Judgment Ram Naresh Thakur, J. 1. Both the appeals arise out of the same judgment and the same occurrence, therefore, they have been heard together and they are being disposed of by this common judgment. 2. Both the appellants have been convicted under Sec.395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years each. 3. A dacoity took place in the house of the Informant in the night of 6/7th June, 1972. There were about 14 to 15 dacoits, They forcibly entered into his house and looted away the properties. After loot the dacoits fled away. The villagers, who had assembled, chased the dacoits. it is said that appellant Tuntun Paswan was arrested in a chour and there-alter he was taken to the Police station where a case was lodged next morning at 9 A.M. In course of investigation, Tilo Sada appellant of or cr. Appeal No. 648/83 was arrested and was put on Test Identification Parade where he was identified by two witnesses. After completing investigation, charge-sheet was submitted against these two appellants as well as two other accused persons. Ultimately, these appellants were put on trial where 15 witnesses were examined on behalf of the prosecution. The appellants denied the allegations and pleaded their innocence. Appellant Tuntun Paswan pleaded that he was arrested from his field, Tilo Sada also pleaded that he has been implicated due to enmity. 4. After considering the entire evidence, the learned trying Court convicted these two appellants under Sec.295 of the Indian Penal Code and sentenced them, as stated above but acquitted the other two accused persons. 5. Learned Counsels appearing for the appellants have argued that there is evidence whatsoever to connect these two appellants with the crime in question. No witness has stated that these two appellants were identified while committing dacoity. 6. There is sufficient evidence on the record to come to the conclusion that a dacoity did take place in the house of the Informant in the night as alleged by the prosecution. Besides the oral witness, there is the evidence of the Investigating Officer which corroborates the evidence of eye witnesses. The factum of dacoity has also not been disputed or challenged by the learned Counsel appearing for the appellants. Besides the oral witness, there is the evidence of the Investigating Officer which corroborates the evidence of eye witnesses. The factum of dacoity has also not been disputed or challenged by the learned Counsel appearing for the appellants. Therefore, I find and hold that the dacoity did take place in the house of the Informant in the eight as alleged by the prosecution. 7. Now question remains to be considered whether these two appellants participated in the dacoity. Now at first instance, I take up the case of appellant Tuntun Paswan. It is said that he was arrested when he was running away. Out of 15 witnesses P. W. 1 has said about the dacoity. He is one of the victims of the dacoity. He has said "Jab Tuntun Paswan Pakra Gaya to mai bhi wahan pahuoh gaya." In cross-examination he says that Dafadar and Chowkidar had arrested Tuntun Paswan in Pir Nagar. P. W. 2 is the Dafadar. He was giving round. On hearing hulla of dacoity, he ran towards that direction and he alongwith chowkidar arrested Tuntun Paswan. He says in paragraph 4 that Tuntun was arrested in the west of village Pir Nagar and at the time of arrest he was alone. P. W. 3 is Chowkidar. While he was on patrolling he heard hulla of dacoity. He ran towards the direction and he saw that Tuntun was being surrounded by the villagers. He arrested him. P. W. 4 is Ram Ratan Chowdhary. His eye was covered with Towel and he was asked by the dacoits to remain quite. He also chased the dacoits. According to him Tuntun Paswan was arrested and he was taken to the Police Station. P.W. 5 is a lady. She had identified her ornaments. P. W. 6 is Kalicharan Mahto. He is a witness of search. P. W. 7 has been tendered. P. W. 8 was also one of the chasers and he also says that Tuntun Paswan was arrested on being chased. At the place where Tuntun was arrested there were 30 to 32 persons of the village of Tuntun Paswan. P. W. 9 is also one of the chasers. He also speaks that Tuntun was arresred. According to him Tuntun is a resident of village Pir Nagar. P. W. 10 has been tendered. P. W. 11 is also one of the chasers. P. W. 9 is also one of the chasers. He also speaks that Tuntun was arresred. According to him Tuntun is a resident of village Pir Nagar. P. W. 10 has been tendered. P. W. 11 is also one of the chasers. According to him Tuntun Paswan was arrested in Bheriai Chaur. P. W. 12 is the Magistrate, who conducted the Test Identification Parade. P.W. 13 is the Registrar, who conducted the Test Identification Parade of the articles. P. W. 14 is the Police Officer and P. W. 15 one of the Investigating Officers. 8. From the perusal of the evidence, it will appear that witnesses have said that Tuntun was arrested by the Dafadar and the Chowkidar, but not a single witness has claimed to identify him at the time of dacoity. There is no evidence to show that this appellant participated in the dacoity. Of course there is evidence that when the dacoits took to their heels, the villagers chased and this appellant was arrested as stated above. It has come in evidence that when this appellant was arrested he was alone. No doubt his arrest creates strong suspicion, but in a criminal trial the suspicion, however, strong it may be. it cannot take place of proof. For conviction under Sec.395 of the Indian Penal Code, it has to be proved beyond all reasonable doubts that the accused committed dacoity. But in this case unfortunately, as stated, no witness has said that this appellant was identified by any one while committing dacoity or taking away the articles. No body has said that he saw this appellant coming out of the fateful house. In that view of the matter, it will not be proper to maintain his conviction under Sec.395 of the Indian Penal Code as no body has said that he (Tuntun Paswan) had participated in the dacoity. 9. As regards appellant Tilo Sada is concerned, he has been identified in the trial court by P. Ws. 1 and 4, but unfortunately none of these two witnesses has said that this appellant was identified by them at the time of commiting dacoity. They have simply said that they identified this appellant in the Test Identification Parade. 9. As regards appellant Tilo Sada is concerned, he has been identified in the trial court by P. Ws. 1 and 4, but unfortunately none of these two witnesses has said that this appellant was identified by them at the time of commiting dacoity. They have simply said that they identified this appellant in the Test Identification Parade. For conviction under Sec.396 of the Indian Penal Code, it is essential to be proved that the accused was identified while committing dacoity or while taking away the looted articles but unfortunately in this case both these identifying witnesses have simply said in court that they identified this appellant in Court. Of course these two witnesses had also identified in the Test identification Parade, as will be evidenced from the evidence of P.W. 12 but this in itself will not be sufficient for maintaining the conviction under Sec.395 of the Indian Penal Code. 10. The learned counsel appearing for the State has said that P.W. 12 has stated that these two witnesses identified him at the time of dacoity but this statement is made by P.W. 12, who is not an eye witness of the occurrence and that statement cannot be admissible in evidence until and unless P.Ws. 12 and 4 would have stated in Court that they identified this appellant while committing dacoity. Therefore, the conviction also cannot be sustained. 11. For the reasons stated above, both the appellants are entitled to get benefit of doubt. Accordingly, both the appeals are allowed and the order of conviction and sentence passed against these two appellants is set aside and they are discharged from the liabilities of their bail bonds.