J. N. HORE, J. ( 1 ) FOR committing dacoity with murder Jumman Au Mondal, the appellant before us, was convicted by a learned Additional Sessions Judge, 24-Parganas under section 396, Indian Penal Code and sentenced to Imprisonment for life and a fine of Rs. 2,000. 00 in default, rigorous imprisonment for a further period of 2 years. The appellant seeks to assail the said order of conviction and sentence in this appeal. ( 2 ) THE prosecution case in short was that on 19/1/1980 between 7. 00 P. M. and 7. 30 P. M. , 7/8 persons armed with gun, lathi, tangi etc. raided the house of Mollah Tasmatulla (the deceased) at village Rajapur, P. S. Hasnabad, District 24-Parganas fired at him and otherwise severely injured him causing his death almost instantaneously, looted cash, gold ornaments and one D B. B. I. gun bearing No. 102711 and decamped with the booty, S. I. Gouranga Mitra (P. W. 30), the then officer- in-charge Hasnabad P. S, on receipt of a wireless message from Basirhat P 5. that a dacoity had been committed at village Murarisa proceeded towards that village with force at 7. 35 P M. He received information at Murarisa at 7. 50 P. M. that a dacoity with murder had been committed in the house of Mollah Tasmatulla at village Rajapur. He reached the house of the deceased at 8. 00 P. M. and saw the dead body of Mollah Tasmatulla, lying in a pool of blood in a room on the ground floor. He took up investigation on the basis of the information lodged by Sahara Banu (P. W 24), wife of the deceased. After completion of investigation, police submitted charge-sheet against the appellant and another and in usual course, the case was committed to the Court of Session. In defence, the appellant pleaded innocence alleging that the deceased who was an important leader of the Congress (I) and an M. LA. was murdered by his political rivals and that the appellant was falsely implicated In order to screen the real offenders belonging to the ruling party. ( 3 ) THE charge as framed suffers from a serious infirmity. The charge under section 396, Indian Penal Code was framed against two persons only the appellant and one Abdul Jalil Sk. was murdered by his political rivals and that the appellant was falsely implicated In order to screen the real offenders belonging to the ruling party. ( 3 ) THE charge as framed suffers from a serious infirmity. The charge under section 396, Indian Penal Code was framed against two persons only the appellant and one Abdul Jalil Sk. Though 7/8 persons were alleged to have participated in the dacoity the charge as framed does not refer to any other person besides the two accused persons to have been concerned with the occurrence. The conviction of the appellant under section 396, Indian Penal Code is, therefore, illegal and unsustainable. This view is supported by the decision of the Supreme Court in Ram Sankar Singh and others v. State of Uttar Pradesh reported in that case, 6 persons were placed on trial under the charge that they had committed dacoity though 14/16 persons were said to have participated in the dacoity. The charge like the present one did not refer to any other person besides the six accused to have been concerned with the occurrence. The Sessions Judge convicted all the six under section 395, Indian Penal Code. On appeal, the High Court acquitted three of them and upheld the conviction of the remaining three under section 395, Indian Penal Code. The Supreme Court held that the conviction of the three remaining accused persons under section 395. Indian Penal Code on the charge as framed was improper. The three remaining accused persons could be convicted of the lesser offence of robbery under section 392 Indian Penal Code if there was evidence to show that they had committed act of theft and used violence while committing the theft. In such a situation their individual acts in connection with the alleged occurrence had to be considered. The evidence led on behalf of the prosecution has not sought to bring home to each individual accused the part played by him. The Supreme Court was of opinion that the circumstances of the case did not justify ordering a retrial on an amended charge. The evidence led on behalf of the prosecution has not sought to bring home to each individual accused the part played by him. The Supreme Court was of opinion that the circumstances of the case did not justify ordering a retrial on an amended charge. The Supreme Court observed that if the evidence against the appellants were above serious criticism, and that was by no means the case as had already been indicated there would have been no hesitation in ordering a retrial but having regard to the circumstances of the case, the Supreme Court did not think that such a course should be taken in the interest of justice. The appeal was accordingly allowed and the conviction was set aside. ( 4 ) WE would have had no hesitation in ordering a retrial on an amended charge had the evidence against the appellant been above serious criticism. The factum of dacoity and the murder of the deceased in course of the dacoity are not disputed before us and are well established by the evidence of eye-witnesses (P. Ws. 1, 5, 8, 13 and 24) and post-occurrence witnesses (P. Ws. 2, 4, 6, 7, 9 and 30) and seizure of the broken butt of a gun from a field near the homestead of the deceased (Ext. 5), the seizure of the D. B. B. I. gun of the deceased bearing No. 102711 on 22. 5. 