Judgment B.N.P.Singh, J. 1. In the midnight of 23rd June, 1985 while there was storm and incessant rain and house inmates where awakened, Hasibur Rahman (PW 6) noticed Belal who was his house guard, moving with torch in the north east direction, pursuant to which he shouted in a loud voice. When Hesibur Rahman flashed his torch light outside the window of the room, he noticed some persons who had over powered Belal, and identified Hasibul who was one of them and was also a notorious criminal. Shortly thereafter it was alleged that there was an explosion of bomb and the dacoits breaking open the planke of the door sneaked in his soon, assaulted him and also did assault other house inmates and decamped with the booties which include utensils, ornaments and other house belongings. Hasibur Rahman claimed to have identified Hasibul Mian, Kalam, Hirba Yadav and Islam Mian among those who allegedly committed dacoity in the house and with these narrations, fardbeyan of Hasibur Rahman was recorded by S.N. Singh, Sub-Inspector of police in the following morning at 1.35 hours which forms basis of First Information Report drawn up by the police. The investigation commenced and in the process of investigation, the Investigating Officer recorded statement of witnesses, got test identification parade conducted by a Judicial Magistrate and eventually laid charge-sheet before the court against Hasibul Mian, Sultan and one Jagdish also, who eventually on being committed to the Court of Sessions, were put on trial. Since Jagdish Sah had been absconding thereafter, his trial was bifurcated from the rest of the accused. In the eventual trial, the prosecution examined altogether seven witnesses, of whom Wasim Ahmad PW 7 was tendered by the prosecution and there was nothing material in his evidence to merit consideration. Ijafuddin PW 1, Babar Ali PW 2, Majibur Rahman PW 3 though they did not claim to have identified those who participated in the commission of dacoity in the house of Hasibur Rahman, stated to have visited the place of occurrence shortly after explosion of bomb, when noticed house belongings scattered. They also claimed to have been informed by Hasibur Rahman about identification of the appellant Hasibul Mian and others, Md. Belal PW 5 stated to be on petrolling duty on that night when he noticed fifteen dacoits coming from the east side when they over powered him. They also claimed to have been informed by Hasibur Rahman about identification of the appellant Hasibul Mian and others, Md. Belal PW 5 stated to be on petrolling duty on that night when he noticed fifteen dacoits coming from the east side when they over powered him. He claimed to have identified Hasibul Mian in the test identification parade, who was holding a gun with him. After he raised alarm his master flashed light of torch from eastern window of the room where he was living and he too noticed Hasibul Mian. He would state that the miscreants broke open the door plank and having gained their access in inner appartment of the house, removed house belongings. After the villagers flocked to the place of occurrence the miscreants retired from the place of occurrence after taking recourse to firing and explosing bomb. This witness claimed to have identified Sultan, another appellant, during the test identification parade. The evidence of Hasibur Rahman PW 6 was reiteration of early version which he rendered before the police, about identification of Hasibul Mian and others. It was stated by him that the miscreants got their access in inner apartment of the house/and having coerced the house inmates removed house belongings. This witness too claimed to have participated in the test identification parade when Sultan was identified by him. This is all the evidence that has been adduced on behalf of the State. 2. Learned counsel appointed as Amicus Curiae to assist the court while criticising the credibility of the evidence of the witnesses would urge that as identification of the appellants were based only on the evidence of the master of the house and also his employee, who were quite interested in the case of the prosecution, the bona fide of the prosecution versions has to be discarded for the exclusion of independent witnesses residing in the vicinity of the place of occurrence who are expected to have flocked there shortly after the receipt of information about the incident. Learned counsel for the State would counter the arguments advanced on behalf of the appellants. 3. The trial Court on appreciation of evidences placed on the record rendered verdict of guilt against the appellants and sentenced them to suffer rigorous imprisonment for ten years. Learned counsel for the State would counter the arguments advanced on behalf of the appellants. 