JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellants above named has been preferred against the impugned judgment and order dated 28.8.1995 passed in Sessions Trial Nos. 174 of 1986/ 70 of 1995 by Shri D.D. Guru, Assistant Sessions Judge, Ghatshila, East Singhbhum whereby and whereunder both the appellants were guilty for the offence punishable under Section 395 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for ten years. 2. The prosecution case has arisen on the basis of the first information report (Ext. 5) lodged by PW 6 Doman Patar, the informant, against unknown dacoits before Chakulia Police Station on 9.4.1984 at 11.30 hours regarding the occurrence which is said to have taken place in the night between 8th and 9th of April, 1984 in his house situate at Village Aamdangara, Tola Dumridih, PS Chakulia, East Singhbhum. 3. The prosecution case, in brief, is that the informant awoke in the night of the occurrence after hearing bark of dogs and he came out of his house after opening the door and found two persons standing at his door and one of them asked for match box from him and he provided it to him. It is alleged that in the meantime, his son saw through his window, some of the persons standing in the back of his house and he came out of his house and raised alarms and fled away towards the village and in the meantime those persons came to the informant from behind his house and caught him and assaulted him and six or seven of them entered in his house and started looting his household effects and also started assaulting the inmates of his house. The prosecution case further is that Manoranjan, the son of the informant was coming to his house on alarms of the informant and one of the dacoits threw a bomb at him, which exploded causing injuries on the thumb of his left leg. The prosecution case further is that Manoranjan, the son of the informant was coming to his house on alarms of the informant and one of the dacoits threw a bomb at him, which exploded causing injuries on the thumb of his left leg. It is alleged that a lamp was burning inside the house and dacoits were also searching the household effects in the flash of their torch and they also intimidated his wife Sawitri Bala Patar and his daughter Arti Bala Patar and were asking from them about the household effects and they identified two of them in flash of torch as well as in the light of lamp and they are the resident of village Jharia and one of them was a scheduled tribe boy of a short stature and of dark colour whose front teeth was protruded and the other was a young Mahto, of dark complexion having pox pitted face and all the dacoits were armed with tangi, lathi, bow and arrow and they were young and the dacoits committed dacoity in his house for 15 to 20 minutes and after committing the dacoity they fled away towards south of the village. It is also alleged that the dacoits have taken away ornaments, gold and silver, utensils and clothes, worth Rs. 29,990/-. 4. In course of investigation, both the appellants were apprehended and they were put on test identification parade and PW 4 Manoranjan Patar identified appellant Lebo Hansda in the test identification parade conducted in the District Jail, Jamshedpur and thereafter test identification parade of appellant Mihir Kumar Mahto was held inside the court room in which he was identified by PW 6 Doman Patar, PW 4 Manoranjan Patar, PW 3 Arti Bala Patar and PW 2 Sawitri Bala Patar. 5. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and that they have been falsely implicated in this case due to enmity. 6. The prosecution has, in all, examined nine witnesses to substantiate its case PW 6 Doman Patar is the informant of this case and his signature on the first information report is Ext. 6. The prosecution has, in all, examined nine witnesses to substantiate its case PW 6 Doman Patar is the informant of this case and his signature on the first information report is Ext. 2 PW 1 Raghunath Patar, PW 2 Sawitri Patar, PW 3 Arti Patar, PW 4 Manoranjan Patar are brother, wife daughter and son respectively of the informant, present in the house at the time of the occurrence in question and they claim themselves to be the ocular witnesses, of the occurrence. PW 5 Krishna Chandra Mahanti and PW 8 Prashant Kumar Sah are the witnesses of the seizure of remnants of the explosive substance from the place of occurrence and their signature on the seizure list arc Ext. I and I/1 respectively PW 9 Dr. Sunil Kumar Kundu has examined the injures on the person of PW 3 Arti Bala Patar, PW 4 Manoranjan Patar and one Doman Patar and injury report in respect thereof are Ext. 4 series. PW 7 J.K. Sen, Sub-Divisional Judicial Magistrate, then posted at Jamshedpur, has conducted the test identification parade of the appellants and the test identification chart per his pen in Ext. 3 series. The IO has not taken oath in this case for the prosecution. 7. Relying upon the testimony of PWs 2, 3, 4 and 6 regarding the identification of appellant Mihir Kumar Mahto as well as PW 4 regarding the identification of appellant Lebo Hasnda @ Karan Hansda in the test identification parade as well as in their substantive evidence in respect thereof, the learned Court below found both the appellants guilty and convicted and sentenced them as stated above. 8. