Judgment PRASUN KUMAR DEB and SURINDER SARUP JJ. 1. It is a case of bank robbery wherein the Bank Manager of Barkela Gramin Bank was killed during the course of robbery by the assailants. 2. In total five persons includ ing the appellants have faced trial jointly in Sessions Trial No. 295 of 1989 and Sessions Trial No. 4 of 1990 before the 2nd Additional Sessions Judge, Chaibasa. Appellants above named have been charged under Sections 394, 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years under Section 394 of the Indian Penal Code and to pay a fine of Rs. 4,000 each and in default thereof, to undergo further rigorous imprisonment for one year each. Further each of the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The appellant Udai Banra has already been convicted under Section 394 of the Indian Penal Code, so he cannot be convicted simultaneously for the charge under Section 411 of the Indian Penal Code and, therefore, he is acquitted of that charge. Since the charges against the accused Pandit alias Pradeep Hembram and Dilip Kumar Balmuchu have not been proved, they have been acquitted by the learned 2nd Additional Sessions Judge, Chaibasa. However, the sentences passed against the accused-appellants above-named have been ordered to run concurrently. 3. The fact of the case runs as follow : On 20-7-1988 at about 2.45 p.m. when Barkela Gramin Bank was having office hours then four persons entered into the Bank and asked the Manager that they have some conversation with the Bank authorities. At the time of such entry of the four robbers into the Bank, Bank Peon PW 2 Ransi Boipai and Surrendra Boipai, PW 1, Manki of Village Barkela were present in the Bank and in the Bank Managers room, the Bank Manager Digamber Singh Deo was asked by the robbers to part with the key of the Chest where the Banks money was stored. He was asked so on the point of country-made pistol. The Bank Manager out of fear made over the key and then one of the robbers tried to open the chest but being unable to do it, he asked PW 2 to open the Chest and then all the cash within the Chest amounting to Rs. He was asked so on the point of country-made pistol. The Bank Manager out of fear made over the key and then one of the robbers tried to open the chest but being unable to do it, he asked PW 2 to open the Chest and then all the cash within the Chest amounting to Rs. 3,000 were taken away by the robbers. The assailants also threatened PWs 1 and 2 not to raise alarm and they including the Bank Manager were made to undress themselves and keep standing by wearing Underwear and Ganji alone. After the robbery was completed, three of the assailants left the bank but one of them after asking address of the Bank Manager shot him by the country-made pistol, as a result of which, he fell down and died almost instantaneously, on receipt of gun shot injury at the abdomen. It is further alleged that the robbers came to the Bank on Yezdi Motor-cycle and after commission of the robbery, they left in the same Motor-cycle. Soon after the occurrence, PW 1 Surindra Boipoi reported the incident to nearby Police Station i.e. Muffasil Chaibasa Police Station. On the basis of that information, a Sanha entry was made by the Officer-in-charge and then he left for the place of occurrence. There he found that articles in the Bank were in scattered position and the Bank Manager was lying dead in the pool of blood. 4. Then at the place of occurrence itself (on 20-7-1988) fard-beyan of PW 2, Rasi Boipai was recorded on the basis of which, a first information report was prepared which has been marked as Exhibit 10 in this case. In the fardbeyan, there was vivid description of the dacoits including their dresses, face cutting complexion and weapons in their hands. During the course of investigation, the police came to learn that a Yezdi Motor-cycle bearing registration No. OSO 397 was involved in the crime of robbery and from the District Transport Office at Raurkella, it could be found that the original owner of the Motor-cycle had transferred it to accused Dilip Kumar Balmuchu. It could also be learnt by the Investigating Agency that accused Ashok Kumar Sundi along with Pandit alias Pradeep Kumar Hembram were seen in that Motor-cycle roaming hither and the thither. Similar was the allegation against the accused appellant Galu alias Gurcharan Das also. It could also be learnt by the Investigating Agency that accused Ashok Kumar Sundi along with Pandit alias Pradeep Kumar Hembram were seen in that Motor-cycle roaming hither and the thither. Similar was the allegation against the accused appellant Galu alias Gurcharan Das also. After coming to know the name of the accused Ashok Kumar Sundi from the