Judgment P.K.Deb, J. 1. All these three appeals have been heard analogous as arise out of the common judgment dated 18.3.1989 passed by the then 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 53 of 1988 convicting the appellants under Sec. 395 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for eight years. The accused-appellants although were charged under Sec. 412 of the Indian Penal Code but the said charge could not be proved beyond all reasonable doubt and, as such they have been acquitted of that charge. 2. The prosecution case, in brief is that on 5.11.1986 at about 7.30 p.m. a dacoity was alleged to be committed at the official residence of Kanij Fatma the Principal of the girls training college of Muzaffarpur. It was also alleged that valuables like transistor, television with some ornaments had been looted away by the dacoits. When a hullah was raised at the place of occurrence the neighbouring people gathered all the accused persons fled away. It is further alleged that on chase the accused-appellant Rajdeo Ram was caught red-handed having a rolled gold chain in his possession alleged to be the booty of the dacoity but that chain was neither handed over to the police nor the same was being identified as booty of the dacoity. Information was lodged by the principal herself on that very night at about 8.30 p.m. Except the accused-appellant Rajdeo Ram non other appellants were named in the fardbeyan. 3. On the basis of that fardbeyan a case was registered and investigation held. During the course of investigation other accused-appellants had also been apprehended and it is stated that some booties have been recovered from the possession of some of the accused-appellants. Those three accused-appellants had also been put on test identification parade by two Judicial Magistrates and that those appellants were identified in course of test identification parade. After closure of the investigation charge-sheet was submitted against all the accused-persons under Sec. 395/412 of the Indian Penal Code. 4. On being committed to the Sessions, charges were framed under the same Sections of the Indian Penal Code, when the same was read over and explained to the accused persons they pleaded not guilty. 5. The defence version is that practically there was no dacoity committed at the official residence of P.W. 5 and false implication is there of the accused-appellants. 5. The defence version is that practically there was no dacoity committed at the official residence of P.W. 5 and false implication is there of the accused-appellants. Regarding the accused-appellant Sanjay Kumar alias Munna, two D.Ws. have also been examined to show the enmity between P.W. 5 and the mother of Sanjay Kumar. Those D.Ws. stated that, as mother of Sanjay Kumar being a leader raised voice against the mis-deeds of the Principal, Sanjay Kumar has been falsely implicated in the dacoity case. In respect of the accused-appellant Rajdeo Ram it has been pleaded that he had residence nearby the principals official residence and he used to pass through the road always and only for showing that a dacoity was committed at the official residence of the principal, he was shown to have been chased and caught. In respect of accused-appellant Md. Mogal Mian and Md. Arshad, their case is that they have just been falsely implicated out of enmity. 6. For and on behalf of the prosecution as many as ten witnesses have been examined. 7. P.W. 1 Sushil Kumar Thakur was alleged to be present at the residence of principal at the time of occurrence. He happens to be a chance witness. He did not identify any of the accused persons. 8. P.W. 2 Badri Ram happened to be the peon of the teachers training college and he was present at the gate of the residence at the relevant time. He supported the case of dacoity and he also stated that he identified accused-appellant Sanjay Kumar in course of test identification parade. But in cross-examination he stated that about 5-6 days after the occurrence police officer brought some of the accused persons including Sanjay Kumar to the house of the informant Kanij Fatma and asked the inmates of the house including P.W. 2 to identify these persons in the test identification parade and he admitted that out of fear of the police personnel he had to identify accused-appellant Sanjay Kumar in the test identification parade. 9. P.W. 3 Farhad Jahan Arrah Begum is the daughter of the informant Kanij Fatma. She was at the relevant time of occurrence serving in a college at Bhagalpur. But, according to the prosecution, she came down to Muzaffarpur to stay with her mother about 2-3 days prior to the occurrence, she identified Sanjay Kumar, Md. Mogal Mian and Md. Arshad. P.W. 3 Farhad Jahan Arrah Begum is the daughter of the informant Kanij Fatma. She was at the relevant time of occurrence serving in a college at Bhagalpur. But, according to the prosecution, she came down to Muzaffarpur to stay with her mother about 2-3 days prior to the occurrence, she identified Sanjay Kumar, Md. Mogal Mian and Md. Arshad. But from the evidence of P.W. 2 it appears that at the time of occurrence she was not at the residence as she went out for shopping and after one hour of the occurrence she returned home. 10. P.W. 4 Juli is the daughter of P.W. 3 and as such grand-daughter of the informant Kanij Fatma, P.W. 5, she supported the occurrence of dacoity but did not identify any body. 11. P.W. 5 Kanij Fatma is the key witness of the prosecution. She happens to be the informant and also identified Sanjay Kumar and Md. Arshad. 