Judgment M. L. Visa, J. 1. All these three appeals, which are directed against the judgment and order dated 29.4.1991 passed by Additional Sessions Judge II, rohtas at Sasaram in Sessions Trial No.468 of 1986 convicting and sentencing the appellants to undergo rigorous imprisonment for a period of six years each under Sec.395 of Indian Penal Code (In short "ipc"), have been heard together and are being disposed of by this common order. 2. The case of prosecution, in short, is that informant Ram Prasad gupta (PW 7) on 9.4.1986 was sleeping on the roof of his house when about 12 Oclock in the night, two thieves armed with country made pistols entered his house and hit on his head and he woke up. Both the thieves asked him to open the door of staircase leading to ground floor of house and there was scuffle of informant with one of the thieves. In the meantime, five other thieves came there and they opened the door and all thieves cams in the Angan of the house and one of the thieves opened the outer door and three more thieves from that door also entered the house. The thieves were flashing torches in the light of which informant identified appellants Ramashish choudhary and Rajgrahi Dusadh. The thieves snatched ornaments from the body of Janki Devi (PW 6), wife of informant and they took away clothes etc. from the house of informant. On the next day at about 10 a. m. , Farde-bayan (Exhibit-2)of informant was recorded by police. Formal first information report (Exhibit-1)under Sections 395 and 397 of IPC against appellants Ramashish Choudhary and Rajgrahi Dusadh and eight unknown was drawn. The police, after investigation, submitted charge-sheet under sections 395 and 412 of IPC against appellants, one Dudhnath Nat who during trial died and against Ramlal Dusadh and Shyam Behari Giri showing them absconders. Cognizance of the case was taken and case was committed to the court of Session where charge under section 395 of IPC against all the appellants and charge under Sec.412 of ipc against Shyam Behari Giri and ramlal Dusadh were framed. After trial, all the appellants were found guilty under Sec.395 of IPC and were convicted and sentenced to undergo rigorous imprisonment for six years each. Shyam behari Giri and Ramlal Dusadh were not held guilty and were acquitted. 3. After trial, all the appellants were found guilty under Sec.395 of IPC and were convicted and sentenced to undergo rigorous imprisonment for six years each. Shyam behari Giri and Ramlal Dusadh were not held guilty and were acquitted. 3. The case of the appellants is of complete denial of the charge and their false implication. 4. In order to prove its case, prosecution examined twelve witnesses. Mahendra Singh (PW.1) is a formal witness who has proved formal first information report (Exhibit-1 ). Suresh Prasad (PW2) is also a formal witness who has proved the Fard-e-bayan (Exhibit-2 ). Mahendra Singh (PW 12) is also a formal witness who has proved the test identification chart (Exhibit-4/4 ). Narbdeshwar singh (PW 4) had brought material exhibits from the malkhana of Suryapura Police Station in Court. Similarly, brijnandan Singh (PW 5) had also brought other material exhibits from Malkhana of suryapura Police Station in Court. Indradeo Mishra (PW 8) and Bal Krishna verma (PW 9) both are Judicial Magistrates who had conducted test identification parade. Hira Lai Ram (PW 10) and hawaldar Ram (PW 11) both are seizure list witnesses when some stolen articles were said to have been recovered from the house of co-accused Ramlal Dusadh. Ram Prasad Gupta (PW 7) is the informant. Janki Devi (PW 6) is the wife of informant. Uma Singh (PW 3) is the witness who is said to have reached the house of informant after hearing hulla at the time of dacoity. 5. Ram Prasad Gupta (PW 7) has said that on the day of occurrence, he was sleeping on the roof of his house when at about 12 Oclock in the night he woke up when a dacoit hit from the barrel of gun on his head and he then found two dacoits armed with countrymade pistols and both the dacoits by pushing him took him to the door of staircase and there was scuffle between him and one of the dacoits and in the meantime five dacoits also came there and they opened the door of the house and three more dacoits entered the house through that door and in the light of torches which were being flashed by dacoits, he identified the appellants rajgrahi Dusadh and Ramashish choudhary. He further stated that dacoits started looting articles from his house and they also snatched ornaments from the body of his wife and daughter Asha Kumari. He further stated that dacoits started looting articles from his house and they also snatched ornaments from the body of his wife and daughter Asha Kumari. According to him, dacoits took away clothes, utensils etc. from his house. He has further said that on the next day in the morning, police came to his nouse and his Fard-e-bayan was recorded. In para-5 of his evidence, he has said that in the test identification parade, he had identified appellants Sheo Muni chamar, Mahendra Ahir, Jagdish dusadh and Dudhnath Nat (since dead ). In Para-6, he has said that the articles which were taken away from his house in dacoity were recovered and in test identification parade, he identified one steel tumbler and one Toshak, In Court, he identified these articles which are marked material Exhibits-1 and II. In para-13 of his examination, he has admitted that for attending test identification parade, he went to Sasaram Jail for four times and on two times, Darogajee and on remaining two times Jamadar saheb had come to Sasaram Jail. The presence of police in Sasaram Jail at the time of holding test identification parade in which informant is said to have identified some appellants makes his identification of some of appellants quite doubtful. In para 17 of his cross-examination, he has admitted that appellant ramashish Choudhary belongs to his own village and he is having his house about thirty feet from his house at north west corner. He has further said that at the time of dacoity although appellant ramashish Choudhary had covered his face with a Gamcha (napkin) but he identified him from a distance of about