Judgment 1. The sole appellant suffered conviction under S. 396 of the Indian Penal Code in Sessions Trial No. 62 of 1989 on being tried by 5th Additional Sessions Judge, Rohtas and was sentenced to rigorous imprisonment for ten years on that count. 2. The factual matrix are that in the intervening night of 23/ 24/04/1938 at midnight four dacoits sealed on the roof of the house of Parmanand Kumar, P.W. 3, with the help of ladder and jumped in the courtyard. After the family members got awoken, the criminals surrounded them, removed house belongings including boxes, ornaments, watch, cash etc. and made good their escape with the booties. A police case was registered at behest of Permanand Kumar, P.W. 7 at about 7 hours on 24/04/1988 following which investigation commenced on conclusion of which, while the police did not want three accused to stand trial, laid charge-sheet against the sole appellant. In the aventual trial, the prosecution examined altogether five witnesses including Mahesh Singh P.W. 3, Ram Janam Singh P.W. 3, Parmanand Singh P.W. 3, Asturni Devi P.W. 4 and Kamla Kumari P.W. 5. The trial Court placing implicit reliance on the testimony of the witnesses, finding prosecution came to be recorded by the trial Court has been assailed by the learned counsel for the appellant primarily on two premises. Firstly, it is sought to be urged that though appellant is shown to have been apprehended before the First Information Report was drawn up, alter about seven hours of the incident, narration about apprehension of the appellant facilitating occasion for identification, was wanting in the early version of the prosecution. It is sought to be urged that though witnesses had been narrating to have identified the appellant for the first time during the commission of offence, they were not worth credence, as there was no evidence that the test identification parade of the sole appellant was over held by the Police. Second limb of argument pressed into service on behalf of the appellant was that a the appellant alone had been convicted under S. 395 of the Indian Penal Code the finding recording by the trial Court on this score too was not sustainable and tenable, in view of the law laid down by the Apex Court of the land reported in (1983) 2 SCC 66 , Ram Lakhan V/s. State of Uttar Pradesh. 3. 3. Now adverting to the evidences of the prosecution witnesses, one would find that though P.W. 3 did not claim to have identified Gurucharan Dusadh, he too narrated before the Court to have learnt about complicity of the appellant from Parmanand Kumar but in next breadth he would not hesitate to state that he was not informed about complicity of any of the accused. If evidence of these witnesses who admittedly are hearsay witnesses are taken into consideration, complicity of the appellant having been suggested to them by Parmanand Kumar would be completely lost. Now adverting to the evidence of P.W. 3 who happens to be none else but the person who set the police in motion, one would find that he too was narrating before the Court to have seen the appellant for the first time during the commission of offence. It is admitted case that no test identification parade was over held and that apart this in the dock. If testimony of this witness is taken to be true on its face value, his further statement was never recorded by the police. Similar infirmity has crept in evidence of P.W. 4 and P.W. 5 also who claim to have identified the appellant for the first time during commission of offences in the flash light of torch of the appellant which he held with him. The evidence of P.W. 4 was that it was for the first time that she saw the appellant in the night. The attention of this witness was drawn to her early version which she rendered before the police about complicity of the appellant and one would find that she made candid admission that she had not narrated complicity of the appellant before the police. If she is to be believed, it was a dark night and hence possibility of identification of culprits who were strangers was extremely remote. Though P.W. 5 too claims to have identified the appellant on being apprehended by the police and the public, she would admit that she saw the appellant for the first time in the night of occurrence. Attention of this witness too was drawn up by the defence about complicity of the appellant not transpiring in her early version which she rendered before the police. Attention of this witness too was drawn up by the defence about complicity of the appellant not transpiring in her early version which she rendered before the police. Since the Investigating Officer was not examined in trial, many questions remain unanswered particularly when attention of the witnesses were drawn up by the defence challenging their early version rendered before the police suggesting complicity of the appellant. It is admitted at the bar that no T.I.P. was over held by the prosecution. Evidence of clinching nature conclusively suggesting complicity of the appellant in the occurrence was altogether wanting. There is one more disturbing feature of the prosecution case which cannot be lost night of P.W. 5 had been narrating before the Court that at about 6 a.m. following day of incident, the appellant was apprehended. Though formal F.I.R. was drawn up by the police after seven hours of the incident, such narration about apprehension of the appellant shortly after the incident was conspiciously wanting therein. The evidence of the prosecution witnesses as such, suffered from serious infirmity and are not free from blemishes which could make them worth reliance and lastly placing reliance on the law laid down by the Apex Court of the land reported in (1983) 2 SCC page 65; Ram Lakhan V/s. State of Uttar Pradesh) it is sought to be urged that since appellant alone has been convicted under S. 395 of the Indian Penal Code and there being no evidence even in early version of the informant about complicity of more than four persons, conviction of the appellant on that count two was bad in law. 4. Having taken into consideration the evidence placed on the record, I find that the finding recorded by the trial Court holding the appellant guilty and sentencing him on that count was not sustainable in law which is accordingly set aside. The appellant is exonerated of the charge levelled against him and is acquitted. He shall also stand discharged from the liability of the bail bond. The appeal accordingly succeeds. Appeal allowed.