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned Court below did not at all consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been submitted that the appellants do not at all dispute the factum of dacoity in the house of informant but they seriously dispute regarding their identification by the witnesses of the prosecution as participants in the dacoity in question and their identification in the test identification parade is tainted one replete with inherent infirmities. It has been submitted that the appellants do not at all dispute the factum of dacoity in the house of informant but they seriously dispute regarding their identification by the witnesses of the prosecution as participants in the dacoity in question and their identification in the test identification parade is tainted one replete with inherent infirmities. It has been submitted that the both the appellants were known to the informant and his family members much prior to the occurrence and they had worked in the house of the informant as Mason and PW 2 Sawitri Bala Patar has deposed to have identified appellant Mihir Kumar Mahto and she had disclosed him as a participant in the dacoity and she had accompanied the informant to the police station for lodging the first information report where she has disclosed the name of appellant Mihir Kumar Mahto as a participant in the dacoity but in spite of that the case was lodged against the unknown dacoits and after the arrest appellant Mihir Kumar Mahto was brought to the police station in her presence where he was shown to PWs 1, 2 and 6 and in this view of the matter, the test identification parade of appellant Mihir Kumar Mahto conducted in the Court premises stands tainted and vitiated and the learned Court below did not consider this aspect of the matter. It has further been submitted that the village of the appellants is adjacent the village of the informant having their common market and bus stand and both the parties had the opportunity of interaction between them at those places and they were also known to the informant and others and in this view of the matter, they ought to have been named in the first information report itself as participants in the dacoity in question. It has further been submitted that the land of appellant Mihir Kumar Mahto is nearby the land of the informant at a distance of only 50 yards and PW 4 in para 14 of his evidence has admitted this fact and it clearly indicates that the informant and his family members had the occasion to known and identify appellant Mihir Kumar Mahto from before and in spite of that the case was lodged against unknown persons and therefore, his identification in the test identification parade in the Court premises is equally tainted. It has also been contended that both the appellants had special feature i.e. appellant Mihir Kumar Mahto has pox pitted face whereas appellant Lebo Hansda had protruded front teeth and short height and no precaution has been taken by PW 7 while holding the test identification parade and in this view of the matter, their identification in the test identification parade suffers with blemish and no reliance can be placed thereon. Lastly, it has been contended that the appellants stands seriously prejudiced due to the non-examination of the IO in this case and they stand debarred of eliciting facts in his cross-examination showing their innocence as well as contradicting the evidence of the witnesses of the prosecution with that of their statement recorded by the IO in course of investigation. Therefore, the impugned judgment is unsustainable. 9. Refuting the contention aforesaid it has been submitted by the learned APP that the evidence on the record establishes the fact that a dacoity was committed in the house of the informant in which bombs were exploded and three persons had sustained injures caused by explosive substance and the witnesses of the prosecution had the opportunity to see the face of the dacoits in the light of the lamp as well as flash of the torches of the dacoits and PWs 2, 3, 4 and 6 have identified appellant Mihir Kumar Mahto in the test identification parade conducted in the Court premises by PW 7 J.K. Sen, Sub- Divisional Judicial Magistrate, Jamshedpur and appellant Lebo Hansda was identified by PW 4 in the test identification parade conducted by him inside the District Jail, Jamshedpur and in view of the evidence on the record it is established beyond all reasonable doubts that both the appellants had participated in the dacoity committed in the house of the informant and the learned Court below has rightly relied upon their evidence in coming to the finding of the guilt of the appellants. 10. 10. There is no dispute in respect of the fact that a dacoity was committed in the house of PW 6, the informant in the night between 8th of 9th of April, 1984 in which household effects of his house was taken away by the dacoits and in the said occurrence, bombs were exploded outside his house and remnants of the explosive substance were recovered and seized by the IO and PW 5 and PW 8 have stated about the recovery and seizure in respect thereof the IO in their evidence on oath PW 4 Manoranjan Patar has deposed to have sustained injures on the thumb of his left leg caused by explosive substance but PW 9 Dr. Sunil Kumar Kundu has found the said injuries caused by hard and blunt substance and not by any explosive substance. PW 3 Arti Bala Patar and one Deven Patar had also injures on their person caused by hard and blunt substance found by the medical