFICATION IN THE COURT : 41. By now, the law is well crystallized and settled that identification by the prosecution witnesses during the course of the Test Identification Parade is not a substantive piece of evidence. The said exercise is done only to ensure that the investigating agency is on the right track. Learned Additional Public Prosecutor was right in submitting that the identification by the witnesses in the Court during the course of the Trial is a substantive evidence and, in my view, he rightly relied upon an authoritative pronouncement of the Honourable Apex Court in the case of Malkhansingh and others vs. State of Madhya Pradesh, cited supra in that behalf. 42. The Honourable Apex Court in the case of Mohd.Abdul Hafeez vs. Sate of Andhra Pradesh, cited supra observed that where identification by witnesses of accused in the Court after 4 months of offence without the victim giving description of the accused in the first information report and no Test Identification Parade was held, conviction on such evidence is unsustainable. 43. The Honourable Apex Court in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra cited supra has ruled the same. 44. In the context of the law laid down in the aforesaid two cases, let us scrutinize evidence of Smt.Shampa (PW2) and Devprasad (PW7) on the point of identification in the Court. Smt.Shampa (PW2), after identifying the accused persons, states that Shambabu, accused No.1 was holding a revolver. In the oral report (Exhibit 12), she narrated as under: “...... a person wearing navy blue coloured full sleeves shirt and faded blue coloured jeans and who was of dark complexion, short heighted and slim and having beard and combed his hair backward inserted his revolver into my mouth.” Thus, in the First Information Report it was specifically reported by the first informant that person having dark complexion was holding a gun in his hand and he was short heighted person. However, in cross-examination, she agreed Shambabu is having fair complexion. In any case, she did not state Shambabu is having black complexion when she identified him in the Court. Further, from evidence of Devprasad (PW7) it is brought on record that height of Shambabu is about 5' feet 10” inches. Therefore, in any case, Shambabu, accused No.1 cannot be termed as a person having short height as claimed in the First Information Report. 45. Further, from evidence of Devprasad (PW7) it is brought on record that height of Shambabu is about 5' feet 10” inches. Therefore, in any case, Shambabu, accused No.1 cannot be termed as a person having short height as claimed in the First Information Report. 45. Further, the evidence of these two prosecution witnesses were recorded on 15.10.2003 and 16.10.2003 respectively about 11/2 year from the date of the incident on 24.4.2002. In the First Information Report or even from her substantive evidence, Smt.Shampa (PW2) never claims that she was able to identify the accused persons because of some special characteristics noticed on the persons of the accused. In that view of the matter, when there is variance of the description of Shambabu, accused No.1 in the First Information Report and from the witness box, it would be very hazardous on the part of the Court to record a finding that in this circumstance the Court is bound to give sanctity for the identification of the accused persons. Similar is the case in respect of Devprasad (PW7) is concerned. 46. It is true that Arundhati (PW10) identified the accused persons. According to the prosecution, the said girl was present at the time of the incident. She was at the time of the incident aged about 12 years. Though she was witnessed to the crime, for the reasons best known to the prosecution, during the course of the investigation, in the Test Identification Parade, the said witness was not produced by the prosecution to identify the accused persons. Her evidence is also recorded after 11/2 year from the date of the incident on 24.4.2002. 47. There is one more reason for not accepting the evidence of Smt.Shampa (PW2) and Arundhati (PW10). According to these two witnesses, the main door of the house was latched from inside. It is not brought on record that except that door there exists any other way for entry in the house. None of these two witnesses claims that they opened the door. The spot panchnama (Exhibit 10) does not show any signs that the door was broke open. In this backdrop, suggestion given to these two witnesses that they were not present in the house at the time of the incident assumes importance and their presence itself comes under cloud. None of these two witnesses claims that they opened the door. The spot panchnama (Exhibit 10) does not show any signs that the door was broke open. In this backdrop, suggestion given to these two witnesses that they were not present in the house at the time of the incident assumes importance and their presence itself comes under cloud. In such circumstances, the observations of the Honourable Apex Court in the case of Mohd.Abdul Hafeez vs. Sate of Andhra Pradesh, cited supra apply with its full force in respect of this prosecution witness. 