JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence passed by the II Additional Sessions Judge, Shivpuri (MP) in ST No.105A/99 and ST No.106/97, by which the appellant has been convicted under section 395 read with sections 397 and 398 of IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 500/- with default stipulation. 2. The case of the prosecution, in short, is that on 2.4.1997 at about 12:30, cashier of State Bank of Indore, Branch Pohri, Praveen Kumar, security guard Sakharam and peon Harcharanlal were going to Pohri after withdrawing an amount of Rs. 7,00,000/-, which were in the shape of bundles of Rs. 50/-, in a bus which belongs to Ashok Travels. Near Sirsod police station, a truck came from the back side of the bus and obstructed the way. Two persons after getting down from the truck, entered into the bus. They were armed with deadly weapons like Katta, revolver etc. Three persons were already sitting in the bus and they were also armed with deadly weapons. They snatched the box containing the currency notes and also snatched the 12 bore gun which was kept by the security guard. When he tried to obstruct the miscreants, they fired from the gun and the fire hit on his leg. Miscreants ran away after taking the gun from the security guard alongwith cash amount. Praveen Kumar immediately lodged the report before the police station, Sirsod, on which crime No.34/97 was registered. The intimation of the incident was given by police station, Sirsod to Superintendent of Police, Shivpuri and Police Station, Pohri. SP, Shivpuri, police Pohri, SDO (P) Pohri and police, Sirsod chased the miscreants and near village Jhiri, in the forest, co-accused Vishal, Mukesh, Nasir Khan, Vinod alongwith appellant Ashwini Bhatt [who absconded later on] were found with arms and robbed currency notes. The remaining recovery of notes was made on the basis of the memorandum recorded by Virendra Singh Tomar (PW 8). Miscreants also fired towards the SP, Shivpuri and the police party. For this, Dehati Nalisi was written, on the basis of which crime No.35/97 was registered by Police Station, Sirsod. The remaining recovery of notes was made on the basis of the memorandum recorded by Virendra Singh Tomar (PW 8). Miscreants also fired towards the SP, Shivpuri and the police party. For this, Dehati Nalisi was written, on the basis of which crime No.35/97 was registered by Police Station, Sirsod. In both the crimes, investigation was done by the police and a case under sections 395, 397, 398, 120(b) of IPC and 25 and 27 of the Arms Act was registered under the crime No.34/97 and a case under sections 147,148, 149, 307 of IPC and 25 and 27 of the Arms Act under the Crime No.35/97. 3. In both the crime numbers, the trial Court conducted the joint trial and the appellant was tried in ST No.105-A/99 and ST No.106/97 and convicted as stated in para one of this judgment but he was acquitted of the charges under sections 148, 307 and in the alternative 307 read with section 149 of IPC. 4. Appellant was absconding, therefore, his trial was conducted separately. The co-appellants were tried jointly and have been convicted and sentenced together in the connected criminal appeals which are Criminal Appeal No. 266/2000 [Vinod Kumar alias Lala v. State of M.P.], Criminal Appeal No. 272/2000 [Vishal Pathak alias Sonu v. State of M.P.], Criminal Appeal No. 309/2000 [Mukesh Sharma alias Raja v. State of M.P.] and Criminal Appeal No.390/2000 [Nasir v. State of M.P.]. 5. Counsel appearing on behalf of the appellant submits that the trial Court has not appreciated the evidence properly because recovery was not proved according to the memorandum recorded by the investigating officer. TI parade had not been made during the investigation. First Information Report is ante-dated and the independent witnesses have not supported the prosecution case. Further, none of the passengers of the bus was examined by the prosecution and it is also submitted that during the examination of the prosecution witnesses, the eye-witnesses namely Praveen Kumar (PW 6), security guard Sakharam (PW 4) and peon Harcharanlal (PW 3) had not identified the appellant till the time of their evidence. Therefore, it is not established that the appellant was present at the time of alleged commission of the offence. 6. Therefore, it is not established that the appellant was present at the time of alleged commission of the offence. 6. In reply, learned counsel for the State submits that although, test identification parade was not conducted during the course of investigation but the appellants had been chased soon after the incident and they were caught near village Jhiri by the police and some amount and weapons were recovered on the spot and the remaining amount was also recovered on the basis of the memorandum recorded by the police and the total amount which was recovered in cash is Rs. 6,60,000/-. Therefore, it is not true that the recovery of the amount exceeded of the actually robbed from the bus. He denied that the first information report, recovery and memorandum were prepared falsely and he supported the judgment rendered by the trial Court and also the conviction of the appellants. 