Judgment 1. The appellant on the record has been named as Rajawa Kebat alias Rajendra Mandal son of Late Mushahru Mandal alias Mishilal Mandal, resident of village Jai Rampur, police station Murliganj, district Mahipura. He is the sole appellant. He has been convicted of the charge under S.396 of the Indian Penal Code (in short the Code) for having committed dacoity in the house of Sushil Kumar Singh (P.W.5) along with 10-12 persons. The dacoity was committed in between the night of 13/14th May, 1978 at village Rupauli Hatia Tola, Police station Banmankhi in the district of purnia. In course of commission of dacoity two persons are said to have been killed one was Mohan Mahto, servant of Sushil Kumar Singh (P.W.5) and other was Upendra Mahto. 2. The prosecution case in short is that all of a sudden in the midnight a few dacoits broke open the door of the house of the informant (P.W.5) entered inside the room and demanded the cash and ornaments. They ransacked the whole house and looted away properties worth several thousands. The details of the articles looted away have been given in the F.I.R. The case is that some of the dacoits tied the hands of Shiva Nath Singh (P.W.2) who was sleeping in the Verandah of the house and some other dacoits opened fire causing injury to Mohan Mahto. The informants brother (PW.6) also sustained injuries by the gun shot fired by some of the dacoits. There was hue and cry and Hulla was raised and the dacoits while retreating suddenly fired on Upendra Mahto son of Badri Mahto (P.W.3) at a place about a mile away from the house of the informant. 3. Sushil Kumar Singh, the informant, (P.W.5) rushed to Banmankhi police station where he lodged the information. The police drew up the F.I.R. (Ext.3) and took up the investigation of the case. Mohan Mahto who was seriously injured was removed to hospital but he too ultimately died. The dead body was sent for post-mortem examination. Dr. A.K.Choudhary(P.W.9) had conducted postmortem examination. Earlier in the hospital he was treated by some other doctor namely Dr. K.P. Modi but Dr. Modi has not been examined in court. Mohan Mahto who was seriously injured was removed to hospital but he too ultimately died. The dead body was sent for post-mortem examination. Dr. A.K.Choudhary(P.W.9) had conducted postmortem examination. Earlier in the hospital he was treated by some other doctor namely Dr. K.P. Modi but Dr. Modi has not been examined in court. The doctor A.K. Choudhary (P.W.9) has stated that on the dissection of the body he could recover 4 pellets from the abdominal cavity and this injury was the cause of death, we could not get from the records regarding any post-mortem over the dead body of another deceased Upendra Mahto. The appellant was arrested on 15-10-1978 about 5 months after the incident and he was put on test identification parade on 20-12-1978. The informant (P.W.6) had identified this appellant as one among the dacoits who committed dacoity in his house. The police after completing investigation submitted charge-sheet and the appellant was thus put on trial. 4. In fact the charge-sheet was submitted against 10 accused persons including the present appellant and the police showed nine of them as absconders. It is not yet clear to us what happened to the case of other nine accused as the case of the appellant alone was committed to the court of session for trial. The prosecution examined 10 witnesses in all to substantiate the charge of dacoity and murder against this appellant, but it is important to note that P.W.5 is the solitary witness who claimed to have identified this appellant as one among the dacoits. His evidence alone deserves importance to be commented upon coupled with the statement of Md. Sagir Ansari (P.W.1), Munsif Magistrate, who conducted T.I. Parade. T.I. chart is Ext.1. 5. We need not discuss the evidence of other witnesses because the learned counsel either for the appellant or for the respondent also did not refer to the evidence of any other witnesses except that of P.W.5 and the Magistrate (P.W.1) who conducted the T.I. Parade. The investigating officer of the case has also not been examined. Non-examination of the investigating officer is a serious lacunae. We do not find any adequate explanation for non-production of this witness in court. Even the case diary has not been proved on the record and in the circumstance it has been rightly urged that serious prejudice has been caused to the appellant. 6. Non-examination of the investigating officer is a serious lacunae. We do not find any adequate explanation for non-production of this witness in court. Even the case diary has not been proved on the record and in the circumstance it has been rightly urged that serious prejudice has been caused to the appellant. 6. We are left with the solitary evidence of P.W.5, Sushil Kumar Singh, the informant, of this case. His evidence is that he was sleeping with his wife in his room. His wife is Geeta Singh (P.W.4). She did not identify this appellant nor other inmates of the house identified him. Admittedly T.I. parade was conducted merely two months after the date of the arrest of the appellant. At the T.I. parade this witness P.W.5 identified not only the appellant but one more accused named Sugan Choudhary. Accused Sugan Choudhary is not before us. He was not put on trial. 