48. Learned Additional Public Prosecutor heavily relies on evidence of Puranchand Agrawal (PW12) and Ramdas Agrawal (PW13) to the effect that these two prosecution witnesses have identified the two accused persons. Puranchand and Ramdas are owners of jeweller's shops situated at Agra. According to the prosecution, when Shambabu, accused No.1 was in police custody remand, on 28.5.2002 he gave his disclosure statement to the effect that he sold gold ornaments at Agra and, therefore, Investigating Officer Rajesh Dudhalwar (PW20) along with Shambabu and other staff members went to Agra. At the Agra, Shambabu led the police party to Goel Jewellers wherein Puranchand was present. As per the evidence of the Investigating Officer, Puranchand told him that he purchased the gold ornaments from Shambabu, melted those ornaments, prepared gold strips, and produced that gold bars before him and he seized those gold bars under seizure panchnama (Exhibit 30). Similarly, as per the evidence of the Investigating Officer, Shambabu led the police party to the shop of Ramdas Agrawal (PW13). He came to know from Ramdas that he purchased the gold ornaments from Shambabu, accused No.1 and, thereafter, he melted the same and prepared gold bars which were seized from him under seizure panchnama (Exhibit 32). 49. Learned Additional Public Prosecutor submitted that the seizure of the gold-bars from the shops of the aforesaid two prosecution witnesses and they identifying Shambabu, accused No.1 in the Court the person from whom they purchased the gold-bars is a corroborative piece of evidence. 50. I find myself unable to agree with the submission of learned Additional Public Prosecutor. If evidence of Puranchand Agrawal (PW12) and Ramdas Agrawal (PW13) are perused, evidence of Puranchand shows that about 11/2 year back one lady and three men had come to his shop and those persons wanted to sell gold ornaments to him. 50. I find myself unable to agree with the submission of learned Additional Public Prosecutor. If evidence of Puranchand Agrawal (PW12) and Ramdas Agrawal (PW13) are perused, evidence of Puranchand shows that about 11/2 year back one lady and three men had come to his shop and those persons wanted to sell gold ornaments to him. However, he was not ready to purchase those gold ornaments. One of men told him that all the articles belong to him were stolen away and there is a marriage of his sister and due to that he wanted to sell the ornaments. Evidence of Puranchand further reveals that since he was not ready to purchase the ornaments, they went away. After one hour, all of them came to his shop and they brought melted piece of the gold weighting 31 grams which he purchased at the price of Rs.17,000/-. Insofar as Ramdas (PW13) is concerned, his evidence also shows that Rajjan, accused No.2 along with two other came to his shop and told him that he wanted to sell ornaments of his wife. However, he shows reluctance to purchase the ornaments. Thereafter, he asked him firstly to melt the ornaments, bring pure gold, and then only he will purchase the same. After, half an hour, Rajjan again came to his shop. At that time, it was weighing 40 grams. He purchased that the said gold at price of Rs.21,000/- from Rajjan. 51. From the evidence of these two prosecution witnesses, it is clear that they are giving altogether different narrations as to how the gold strips came in their possession. As per the evidence of Investigating Officer Rajesh (PW20), when he visited their shops and seized the gold bars, at that time it was narrated by these prosecution witnesses that they purchased the gold ornaments and then melted and converted it into the gold bars. However, in the Court they are deposing exactly the opposite. In any case, the Investigating Officer was knowing that the gold seized from these two prosecution witnesses was stolen property in its original state. Therefore, it was very clear that these two persons were receiver of the stolen property which is punishable under section 411 of the Indian Penal Code. However, these two persons were not booked for the said offence by the Investigating Officer. Therefore, it was very clear that these two persons were receiver of the stolen property which is punishable under section 411 of the Indian Penal Code. However, these two persons were not booked for the said offence by the Investigating Officer. It is altogether different that whether the prosecution would have been successful in proving their guilt for the offence under Section 411 of the Indian Penal Code. However, they were not booked for the said offence. The said shows that the Investigating Officer showed some leniency in their favour by not registering the offence against them which clearly brings them under the thumb and dictate of the Investigating Officer. Therefore this Court is not ready to attach any importance to the identification of the accused persons by these two prosecution witnesses in the Court hall. 52. As noticed in the earlier part of this common judgment that in the first remand paper the Investigating officer claimed police custody of the accused persons for obtaining their fingers' prints because according to the said remand paper fingers' prints were found on the spot at the time of the investigation. When the police custody remand was granted, the Investigating Officer must have taken all steps for obtaining their fingers' prints for comparing the fingers' prints taken from the spot of the incident. However, the prosecution case is totally silent about the said aspect. Therefore, that circumstance, in my considered view, goes in favour of the accused persons. 53. The re-appreciation and the reevaluation of the entire prosecution case and conspectus of all the aforesaid discussions made in this common judgment leads me to pass following order: ORDER : (i) The criminal appeals are allowed. (ii) The judgment and order of conviction dated 24.3.2004 passed by 1st Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.572/2002 is hereby quashed and set aside. (iii) Both appellants are acquitted of the offence under Section 392 of the Indian Penal Code. (iv) The appellants are on bail. Their Bail Bonds stand cancelled.