witness aforesaid. It appears from the evidence on the record that no incriminating article has been recovered from the house or from the possession of either of the appellants. There is averment in the first information report (Ext. 5) that two dacoits belong to adjoining village Jharia and one of them is Mahto and other is of scheduled tribe. There is also averment that the said Mahto had pox pitted face whereas the said Adivasi dacoit had his teeth protruded and they have been seen in course of the commission of the dacoity in the light of the lamp as well as in the flash of torch of the dacoits and the case has been lodged against unknown dacoits. It has also been averred in the first information report that the said Adivasi boy has been found invariably selling wood in village Bend which is a common market, place having bus stand for the residents of the village of the appellants as well as of the informant. Now a pertinent question arises at this stage as to whether both the appellants were known and acquainted with the informant and his witnesses by their names prior to the occurrence or not. PW 8 has deposed in para 2 of his cross- examination that appellant Mihir Kumar Mahto had worked as mason in the house of the informant prior to the occurrence. PW 8 has deposed in para 2 of his cross- examination that appellant Mihir Kumar Mahto had worked as mason in the house of the informant prior to the occurrence. PW 2 Sawitri Bala Patar, the wife of the informant, has deposed that in course of dacoity appellant Mihir Kumar Mahto has stuffed her mouth and she has identified him in the light of the lamp and his name is Mihir Kumar Mahto. In para 8 of her cross-examination she has deposed that she had gone to the police station with her informant-husband for lodging the case. In para 6 of her evidence she has deposed that she had disclosed the name of appellant Mihir Kumar Mahto at the police station. PW 4 and PW 6 have deposed that they had seen the face of dacoits in course of the commission of the dacoity in flash of the torch of the dacoits and two of them belong to village Jharia PW 4 has deposed in para 14 of his evidence that the land of appellant Mihir Kumar Mahto is situated at a distance of 50 yards intervened by one piece of land from his land. PW 6, the informant has deposed in para 2 of his evidence that he had identified two of the dacoits by their face in course of the commission of the dacoity who are the resident of village Jharia but he was not knowing their names PW 3 in para 8 has deposed that her parent i.e. PW 2 and PW 6 work as Mason. PW 2 had deposed that she works as labourer for her livelihood. It, therefore, appears from the evidence referred to above that appellant Mihir Kumar Mahto, resident of village Jharia had worked as Mason in the house of the informant prior to the occurrence and he was well known to the informant and his family members much-prior to the occurrence and PW 2 disclosed about appellant Mihir Kumar Mahto having been identified in course of the commission of the dacoity at the police station at the time of drawing of the first informant report. It appears queer enough as to why his name as participant in the dacoity has been suppressed by the informant. No explanation is forthcoming on the record in respect thereof. It appears queer enough as to why his name as participant in the dacoity has been suppressed by the informant. No explanation is forthcoming on the record in respect thereof. Furthermore, appellant Mihir Kumar Mahto has special physical feature i.e. his face is pox pitted and in view of his special physical feature it is hard to believe that the informant and others only described him in the first information report as a Mahto of village Jharia and not by his name even told by PW 2 at the moment. According to the prosecution case. PW 4 Manoranjan Patar, the son of the informant saw the dacoits from the window standing in the back of his house and those dacoits came in front of the house of the informant and he had fled away from there raising alarms towards the village and while he was returning from the village in course of the commission of the dacoity, a bomb was thrown at him and he again fled away towards the village. It is pertinent to mention here that there was no means of identification in the back of his house. He has deposed in paras 3 and 4 of his evidence that he saw through his window 10 or 12 dacoits standing outside his house and he managed to escape away from there and when he returned to the village by that time all the dacoits had fled away. Therefore, his evidence in para 9 of his testimony that he has seen the dacoits and identified them in the flash of the torch of the dacoits and two of the dacoits belong to village Jharia appears to be palpably false and incorrect and this witness has no occasion at all as per his evidence to see the dacoits and specially the appellants as participant in the dacoity in question PW 7 J.K. Sen, the Sub-Divisional Judicial Magistrate, Jamshedpur has deposed to have conducted the test identification parade of appellant Lebo Hansda on 26.6.1984 in District Jail, Jamshedpur in which PW 4 Manoranjan Patar has identified him while standing at his door with iron rod along with other dacoits. Here I will refer the evidence of PW 6, the informant appearing in concluding portion of para 6 of his evidence in which he has stated that his son PW 4 had fled