eight to ten feet. In para-18, he has admitted that field of appellant Ramashish choudhary is adjacent west of his own field but has denied that there was a dispute between him and appellant ramashish Choudhary on account of irrigation to their lands and on that account, he had falsely implicated appellant ramashish Choudhary in this case. His admission in para-13 that on the second time when he went to Sasaram Jail for attending test identification parade, suspects were put in a row of thirty to thirty five persons coupled with evidence of indradeo Mishra (PW 8 ). His admission in para-13 that on the second time when he went to Sasaram Jail for attending test identification parade, suspects were put in a row of thirty to thirty five persons coupled with evidence of indradeo Mishra (PW 8 ). Judicial Magistrate who conducted test identification parade that on 29.4.1986 in test identification parade appellants Mahendra Ahir and Jairam Ahir along with Gudri chamar and Bhagwan Dusadh who in charge-sheet were shown suspects were at a time put with thirty six other persons meaning thereby that witnesses were required to identify suspects in a group of forty persons makes the holding of test identification parade not according to law. Janki Devi (PW 6), wife of informant, in her evidence, has said that at the time of occurrence, she was sleeping in her house when she woke on hearing sound of breaking the door of staircase leading to roof of her house and she found that ten to twelve dacoits had entered the house and they were flashing torches and she herself was carrying a lantern and dacoits snatched ornaments from her body as well as from the body of her daughter Asha Kumari. She has claimed to have identified dacoits in the light of torches and lantern. In para-2 of her evidence, she has said that in test identification parade, she identified appellants Mahendra Ahir and Jai Ram Ahir and Dudhnath Nat (since dead ). In para-6 of her cross-examination, she has said that she had gone to Sasaram twice for attending test identification parade and officer-in-charge of Suryapura Police Station had accompanied her to Sasaram on both the occasions. She has further said that on one occasion, she identified dudhnath Nat (since dead) and when she attended test identification parade second time, suspects were put in one line consisting of thirty six persons. This admission by her shows that test identification parade was not conducted according to prescribed procedure. Uma Singh (PW 3) has said that at the time of occurrence, he was sleeping in his house and he woke up on hearing hulla and he then went on the roof of his house and started raising hulla that dacoity was being committed in the house of informant and when dacoits took away the articles from the house of informant, he went there but informant did not tell him about identifying any dacoit. He has been declared hostile by prosecution. 6. Considering the evidence on record, I find that except informant and his wife, there is no other witness on the point of dacoity in the house of informant although informant , in para-19 of his evidence, has stated that after the dacoits left the place of occurrence, 100-125 villagers came to his house. What to talk about non-examination of any villager, even Asha Kumari, daughter of informant from whose person as alleged, dacoits snatched her ornaments has not been examined. About appellant ramashish Choudhary who is named in the first information report, informant has admitted that he is his co-villager having his house near the house of informant and having his agricultural land adjacent south to the land of informant. Informant, in para-15 of his evidence, has said that before Investigating Officer, he had made statement that at the time of dacoity, a lantern was blowing in his house. Investigating Officer has not been examined in this case. About the lantern, he has said that dacoits took away that lantern also. Janki Devi (PW 6), in para- 5 of her evidence, has said that dudhnath Nat had taken away the lantern but at the time of identifying dudhnath Nat on 21.7.1986 in test identification parade, Janki Devi (PW 6) did not disclose that Dudhnath Nat had snatched lantern and she simply said that at the time of occurrence, he was armed with a Danda and was taking out the articles. Appellants Sheo Muni chamar and Jagdish Dusadh have been identified by informant only. Similarly, appellant Jai Ram Ahir has been identified by Janki Devi only and not by informant although on the same day when Jai ram Ahir was identified by Janki Devi, informant also participated in test identification parade. It is only appellant mahendra Ahir who has been identified by informant and his wife. So, I find that except appellant Mahendra Ahir, the case of appellants Jai Ram Ahir, Jagdish dusadh and Sheo Muni Chamar is a case of single identification in test identification parade. Remaining two appellants, namely, Ramashish Choudhary and rajgrahi Dusadh are named in the first information report and out of them, as stated above, appellant Ramashish Ahir is the neighbour of informant. 7. Remaining two appellants, namely, Ramashish Choudhary and rajgrahi Dusadh are named in the first information report and out of them, as stated above, appellant Ramashish Ahir is the neighbour of informant. 7. Considering the entire evidence on record, I find that non-examination of any independent witness, the admission of informant and his wife that on the dates when they attended test identification parade, police had come with them to Sasaram Jail where test identification parade was held and the manner in which suspects were put in test identification parade showing that it was not according to procedure, I find that the case of prosecution against appellants becomes quite doubtful and it cannot be said that prosecution has proved its case against appellants beyond all reasonable doubts. 8. In the result, all these appeals are allowed and the judgment and order of Court below convicting and sentenc-ing the appellants is hereby set aside and appellants are acquitted. 9. As the appellants are on bail, they are discharged from the liabilities of their bail bonds. Appeal allowed.