7. Praveen Kumar (PW 6) deposed that on 2.4.1997 he was posted as cashier in the State Bank of Indore, Branch, Pohri. On that day, he had come to his Shivpuri Branch for withdrawal of Rs. 7,00,000/-. After withdrawing Rs. 7,00,000/- from the Shivpuri Branch of State Bank of Indore, which were in the shape of bundles of Rs. 50/- and kept in an iron box, he along with the security guard Sakharam (PW 4) and peon Harcharanlal (PW 3) was going back to Pohri Branch by the bus of Ashok Travels. Both these witnesses were also sitting in the bus alongwith him. When the bus went ahead from Police Station, Sirsod, one truck overtook the bus and obstructed it. Two-three persons got down from the truck and entered into the bus. They were having gun and katta (country made firearm) in their hands. The passengers who were sitting in the bus started getting down from the bus. Two-three persons who were already sitting in the bus were also having gun and katta with them. They pushed him from the bus and snatched the box containing cash from the security guard. When the security guard objected, one miscreant fired on him. The bullet caused injury to his leg. The miscreants took away the box containing cash. He immediately went to the police station, Sirsod and lodged the FIR. Then he went to the Shivpuri hospital alongwith security guard Sakharam (PW 4) for his treatment. When the security guard objected, one miscreant fired on him. The bullet caused injury to his leg. The miscreants took away the box containing cash. He immediately went to the police station, Sirsod and lodged the FIR. Then he went to the Shivpuri hospital alongwith security guard Sakharam (PW 4) for his treatment. In Para 4 of the statement, the witness told that the persons who had entered into the bus after getting down from the truck were of 18-20 years of age and the persons who were already sitting in the bus were also of the same age group but he could not identify the appellant whether the appellant was alongwith the miscreants or not. He admitted his signatures in Ex. P-4, the first information report. In cross-examination, the witness deposed that he reached the police station after five minutes of the incident. In Para 7, he denied that the police had called him to identify the accused. 8. Sakharam (PW 4), the security guard of the Pohri Branch of State Bank of Indore, corroborated the story as narrated by Praveen Kumar (PW 6) regarding the snatching of the cash-box by the miscreants but in Para 4 of his statement he could not identify the appellant whether he was present at the time of dacoity or not. But he deposed that the age of one of the miscreants was in between 17-18 but the range of age of rest of the miscreants were of 25-35 years. 9. Harcharanlal (PW 3), the peon of the Pohri branch of State Bank of Indore, also gave the similar statement about the incident but he has not stated anything about the identification of the appellant in the Court. 10. Now, the second set of evidence who chased the miscreants are Nasir Hasan (PW 1), the driver of the SP, Shivpuri and Tularam (PW 2) who was posted as constable at Police Station Sirsod who were examined by the prosecution. Apart from the above, Arun Pratap Singh (PW 7), SP Shivpuri and Virendra Singh Tomar (PW 8), TI Sirsod who also investigated the crime were also examined by the prosecution. 11. Nasir Hasan (PW 1) deposed that at about 4:00 p.m., SP informed him about the incident and he took him towards Pohri Road. On getting the information at wireless set, he started moving ahead on Pohri Road with SP, Shivpuri (PW 7). 11. Nasir Hasan (PW 1) deposed that at about 4:00 p.m., SP informed him about the incident and he took him towards Pohri Road. On getting the information at wireless set, he started moving ahead on Pohri Road with SP, Shivpuri (PW 7). When they moved ahead two furlong from the Sirsod Police Station, on the left side of the road, the bus of Ashok Travels was standing and the cleaner of the bus informed that the miscreants fled away to the right side. On getting information on the wireless set that the miscreants fled away towards village Jhiri, he alongwith SP Shivpuri moved towards Jhiri Road. After moving ahead just 3 kms, five persons were seen in the field of Jhiri as has been informed on the wireless set. When SP, Shivpuri, got down from the vehicle and were at the distance of 20 feet, one of the miscreants fired towards the SP and police party. One of the miscreants who was hiding his presence behind to bushwood ¼>kM+h½ fired from Katta on the police party. On this SP warned them to surrender. Then both of the miscreants surrendered before the SP Shivpuri. SDO (P), Pohri also reached the spot and about 200 meters away two miscreants were also found who were hiding their presence behind the bushwood and they were caught by the police. Out of two miscreants, one was Ashwini Bhatt who is the appellant in this case. All the miscreants were having bundles of notes of Rs. 50/- in their pockets. Some amount was recovered from the personal search and the remaining amount was seized behind the bushwood. Later on, Virendra Singh Tomar, TI Sirsod, also came there. 