80 near the thatched hut of Nektar Ali Mollah and the seizure of the stolen coat of the deceased (Ext. 4) and the evidence of the autopsy surgeon (P. W. 22) who found a gaping wound on the posterior aspect of the lower 1/3rd of the left thigh multiple punctured wounds on the right knee joint and lower 1/3rd of the right thigh and fracture of the lower 1/3rd of the right femur of the deceased and his opinion that the death was due to shock and haemorrhage as a result of the injuries which were antemortem and homicidal in nature and sufficient to cause death in the ordinary course of nature. The evidence of participation of the appellant in the occurrence is however, not above serious criticism. The only evidence against the appellant is the evidence of identification of P. W. 8 Moinur Mollah, son of the deceased and P. W. 13 Irani Begum. The evidence of participation of the appellant in the occurrence is however, not above serious criticism. The only evidence against the appellant is the evidence of identification of P. W. 8 Moinur Mollah, son of the deceased and P. W. 13 Irani Begum. Daughter-in-law of the deceased and wife of P. W. 4 Fafikul Islam. Their evidence of identification as we shall presently see suffers from serious infirmities and improbabilities and cannot be safely relied on. The order of retrial on a proper charge would, therefore be an abuse of the process of law and not in the interest of justice. ( 5 ) P. W. 13 Irani Begum identified the appellant in court as the person who killed the deceased by opening fire from a gun. She also identified him in the T. I. parade held on 22. 4. 80. According to her evidence she was cooking meals in the kitchen when the occurrence took place. She heard sound of a gun shot and the scream of her father-in-law (the deceased ). She came out of the kitchen and rushed near the staircase and saw some dacoits beating her father-in-law. The dacoits assaulted him with the butt of a gun, tangi and knife. The witness tried to save him but one of the dacoits caught her by the hair awl threw her out of the room and she fell down on the ground. She became unconscious. About half an hour after she regained consciousness and saw her father-inlaw lying in a pool of blood she noticed that the vein of his left leg was cut. There was load shedding at the time of the occurrence but a hurricane lantern was burning. ( 6 ) UPON a careful scrutiny, her evidence of identification cannot be accepted as true and reliable. The testimony of D. W. 1 A S. 1. Kalidas Bose and the lock-up register of Basirhat court (Ext. B) shows that the appellant was produced in court on 22. 4. 80, the date fixed for T. I. Parade, in connection with another case T. I. parade was held on that date at Basirhat Sub-Jail at 4. 15 P. M. The evidence of D. W. I shows that prisoners are normally despatched to the jail between 4 and 5 P. M. The cross-examination of P. W. 8. 4. 80, the date fixed for T. I. Parade, in connection with another case T. I. parade was held on that date at Basirhat Sub-Jail at 4. 15 P. M. The evidence of D. W. I shows that prisoners are normally despatched to the jail between 4 and 5 P. M. The cross-examination of P. W. 8. Moinur Mollah reveals that the witnesses to T. I. parade attended court as per instruction of Police on 224 80 and therefrom proceeded to the Basirhat Sub- Jail to attend the T. I. parade. The possibility of the appellant being shown to P. Ws. 8 and 13 in court cannot therefore be ruled out. ( 7 ) THE evidence of P. W. 21 Shri Sabhyasachi Banerjee, the learned Judicial Magistrate who held T. I. parade, reveals some serious infirmities in holding T. I. parade. His evidence shown that the identification, was aided by questions put by the learned Magistrate to the identifying witnesses. Moreover, the evidence does not show that the suspects were mixed up with the requisite number of under-trial prisoners. P. W. 21 states that the suspects were mixed up with some under-trial prisoners. He cannot give the number nor the number of the under-trial prisoners with whom the suspects were mixed up, has been noted in the memorandum of T. I. parade. The two suspects ought to have been mixed up with at least 20 under trial prisoners but the evidence of the learned Magistrate who held the T. I. parade does not show that this was done. ( 8 ) THE defence suggestion is that P. W. 13 Irani Begum was not present in the house of the deceased when the occurrence took place. This suggestion, though denied by Irani Begum, receives support from some facts and circumstances. The evidence of P. W. 5 Moinur Mollah is that at the time of occurrence their family consisted of his parents, his 3 brothers, one Mahinder and himself. He, therefore, specifically excludes the presence of P. W. 13. P. W. 13 has stated in the cross-examination that she was very sick at the time of occurrence and that her father's house in the same locality where her father-in-laws house is situated. She is unable to say if police visited their house on the date of occurrence. He, therefore, specifically excludes the presence of P. W. 13. P. W. 13 has stated in the cross-examination that she was very sick at the time of occurrence and that her father's house in the same locality where her father-in-laws house is situated. She is unable to say if police visited their house on the date of occurrence. The evidence of P. W. 30, shows that he reached the house of the deceased shortly after the occurrence and remained there throughout the whole night. The witness remained unconscious for half an hour only. It is improbable that she would be unware of the presence of police on that night, had she been present in the house. It is also significant that she was not examined by P. W. 13 on the night of 19/1/1980 or even on 20/1/1980. She was examined on 21/1/1980. P. W. 30 has stated that he could not examine her on 19/1/1980 and 20/1/1980 because she was grief stricken. The cross-examination, reveals that there is no such note in the case diary and the witness has deposed from memory. The evidence of P. W. 13 shows that she did not meet P. W. 30 before she was examined on 21/1/1980. It is doubtful whether P. W. 13 was present in the house of the deceased at the