12. P.W. 6 Shambhu Mahto is the witness regarding the recovery of booties of dacoity. 13. P.W. 7 Shamshad Alam happened to be the driver of P.W. 5. He did not support the prosecution case and also denied about identification in the test identification parade and, as such, he has been declared hostile. 14. P.Ws. 8 & 9 Shri Hari Niwas Gupta and P.W. 9 Shri Deepak Kumai Singh are the Judicial Magistrates who conducted test identification parade and proved the T.I. Charts at Exts. 3 & 3/1. Admittedly, the test identification parade was done about twenty days after the occurrence. 15. P.W. 10 Shri Brij Bihari Prasad is the Investigating Officer of the case. 16. The whole case hinges on the identification of the dacoits although the very factum of dacoity was challenged from side of the defence but it appears from the evidence of the prosecution witnesses considering them in totality that the factum of dacoity has been proved from the side of the prosecution. Regarding the implication of the accused-appellants, the whole case hinges on the identification of them besides the accused-appellant Rajdeo Ram as he was never put on test identification parade and it is only stated that he was caught being chased by public soon after the dacoity was committed. Accused-appellant Sanjay Kumar had been identified by P.Ws. 2, 3, 5 & 7 in the test identification parade. Accused-appellant Sanjay Kumar had been identified by P.Ws. 2, 3, 5 & 7 in the test identification parade. Out of them P.W. 7 has denied of identification and he has been declared hostile. P.W. 2 although identified him in the Court also but he said that he had to identify at the fear of police and that Sanjay Kumar was already shown to him and other inmates of their house after 5-6 days of the dacoity. So his identification has also got no evidenciary value. Regarding the identification by P.W. 3, a big question remains as to whether she was present at the place of occurrence at the relevant time, on, the face of the evidence of P.W. 2. It should be mentioned here that P.W. 2 has been relied on by the prosecution and he has never been declared hostile. Thus, the only identification remains by the informant P.W. 5, Kanij Fatma. Her identification is also doubtful on the evidence of P.W. 2, regarding showing of the accused-appellants to her also before the test identification parade was held. On the face of such irregularity in the identification itself practically the test identification parade loses all its sanctity. The other accused-appellant Md. Mogal Mian had been identified by P.W. 3 alone. It has already been mentioned that her presence at the place of occurrence has not been proved beyond all reasonably doubt. Accused-appellant Md. Arshad has been identified by P.Ws. 5 & 6, the mother and the daughter. The same evidence which is available against Sanjay Kumar is also available against Md. Arshad. 17. On independent scrutiny of the evidence on record I find that factum of dacoity was established but as the participation in the dacoity solely hinges in respect of accused-appellants Sanjay Kumar, Md. Mogal Mian and Md. Arshad on the test identification parade and when the identification has been tainted, as already discussed above, it cannot be said that the case under Sec. 395 of the Indian Penal Code has been established against these three accused-appellants. Regarding the other accused-appellant, namely, Rajdeo Ram he was caught on chase just after the dacoity was committed. Although some booties were alleged to be recovered from his possession but the same could not be proved as booty of the dacoity. Regarding the other accused-appellant, namely, Rajdeo Ram he was caught on chase just after the dacoity was committed. Although some booties were alleged to be recovered from his possession but the same could not be proved as booty of the dacoity. The public, who had chased had not been examined in the case except P.W. 7 Shamshad Alam who happened to be the driver of P.W. 5 but Shamshad Alam had already been declared hostile. But from the evidence of the Investigating Officer and that of P.W. 5 I can find that the case under Sec. 395 of the Indian Penal Code has been established against the accused-appellant Rajdeo Ram. Putting him in the test identification parade does not arise as he was already named in the first information report. As regards Sanjay Kumar enmity was alleged against the informed but no enmity has been alleged in respect of these accused-appellant with the informant. 18. In the result, Cr. Appeal Nos. 121/89 & 145/89 are hereby allowed and the accused-appellants are hereby acquitted after setting-aside of the judgment of conviction. They are set at liberty and are relieved of their bail-bonds. Cr. appeal No. 145/89 is dismissed and the conviction against the accused-appellant Rajdeo Ram is hereby upheld and confirmed. But from the circumstances of the case I find that the sentence imposed on him is too harsh. The occurrence took place in the year 1986. The accused-appellant Rajdeo Ram remained in custody for about two and half years. Considering the gravity of the offence and the involvement of the accused-appellant, I feel that justice would be done if the accused-appellant is allowed to be let off by minimising the sentence for the period undergone. The accused-appellant Rajdeo Ram is hereby allowed to be freed and relieved of his bail-bonds.