sources, Investigating agency could arrest him and according to the prosecution, he made a detailed confession before the police about his involvement with the crime and on his showing Bhujali, the dress used at the time of commission of the oifence could be seized from an abandoned house on being shown by the accused Ashok Kumar Sundi and those articles were seized. It is the further case of the prosecution that accused Ashok Kumar Sundi could show Yazdi Motor-cycle OSO 397 lying abandoned at Jamshedpur and then the same was seized and the key of that motor cycle was made over by Ashok Kumar Sundi was also seized. On his showing, house of accused Pradeep Hembram and Gurcharan Das and that of Udai Banra were searched. Nothing incriminating could be found from the houses of Pradeep Hembram and Guru Charan Das although they were found missing from their houses but from the house of accused Udai Banra, a table watch alleged to be booty of robbery could be recovered from an abandoned place. 5. Accused Pandit alias Pradeep Hembram was arrested and accused Udai Banra had surrendered on 2-9-1988. Accused Dilip Kumar Balmuchhu also surrendered before the Chief Judicial Magistrate. Test Identification Parade (for short T.I.P.) was held successfully on the surrender or arrest of the accused persons and it is the case of the prosecution that PW 1, PW 2 and PW 5 could identify the accused persons. Then charge-sheet was submitted against the four accused persons showing Gurucharan Das as absconder. This Galu alias Gurucharan Das was arrested in connection with one Arms Act case on 30-5-1989 and he was also shown arrested in connection with this case and then T.I.P. was held on 2-6-1989 and it is said that he was also identified by those three witnesses. It is the further case of the prosecution that Rifal Bhuiyan (PW 5) was the Check Post Guard of the Forest Department which falls on the way to the Bank. It is the further case of the prosecution that Rifal Bhuiyan (PW 5) was the Check Post Guard of the Forest Department which falls on the way to the Bank. This PW 5 alleged to have recognised the robbers while coming to the Bank and going away from there on the date of occurrence through the Check Post and as 6uch he was called on to identify the witnesses. It is also the case of the prosecution that during the course of robbery, wrist watches of PWs 1 and 2 and the Bank Manager were looted away by the dacoits including Raksin bag of the Bank Manager wherein cash were being contained while taking away the same by the robber6. On the date of occurrence, PW 3 (Somra Minz), the Bank Cashier was on leave and therefore he was not present at the site of occurrence. 6. The case was committed twice ; firstly, the case was committed along with accused persons namely, Ashok Kumar Sundi, Udai Banra, Pandit alias Pradeep Hembram and Dilip Kumar Balmuchu when the other accused Galu alias Gurucharan Das was absconding. On arrest of Galu alias Gurucharan Das, the case was again committed on a part file and, therefore, there were two Sessions cases before the Trial Judge as mentioned above. Both the Sessions cases were taken up together for the purpose of trial. In due course, charges were framed against Dilip Kumar Balmuchu who happened to be the transferee of Yezdi Motor Cycle No. OSO 397 and he was charged under Sections 109 and 394/302 of the Indian Penal Code, as he was charged for abating the other accused persons for commission of the offence under Section 394 of the Indian Penal Code also under Section 302 of the Indian Penal Code. The other four accused persons, namely, Ashok Kumar Sundi, Pandit alias Pradeep Hembram, Galu alias Gurucharan Das and Udai Banra charged under Sections 394 and 302/34 of the Indian Penal Code. Accused Udai Banra was further charged under Section 412 of the Indian Penal Code. All the charges were framed on 19-5-1990 and on being read over and explained to the accused persons, they pleaded not guilty. 7. Accused Udai Banra was further charged under Section 412 of the Indian Penal Code. All the charges were framed on 19-5-1990 and on being read over and explained to the accused persons, they pleaded not guilty. 