3. The trial Court on appreciation of evidences placed on the record rendered verdict of guilt against the appellants and sentenced them to suffer rigorous imprisonment for ten years. True it is that in view of the clinching evidences of PWs 5 and 6 about the commission of dacoity in the night on 23rd June, 1985 in the house of Hasibur Rahman, the factum of dacoity could not be seriously challenged. The narrations made by PWs 5 and 6 about sequence of events when miscreants gained their access in inner appartment of the house, coerced house inmates and retired from the place of occurrence with the booty were coherent and I find that except for bald suggestion given to the witnesses for attribution of, enmity nothing tangible was brought on the record to militate against the bona fide of the prosecution case. Suggestions were given to Md. Belal PW 5 by the defence that as one Md. Sakur Ansari had launched prosecution for arson against his master in which Jagdish Sah was a witness, the appellants were falsely implicated. Similar suggestions were made to PW 6 Hasibur Rahman that as Md. Sakur Ansari had instilled G.R. No. 190 of 1980 with allegation of committing arson against him in which Jagdish Sah happens to be a witness, the appellants were falsely implicated. Not only suggestions were emphatically refuted by the witness but he would state that in that case the police had submitted final report. Be that as it may apart from the fact that no such document was ever brought on the record by the defence to battress the contention raised on their behalf about Hasibur Rahman having been prosecuted in the case filed by Abdul Sakur in which Jagdish Sah was a witness, these suggestions were hardly applicable in the case of the appellants, as it is admitted that the said Jagdish Sah is not among the appellants. The identification of appellant Hasibul Mian is said to have been made in the light of torch which miscreants were holding with them and also in a lantern that was burning in the house. Bald suggestions were also given to PW 6 that Hasibul Mian was falsely implicated by him since his father had refused to give him a Kalmi right in some land. Bald suggestions were also given to PW 6 that Hasibul Mian was falsely implicated by him since his father had refused to give him a Kalmi right in some land. This does not require repetition that this suggestion has not been substantiated by tangible evidence. Apart from the evidences of PWs, 5 and 6, the prosecution would also seek corroboration of their evidences, from PWs 1, 2 and 3 who stated in positive terms to have flocked to the house of Hasibur Rahman on hearing sound of explosion of bomb when they were informed by Hasibur Rahman about identification of Hasibul Mian and others. They too noticed the marks of violence in house, as door planks of the room were found broken and house belongings scattered. Though complicity of Hasibul Mian was suggested on identification by PWs 5 and 6 during commission of dacoity, the trial Court sought assistance from test identification parade chart placed on the record to draw inference about complicity of Sultan. Least said is better about the finding recorded by the trial Court so far identification of Sultan was concerned, as a part from the fact that the Magistrate holding test identification parade was not examined at trial and also that Investigating Officer too did not come to the witness box, even TIP Chart which is shown to be the sheet anchor of the prosecution about identification of Sultan was never brought on the record. The trial Judge seems to have been observed only with the test identification parade chart even when it was not legally brought on the record by the State. The failure of the state counsel to bring the TIP Chart which was very much available on the records is writ large on the face of the proceeding and once the result of TIP Chart is excluded from consideration, the identification of Sultan is lost. The finding of the trial Court in that view of the matter is not sustainable, so far complicity of Sultan was concerned. However, in the case of Hasibul Mian both PW 5 and 6 as has been stated, claimed to have identified him during commission of dacoity and the evidences of PWs 1, 2 and 3 has lent assurance to the prosecution allegation about complicity of Hasibul Mian, shortly after the incident. However, in the case of Hasibul Mian both PW 5 and 6 as has been stated, claimed to have identified him during commission of dacoity and the evidences of PWs 1, 2 and 3 has lent assurance to the prosecution allegation about complicity of Hasibul Mian, shortly after the incident. The suggestion about the false implication of Hasibul Mian was quite meritless in view of there being no such tangible evidence, and as is evident from the evidence of PW 6, he was quite known to him from before. His house situates at a distance of only one and half Kilo Metre from the house of Hasibur Rahman and his land is adjacent to the land of PW 6 Hasibur Rahman and it is not a case in which the identification of the miscreant can be challenged in view of he being stranger. True it is that the Investifating Officer of the case was not examined at the trial but neither the statement of the PWs appear to be discrepent nor their evidences about place of occurrence to have suffered ambiguity. 4. Though the appellants Hasibul Mian has suffered rigorous of the prosecution about 15 years but in view of the nature of offence shown to have been committed by him, I do not find myself pursuaded to take a lenient view in the matter of awarding sentence to him. 5. Having taken into consideration the evidences placed on the record, the contentions raised at the Bar on behalf of the appellants, while finding recorded by the trial Court in respect of Sultan is set aside and he is acquitted of the charges, the conviction in respect of Hasibul Mian is maintained without there being any modification in sentence. His bail bond is cancelled. The trial Court shall take all coercive steps to take him to custody to serve out sentence. The appeal accordingly partly succeeds. 6. As Mrs. Nirmala Kumari, Advocate on the direction of the court appeared as amicus curiae to assist the Court she shall be paid her fees from the Patna High Court Legal Service Committee.