12. Virendra Singh Tomar (PW 8), TI Sirsod, deposed that he investigated the matter and prepared the spot map and also written FIR Ex. P-4. He also informed about the incident to the SP, Shivpuri and SDO(P), Pohri. Then the police party went towards village Jhiri to chase the miscreants. He also moved towards village Jhiri alongwith the police party. When he reached the spot, he arrested the appellant alongwith other co-accused. In Para 5, the witness deposed that from the possession of the appellant Rs. 20,000/- cash, which were in the shape of four bundles of Rs. Then the police party went towards village Jhiri to chase the miscreants. He also moved towards village Jhiri alongwith the police party. When he reached the spot, he arrested the appellant alongwith other co-accused. In Para 5, the witness deposed that from the possession of the appellant Rs. 20,000/- cash, which were in the shape of four bundles of Rs. 50/-, was recovered alongwith one 12 bore katta (country made fire-arm), one live cartridge, one fired cartridge and one knife vide seizure memo is Ex. P-6. The arrest memo is Ex. P-5. On the information given by appellant regarding the amount as it was hided in the bush-wood (Jhadi) of the field, the memorandum was recorded which is Ex. P-7 and the recovery of Rs. 1 lac, in the form of bundles of Rs. 50/-, was made vide seizure memo Ex. P-8. 13. Counsel for the appellant submits that the testimony of Praveen Kumar (PW 6) is not reliable because he has not identified the appellant in the Court nor was the TI parade held during the investigation. In this regard, he relied on Ravi Sharma v. State of M.P. reported in [1991 (I) MPWN 176] in which it is laid down that the conviction cannot be based on solitary evidence of complainant who is not truthful. 14. On the point of identification, it is submitted by the counsel for the appellant that in this case, there is no evidence regarding the identification against the appellant because both Praveen Kumar (PW 6) and Sakharam (PW 4) have not identified the appellant in the Court also. Harcharanlal (PW 3) has not stated anything about the identification in the Court. He also submits that the recovery which was made on the basis of memorandum was also not reliable and not supported by the independent witnesses. In support of the above contention he relied on State of M.P. v. Jagdish and others, reported in 1991 CCrJ NOC 40, Indar Singh v. State of M.P., reported in 1997 (I) MPWN 57, State of M.P. v. Rajbahadur Singh and another, reported in 1997 (1) Vidhi Bhaswar 242 and State of M.P. v. Sheikh Mohammed, reported in 1997 (II) MPWN 5. 15. 15. The main submission of the learned counsel for the appellant is that the recovery is not proved and due to want of test identification parade and failure to identify the appellant in the Court, the offence against the appellant is not proved. In this case, the test identification parade was not conducted by the police during the course of investigation. 16. Identification in Court is substantive piece of evidence but in the Court the witnesses could not identify the appellant. Due to want of identification, the subsequent conduct cannot be a relevant factor for conviction. 17. In this case, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt because the first information report is not named and only the description of the miscreants was given. Further, the police has not conducted any test identification parade during the course of investigation and in the doc identification also both the witnesses Praveen Kumar (PW 6) and security guard Sakharam (PW 4) could not identify the appellant. Therefore, looking to the totality of the circumstances and considering the evidence regarding identification, it appears that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Hence, the appellant is entitled for benefit of doubt. 18. Therefore, the judgment of conviction and sentence passed by the trial Court is hereby set-aside. The appeal is allowed accordingly. If the amount of fine is realized, it be returned to the appellant. The bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court for necessary compliance.