7. From the side of the prosecution, as many as eighteen witnesses have been examined of whom the vital witnesses Surindra Boipai (PW 1), Ransi Boipai (PW 2) and Rifal Bhuiyan (PW 5) who have allegedly identified the robbers in the T. I. P. PW 3 Somra Minz is a Bank Cashier, who was absent on the date of occurrence in the Bank and he has only identified in the T. I. P. the seized material, table clock, which was allegedly being recovered from the house of accused Udai Banra. PW 4 (Shyam Boipai) is a reported witness. PW 6 (Anwar Ahmad), PW 7 (Somai Gope) and PW 8 (Sura Banra) are the seizure list witnesses, PW 9 (Jawed Haque) has been tendered, PW 10 (Ratndeo Singh), PW 11 (Radha Krishna) and PW 12 (Brijendra Nath Pandey) are the Judicial Magistrates who held T. I. Ps. in three successive T. I. Ps., of the suspects and also of the seized materials. PW 13 (Bal Ram Tiwary) is a witness of the seizure of the Motor cycle, PW 14 (Janki Ram) is the Officer-in-charge of the Police Station and the Investigating Officer of the case. PW 15 (Dina Nath Pandey) is Malkhana Incharge who has produced Malkhana register and proved the materials. PW 16 (Ramesh Mishra) is a seizure list witness who has been declared hostile. PW 17 (Sanjay Sharma) is a witness of seizure of Key which is allegedly to be made over by accused Ashok Kumar Sundi regarding Yezdi Motor cycle and PW 18 (Tapan Kumar Chatterjee) is a Compounder who has proved post-mortem report in the case. 8. After scrutinising the evidence on record and also considering the plea of denial of fthe defence regarding their involvement in the crime, the learned court below passed the impugned judgment convicting the three accused appellants who have preferred the appeals separately but acquitted co-accused Pandit alias Pradeep Hembram and Dilip Kumar Balmuchu. Pandit alias Pradeep Hembram was acquitted on benefit of doubt regarding his identification and Dilip Kumar Balmuchu has been acquitted as no case of his involvement with the crime regarding abatement could be proved. 9. Pandit alias Pradeep Hembram was acquitted on benefit of doubt regarding his identification and Dilip Kumar Balmuchu has been acquitted as no case of his involvement with the crime regarding abatement could be proved. 9. The conviction has been based mainly on the basis of identification of the accused-appellants during the course of T. I. P. and also the other incriminating circumstances available against them and also regarding the seizure of incriminating materials from their conscious possession. 10. Before going into the merit of the case, it must be mentioned here that PW 1, Manki of the village Barkela, at the very first instance reported the occurrence to the police station and on the basis of that information, a Sanha entry was made and then the police went to the place of occurrence but that Sanha report has not been produced from the side of the prosecution although that is the first information report. The Fardbeyan of PW 2 recorded on the same very date at the place of occurrence is a subsequent statement made by PW 2 and it is hit by Section 154 of the Code of Criminal Procedure. 11. In the so-called first information report which has been marked as Ext. 10 in this case gives a detailed description about the whole occurrence including the description and features of the robbers, but unfortunately when T.I.P. was held, none have shown during the coruse of T.I.P. amongst the prosecution witnesses, namely, PWs 1, 2 and 3 as to which description of the individual robbers fit in with the accused/suspects who could be identified in the Parade. Even no overt act as alleged to be done bv the individual suspects during the course of robber could also be shown in course of the test identification parade by those witnesses. It should further be mentioned here that PW 2 who had given Fardbeyan just after the occurrence giving details of the occurrence has filed an affidavit which has been marked as Ext. A in this case on 20-11-1988 to the effect that he did not give any description about the robbers in his Fardbeyan nor he could be able to identify any of the robbers only due to the pressure and influence of the police he made identification during the course of T. I. P. Practically he has supported his version in Ext. A during the course of trial. A during the course of trial. It could further be found from the discussion of the individual witnesses and the findings arrived at by the learned 2nd Additional Sessions Judge, Chaibasa, in paragraph 16 of the impugned judgment wherein he has specifically mentioned in the following manner : "After scrutinising the evidences of PWs 1, 2 and 5 on the point of identification, I find that PW 1 and PW 2 have identified accused Udai Banra and Galu alias Guru Charan Das in the court also. PW 2 though declared hostile has also identified accused Ashok Kumar Sundi, Pandit alias Pradeep Hembram but his evidence as to identification of those two accused are shaky in nature. PW 5 supports as to identification of one suspect as per T. I. Chart only failing to identify that suspect in the court." Thus from such discussion and the decision arrived at by the learned trial Judge, only identification could be made in respect of accused Udai