7. The trial court in the judgment impugned has observed as follows : - "On the broad principles that there can be conviction on the uncorroborated testimony of one person in a case of dacoity, there can hardly be any dispute. However, after careful scrutiny if there is the slightest hesitation in the mind of the court that there is possibility of mistaken identification or that the statement of the sole witness was influenced by some other cause, the accused, is entitled to the benefit of a reasonable doubt." Judging the case of the appellant on the anvil as indicated by the trial Court itself, we feel no hesitation in stating here that the statement of the informant (P.W.5) is totally weak, full of doubts to uphold the conviction on the charge under S. 396 of the Code. Ext.3 is the F.I.R. of the case lodged by the informant (P.W.5). He has mentioned in the F.I.R. that he could get the name of three accused from his servant deceased Mohan Mahto. One of the names given by him is Rajendra Choudhary. He has said in the F.I.R. that he has doubts regarding the complicity of Rajendra Choudhary in the commission of dacoity. It has also come in evidence that among the accused there was a woman named Geeta Devi. She raided the house along with Rajendra Choudhary and others. One of the names given by him is Rajendra Choudhary. He has said in the F.I.R. that he has doubts regarding the complicity of Rajendra Choudhary in the commission of dacoity. It has also come in evidence that among the accused there was a woman named Geeta Devi. She raided the house along with Rajendra Choudhary and others. If there was light and if P.W.5 could see the invaders or the accused persons he, at least, could not have missed to name Geeta Devi as she was the only woman accused belonging to his own village. But he did not name her. This gives an impression in the mind of the court that there was darkness in the room and the inmates failed to identify correctly the accused committing dacoity. It may be relevant to mention here that all the aforesaid facts have been totally omitted by P.W.5 in his statement in court. He did not state in court that the deceased Mohan Mahto could give name of the accused committing dacoity. A confusion has arisen with regard to the correctness of the name of Rajendara Choudhary, as shown above the accused. On trial before us is Rajawa Kebat alias Rajendra Mandal son of late Mushabru Maiidal alias Mishilal Mandal. The trial court in the very opening sentence of its judgment has stated that the sole accused Rajawa Kebat alias Rajendra Mandal is son of Sitaram Mandal. 8 In order to ascertain the identity of this accused, appellant before us we will look to the statement made by the accused under S.313, Cr.P.C. Here he has given his name as Rajendra Mandal alias Rajawa and not Kebat and has given his fathers name as Mushahru Manual alias Mishilal Mandal. We have already seen that the name of one Rajendra Choudhary transpired through the statement of P.W.5 which he gave in his F.I.R. (Ext.3). Geeta Singh (P.W.4) has said that her servant the deceased Mohan Mahto, gave out the names of the accused and those were Rajendra, Geeta Devi and Sugan. It is pertinent to note that the deceased gave out the name only as Rajendra and not Rajawa Kebat or Rajendra Mandal or Rajendra Choudhary. There was one Rajendra. Admittedly that Rajendra was known to the deceased Mohan. It is pertinent to note that the deceased gave out the name only as Rajendra and not Rajawa Kebat or Rajendra Mandal or Rajendra Choudhary. There was one Rajendra. Admittedly that Rajendra was known to the deceased Mohan. Therefore, it is difficult to presume that the deceased meant this Rajendra, the appellant, who has described his name as Rajendra Mandal alias Rajawa Kebat. 9. As discussed above, we have said that the informant had some suspicion against Rajendra Choudhary and that Rajendra Choudhary might be the man named by the deceased Mohan, who described the accused only by short name stating Rajendra, the paramour of Geeta Devi (not Geeta Singh, P.W.4 the wife of the informant). In view of the aforesaid confusing circumstance it is difficult to accept the statement of the informant (P.W.5) who identified the accused long 7 months after the occurrence and at least 2 months after the arrest at a T.I. parade held on 20-12-1978. The informant could not clearly spell out the means of identification. It has been discussed above that the confusion was created and wrong identification was made in court because of the darkness when the dacoity was committed. P. W.5 as well as the other witnesses have admitted that the night was dark. The trial court has also observed in the judgment impugned that it was not specifically stated by P.W.5 that in what light he identified the accused persons. 10. The trial court in examining the accused under S.313, Cr.P.C. asked him that from the evidence it appears that he killed Mohan Mahto. The charge is otherwise. The charge is that Mohan Mahto was killed in course of dacoity. There is no evidence that this appellant Rajendra Maridal killed Mohan Mahto, We are stating this once again to clarify the fact that according to the informant P.W. 5 Mohan Mahto identified the accused and he named one Rajendra as an accused. In absence of any such specific evidence it cannot be held that this Rajendra opened fire on Mohan Mahto and in absence of which the identification of this appellant becomes all the more doubtful, and picking up this appellant as one of the accused at the T.I. parade by P.W. 5 does not bring any improvement in the prosecution story. 11. There, the case of the prosecution fails. This appeal succeeds. The appellant is acquitted of the charge. 11. There, the case of the prosecution fails. This appeal succeeds. The appellant is acquitted of the charge. He may be released from jail custody forthwith, if not wanted in any other case. In the end we only observe that generally the police officers are keeping themselves away from the court. The officer-in-charge or the investigating officer who conducted the case should invariably attend the trial and give evidence. The failure on their part in giving evidence is a serious lapse in duty and at the same time it is the bounden duty of the prosecution to take all possible steps to secure their attendance. This is one of those cases in which prejudice seems to have been caused to the accused. Question could have been put to the I..O. and answer elicited on the line of the investigation which he conducted in charge-sheeting this appellant when confusion had arisen regarding his identity and involvement in the case. It is expected that in cases henceforth the prosecution will be more alert and careful in conducting the case.