time of the occurrence. ( 9 ) P. W. 13 did not state to the police that she was cooking meals in the kitchen at the time of the occurrence P. W. 5 Md. Boni Amin Gazi, nephew of the deceased, took shelter in the kitchen when the dacoits raided the house and he saw from the kitchen and through a window the dacoits assaulting his maternal uncle. He does not speak about the presence of P. W. 13 in the kitchen. It transpires from his cross-examination that the kitchen was dark. The darkness of the kitchen improbabilises the story that P. W. 13 was cooking meals in the kitchen at that time. ( 10 ) P. W. 13 disclosed neither to the inmates nor to the police that she saw the miscreants and would be able to identify them particularly the person who fired at her father-in-law from a gun. The darkness of the kitchen improbabilises the story that P. W. 13 was cooking meals in the kitchen at that time. ( 10 ) P. W. 13 disclosed neither to the inmates nor to the police that she saw the miscreants and would be able to identify them particularly the person who fired at her father-in-law from a gun. ( 11 ) THE story that P. W. 13, an unarmed sick young woman, tried to resist the dacoits armed with gun and other deadly weapons appears to be highly improbable. ( 12 ) ACCORDING to P. W. 13 there was load shedding at the time of occurrence but a hurricane lantern was burning at the place of occurrence and an old hurricane lantern and broken pieces of chimney were seized by a seizure list (Ex. 2 ). The broken hurricane is Mat. Ext. IV. It appears that the chimney of the hurricane was smashed by the dacoits. P. W. 8 does not speak of a burning hurricane lantern. He saw the miscreants beating his father in the light of electric torches of the dacoits. P W. 8 appears to have arrived at the place of occurrence earlier than P. W. 13. According to P. W. 13 she rushed to the place of occurrence after hearing the sound of the first gun shot. The evidence of P. W. 8 discloses that the miscreants had fired twice from the gun after his arrival. The evidence of P. W. 8 shows that the hurricane lantern was not burning at the material time and it falsifies the evidence of P. W. 13 that she saw the appellant in the light of a burning hurricane lantern. ( 13 ) P. W. 8 does not speak of the presence of P. W. 18 nor P. W. 13 speak of the presence of P W. 8 though both of them claim to have witnessed the material part of the incident of assault. ( 14 ) ACCORDING to P. W. 13 as soon as she rushed to the spot and tried to save her father-in-law, one of the miscreants caught her by the hair and threw her outside and she fell down unconscious. She regained consciousness half an hour after when the miscreants had already left. ( 14 ) ACCORDING to P. W. 13 as soon as she rushed to the spot and tried to save her father-in-law, one of the miscreants caught her by the hair and threw her outside and she fell down unconscious. She regained consciousness half an hour after when the miscreants had already left. Her evidence clearly shows that she had no sufficient time and opportunity to observed minutely the features of the miscreants so as to retain a clear image to enable her to identify the miscreants correctly in the T. I. parade, held three months after the occurrence. ( 15 ) THE evidence of identification of P. W. 8 Minur Mollah is not also above serious criticism. At the material time, he was a young boy aged about 13 years. His testimony is that at the time of occurrence he was outside the house. Being attracted by an alarm, he entered into the house and saw 4/5 persons assaulting his father. Seeing this, he became frightened, and hid himself near the window and thereafter he heard sounds of two gun shots The miscreants were holding electric torches and flashed the torches when they were beating his father with lathi and muzzle of a gun. The dacoits thereafter attacked him and one of them landed a first blow on his face and he ran away for fear of life. He narrated the incident to the people who had collected outside the house but none dared come forward to the rescue of his father. Later he came back home and saw his father lying dead in a pool of blood. He identified the appellant in court as the person who killed his father and gave him a fist blow on the face. He also correctly identified him in the T. I. parade. ( 16 ) WE have already pointed out the infirmities of the T. I. parade and the possibility of the appellant being shown to the witnesses in court. The evidence of this witness shows that he became frightened seeing the miscreants assaulting his father and took shelter under a cover near the window of a room. He ran away for fear of life when a miscreant gave him a fist blow. He saw the miscreants in the occasional flashes of electric torches. The evidence of this witness shows that he became frightened seeing the miscreants assaulting his father and took shelter under a cover near the window of a room. He ran away for fear of life when a miscreant gave him a fist blow. He saw the miscreants in the occasional flashes of electric torches. He had no time and opportunity to observe the features of the miscreants clearly for any length of time. He had merely momentary glimpses of the miscreants before he fled away for his own safety. In these circumstances it appears to be improbable that he could retain clear images of the miscreants so as to enable him to identify correctly in the T. I. parade after a lapse of three months. ( 17 ) FOR the foregoing reasons we are not inclined to place reliance upon the evidence of identification of P. Ws. 8 and 13. In the absence of any other evidence we, therefore allow the appeal, set aside the impugned order of conviction and sentence and direct that the appellant be forthwith set at liberty, if not wanted in connection with any other case. .