Banra and Galu alias Guru Charan Das but those identification also we have mentioned earlier suffers from infirmities as no overt act during the course of robbery could be attributed to any of those accused-appellants. Moreover T. I. P. only aids to the court to come to a finding regarding the identification of person during the course of trial. Ext. 10, the first information report have not supported the identification and even the evidence of PW 1 also becomes shaky if his evidence is considered read as a whole and in between the lines. The identification of Galu alias Guru Charan Das during the course of T. I. P. ha6 got no evidentiary value on the face of it as charge-sheet was submitted showing Guru Charan Das by name as an absconding accused. So it can be presumed that his identification was already there during the course of investigation and as such charge sheet was submitted showing him as absconder, so his identification afterwards on the basis of T. I. Ps. cannot be held to be valid in the eye of law. 12 As regards Udai Banra is concerned, there is another supporting evidence to the effect that from the house of Udai Banra, from an abandoned place, a Table Clock belonging to the Bank was recovered. cannot be held to be valid in the eye of law. 12 As regards Udai Banra is concerned, there is another supporting evidence to the effect that from the house of Udai Banra, from an abandoned place, a Table Clock belonging to the Bank was recovered. Admittedly, at the time when such seizure was made, Udai Banra was absent in the house, There is no evidence to the effect that Udai Banra alone was residing in that house and as such the recovery from his conscious possession could not be proved beyond all reasonable doubt. Whether that Table Clock was a booty of robbery has also not been proved beyond all reasonable doubt in the case. Although there is a detailed description about the occurrence and about the articles being looted by the robbers from the Bank, there is no mention of robbing the Table Clock from the Bank. Afterwards, it is stated by the Investigating Officer that the Bank Officials had stated that Table Clock was also robbed off by the dacoits but there is no evidence to that effect except of PW 2. The trend of evidence of PW 2, as mentioned above, does not inspire confidence. When the Table Clock could not be proved beyond reasonable doubt being the booty of robbery then its recovery even if from the conscious possession of the accused Udai Banra does not lead us to any way regarding the guilt of robbery against Udai Banra. Thus, on the point of identification, although it held by the learned court below that on the evidence of PWs 1, 2 and 5, the involvement of accused Udai Banra and Galu alias Guru Charan Das with the crime of robbery could be proved, we cannot accept the same. Regarding PW 5, we are of the view that he cannot be an identifying witness to the suspects or robbers. It has come in evidence that in the Check-post where he was on duty, only the Cars and Trucks were stopped at the Check-post but the bicycle and Motor-cycle go away through by-pass without stopping at the Check-post. In such a po sition whether there was any opportunity of this PW 5 to identify the persons who were passing through the Check-post in bicycle or Motor-cycle is doubtful. Thus his identification, in our opinion, has got no value. 13. In such a po sition whether there was any opportunity of this PW 5 to identify the persons who were passing through the Check-post in bicycle or Motor-cycle is doubtful. Thus his identification, in our opinion, has got no value. 13. Regarding accused-appellant Ashok Kumar Sundi, it is the case of the prosecution that after his arrest, he made detailed confessions about the whole occurrence and he led police to discover Yezdi Motor Cycle which was involved in the robbery and the key of the Motor-cycle was made over by him to the Investigating Officer in presence of the witnesaes and that he led police to the houses of other accused persons where raiding was made including searches. Except the recovery of Table Clock from the house of Udai Banra, nothing could be recovered from the houses of other accused persons. It is the further case of the prosecution that on being shown and on being led by this Ashok Kumar Sundi, a Bhujali and the dress used at the time of robbery were recovered and seized. Those have also been produced in the court and proved to be seized, although seizure witnesses became hostile. It must be mentioned here that confession before the police is admissible to the extent it comes within the purview of Section 27 of the Evidence Act, but in that case, the prosecution must came up with the exact statement