away from the house by the back door. Here I will refer the evidence of PW 6, the informant appearing in concluding portion of para 6 of his evidence in which he has stated that his son PW 4 had fled away from the house by the back door. It is equally pertinent to mention here that there was no means of identification available at the door of the informant when he had opened the door of his house on hearing bark of dogs. Therefore, the evidence on the record referred to above clearly rules out the possibility of PW 4 having seen appellant Lebo Hansda as a participant in the dacoity in question. PW 7 has further deposed that the again conducted the test identification parade of appellant Lebo Hansda in the District Jail, Jamshedpur on 14.11.1984 in which PW 6, the informant, his wife PW 2 and his daughter PW 3 did not identify the said appellants as participant in the dacoity in-spite of his special physical feature i.e. his upper teeth being protruded. It is equally relevant to mention here that the test identification chart (Ext. 3 series) whereby PW 4 has claimed to have identified appellant Lebo Hansda in the test identification parade on 26.6.1984 does not whisper regarding mixing the appellant with nine other persons having protruded teeth and thus, the test identification parade cannot be said free from blemish in the facts and circumstances of this case. Therefore, the evidence of PW 4 that he has identified appellant Lebo Hansda in the test identification parade as well as in the Court in course of evidence does not inspire confidence at all in the facts and circumstances of this case coupled with the evidence referred to above in respect thereof. There is no other evidence on the record to substantiate the prosecution case regarding the participation of appellant Lebo Hansda in the commission of the dacoity in question. I have already stated above that appellant Mihir Kumar Mahto was known to the informant and his family members much prior to the occurrence and PW 2 has identified him in course of the commission of the dacoity and has stated his name while the first information report was being drawn but inspite of that he was not mentioned by name in the first information report for the reasons best known to the prosecution. He has been put on test identification parade conducted by PW 7 J.K. Sen on 14.11.1984 and this test identification parade was conducted in the Court room in the premises of the civil Court. This appellant was on provisional bail. It appears from the order dated 14.11.1984 of the Additional Chief Judicial Magistrate passed in this case that appellant Mihir Kumar Mahto was present in the Court and PWs 6, 4, 3 and 2 were also present in the said Court and a petition was filed by the IO to put appellant Mihir Kumar Mahto on test identification parade and PW 7 J.K. Sen was ordered to conduct test identification parade. The said test identification parade was conducted in the Court premises in which PWs 6, 4, 3 and 2 have identified him in the said test identification parade. It is relevant to mention here that all the witnesses had the occasion to see this appellant in the Court room prior to his test identification parade. There is no evidence on the record to show that any precaution has been taken by the IO regarding the concealing the identity of appellant Mihir Kumar Mahto prior to putting him in the test identification parade PW 7 is equally silent in his testimony in respect thereof. Furthermore there is no whisper in the test identification chart (Ext. 3 series) that the persons assembled with this appellant in course of test identification parade had pox pitted face. Therefore, the test identification parade conducted by PW 7 has lost all its relevancy in view of legal infirmities surrounding the said test identification parade in which this appellant was identified by four prosecution witnesses. Therefore, no reliance can be placed in this case on test identification chart (Ext. 3 series) read with the testimony of PW 7 and the test identification parade of this appellant stands tainted and it pales into insignificance. Therefore, the evidence of PWs 6, 4, 3 and 2 identifying this appellant in the Court in course of evidence has also no legal effect in the facts and circumstances of this case referred to above to substantiate the participation of this appellant in the occurrence in question. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred in relying upon the test identification, chart (Ext. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred in relying upon the test identification, chart (Ext. 3 series) read with the evidence of PW 7 as well as the evidence of PWs 6, 4, 3 and 2 regarding the identification of this appellant as participant in the dacoity in question and has committed a manifest error in coming to the finding of the guilt of the appellants. It is equally pertinent to mention here that there is no iota of legal evidence on the record to connect both the appellants as participants in the dacoity in question and their false implication in the facts and circumstances of this case cannot be totally ruled out. Therefore, the impugned judgment suffers with legal infirmity, which requires an interference therein. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is set aside. The appellants arc found not guilty and they are, accordingly, acquitted and discharged from the liabilities of their bail bonds.