what the accused had stated before the police for the purpose of leading to discovery but no such statement is there in the evidence of Investigating Officer or any other witnesses. Even if assumed it to be granted that this accused Ashok Kumar Sundi after confessing had led police to recover Yezdi Motor Cycle, Key of it, Bhujali and the dresses used in course of robbery are properly done, then also, it remains to be proved from the side of the prosecution that those are materials/articles used in the commission of the crime, otherwise the same looses the character of the incriminating articles as contained under Section 27 of the Evidence Act. No where, there is any evidence to the effect from the side of the prosecution the Yezdi Motor Cycle No. OSO 397 was used at the time of commission of robbery. No where, there is any evidence to the effect from the side of the prosecution the Yezdi Motor Cycle No. OSO 397 was used at the time of commission of robbery. It is true that PWs 2 and 1 stated that one Yezdi Motor Cycle was used in the commission of robbery but as to whether the seized Motorcycle was the Yezdi Motor Cycle used in the commission of robbery or not, there is no evidence to that effect. It is said by the Investigating Officer in his evidence that some of the villagers residing by the side of the road had reported to him about this Motor-cycle and as such he searched for it and then seized the same but none of those villagers have been examined by the prosecution in this case. It is in the evidence of PWs 1 and 2 that a Bhujali was there in the hands of robbers but whether that Bhujali was the Bhujali which was recovered during the course of investigation could not be proved. Only proof is there regarding the seizure but whether those were Used at the time of commission of offence has not been proved by any cogent evidence. Similar is the position of dresses. It has not been proved by any evidence of the witnesses that those dresses have been used by any of the robbers at the time of commission of the offence. So such seizure loses the character of incriminating articles and as such their recovery has got no bearing to prove the crime against any of the accused persons even not against Ashok Kumar Sundi. Moreover, the Motor-cycle seized ha6 not been put in the T. I. P. It was PWs 1 and 2 who have mentioned about the using of Yezdi Motor Cycle in the commission of robbery. About the story of robbery also, there is improbability as no reasons have been given as to why the Bank officials including PW 1 were made to undress by, the robbers during the course of robbery. It is no where said that their bodies were also searched by the robbers for getting any valuables from their possession. 14. Mr. About the story of robbery also, there is improbability as no reasons have been given as to why the Bank officials including PW 1 were made to undress by, the robbers during the course of robbery. It is no where said that their bodies were also searched by the robbers for getting any valuables from their possession. 14. Mr. Rajgarhia, learned counsel appearing for and on behalf of the State has argued that there may not be any conviction under Section 302/34 of the Indian Penal Code as from the trend of evidence it was clear that there was no common intention of the robbers in causing the death of Bank Manager. Only one robber had caused the death while the others had already left the Bank premises with the booties but as to which of those robbers had committed the murder has not been proved from the side of the prosecution, but the submission of Mr. Rajgarhia is that the charge under Section 394 of the Indian Penal Code could be proved against these three accused-appellants on the basis of the T. I P. and the seizure and proof of incriminating articles which, according to him, conclusively proved their involvement with the crime, but we are unable to accept his submission in view of the discussions made above. As in the lengthy judgment of the learned court below, there is discussion of individual witnesses, we debar ourselves from reiterating the same in the appellate judgment. In the nature and circumstances, it could be proved from the side of the prosecution that there was a Bank robbery as alleged and during the course of robbery, the Bank Manager was killed but the prosecution could not be able to prove the involvement of the accused-appellants with the crime beyond all reasonable doubt. 15. In the result, all the three appeals are allowed and the impugned judgment of conviction and the order of sentence are hereby set aside. The accused-appellants are in hazat and as such, they may be set free immediately, if not wanted in any other case.