JUDGMENT R. N. BISWAL, J. : The State of Orissa assails the judgment and order dated 7.8.1992 passed by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Sundergarh in S.T. No.140/7 of 1991 acquitting the respondents of the charge under Section 395 of I.P.C. 2. Succinctly stated, prosecution case is that on 25.3.1991, at about 9.00 P.M. after making dinner, the informant (P.W.2), slept in a room of his house while his father, mother (P.Ws. 3 and 1 respectively) and sister slept on the verendah. At about 1.00 A.M. hearing a thud on the door, when P.W.2 opened it, two of the accused persons rushed to his room and placing a bhujali each on his neck, threatened him to do away with his life, if at all he raised hullah. In the meantime, P.Ws. 1, 3 and their daughter got up. Some of the accused persons demanded the key from P.W.3 and asked him to show them the golden Lota and when there was no response, they started assaulting him; so out of fear, he opened the lock of the room where paddy had been stacked. In the meantime, they also took P.W.2 to that room and asked him about the golden Lota. When both P.Ws. 2 and 3 denied to have possessed any such Lota, the miscreants took them to the bed room of P.W.2 and assaulted them with ‘bhujali’ and tamarind twigs, causing bleeding injuries. Since the accused persons started assaulting P.W.3, out of fear, he handed over Rs.1,000/-, one pair of golden ear ring (karna fulla), one silver chain, and one silver armlet to them. Sometime thereafter, they opened the shop room of P.W.2 and packed some mixtures, biscuits, cigarette packets, tooth paste tubes etc. in a plastic bag and confining P.Ws. 2 and 3 in one room, chained the door from outside and decamped with the booty. It is further alleged that while decamp¬ing, they also took away one electronic key ring, one radio and one torch light. P.W.1 unchained the room where P.Ws. 2 and 3 were confined, whereafter P.W.2 informed the incident over phone to P.W.17, the O.I.C. of town Police Station, Sundergarh. On receiving the telephonic call, P.W.17 along with his staff rushed to the spot, where P.W.2 orally reported the incident before him, who reduced the same into writing. P.W.1 unchained the room where P.Ws. 2 and 3 were confined, whereafter P.W.2 informed the incident over phone to P.W.17, the O.I.C. of town Police Station, Sundergarh. On receiving the telephonic call, P.W.17 along with his staff rushed to the spot, where P.W.2 orally reported the incident before him, who reduced the same into writing. Treating the report as F.I.R., P.W.17 took up investigation, in course of which, he examined some witnesses in the self-same night, prepared the spot map and returned to the Police Station with his staff and registered the case under Section 395 of the I.P.C. On the day break, he sent both the injured persons (P.Ws. 2 and 3) to the hospital and examined some other witnesses. On apprehending the accused per¬sons, he arrested them, forwarded them to Court, seized some incriminating materials and after completion of investigation finding a prima facie case, submitted charge sheet under Section 395 of the I.P.C. against them. 3. The case, on being committed to the Court of Session, was transferred to the Court of Chief Magistrate-cum-Assistant Sessions Judge, Sundergarh for trial. The accused persons were charged under Section 395 of I.P.C. and on denial of the charge, faced the trial. In order to establish its case, prosecution examined 17 witnesses as against none by the defence. 4. After assessing the evidence on record, the trial Court held that there was a dacoity in the house of P.Ws. 1 to 3 in the night of 25/26.3.1991, but there was no sufficient material against the accused persons showing their involvement in the said dacoity and as such, acquitted them of the charge under Section 395 of the I.P.C. 5. As stated earlier, being aggrieved by the said order of acquittal, the State of Orissa, has preferred the present appeal. During pendency of the appeal, respondent Bipin Bihari Pradhan expired, for which, the appeal abated against him. 6. Learned Additional Standing Counsel submitted that even though there was overwhelming evidence against the accused per¬sons (hereinafter referred to as ‘respondents’), the trial Court erroneously acquitted them. As per his submission, the evidence of the eye witnesses to the occurrence coupled with the seizure of incriminating materials and the fact that P.W.2 correctly identified them in the T.I. parade were sufficient to hold that the respondent were guilty of the charge under Section 395 of the I.P.C. P.Ws. As per his submission, the evidence of the eye witnesses to the occurrence coupled with the seizure of incriminating materials and the fact that P.W.2 correctly identified them in the T.I. parade were sufficient to hold that the respondent were guilty of the charge under Section 395 of the I.P.C. P.Ws. 1, 2 and 3 claimed to be eye witnesses to the occur¬rence. On perusal of their evidence, it is found that two of the miscreants guarded P.W.2 in his bed room and some others guarded P.W.3, while he was asleep in his cot. They demanded to show them the golden Lota and assaulted them causing bleeding injuries. Then they took away cash, gold and silver ornaments, one radio, one torch light and one electronic key ring and while decamping broke open the shop room and took away biscuits, mixture, tooth paste, etc. As stated earlier, the trial Court held that there was a dacoity in the house of the informant in the alleged night of occurrence, but it acquitted all the respondents since prose¬cution failed to prove beyond reasonable doubt that they were involved in the said dacoity. F.I.R. does not reveal the name of any of the respondents. As stated by P.W.3, Guru Bhaisal (re¬spondent No.5) was known to him earlier. If it was so, he was expected to disclose his name to other eye witnesses including the informant and in that event the informant would not have omitted to name him in the F.I.R. Admittedly, the occurrence took place during night time. While being examined in chief before the trial Court, P.W.3 deposed that an electric bulb of 100 K.W. was illuminating on the verendah during the operation of dacoity, but in cross-examination, he fairly admitted to have not stated so, before the I.O. So this part of his evidence cannot be relied upon P.W.1 deposed that out of fear, P.W.2 did not come out of his room in which he was sleeping. She further deposed that none of the respondents was among the dacoits during the commission of dacoity in her house. Of course in the same breath she stated that she was not able to say whether they were there in her house at that time. She failed to say the number of dacoits. So the evidence of P.W.1 is of no help to the prosecution. Of course in the same breath she stated that she was not able to say whether they were there in her house at that time. She failed to say the number of dacoits. So the evidence of P.W.1 is of no help to the prosecution. As regards P.W.2, it is found from his evidence that except with regard to respondent Harachand Khilei, he could not say the physical fea¬tures of any other respondent. He could not say about the dresses they had put on during the commission of dacoity. P.W.2 stated that Harachand Khilei and Bipin Bihari Pradhan (since dead), threatened him not to raise hullah, showing him a ‘bhujali’. But he did not state before the I.O. while being examined under Sec¬tion 161 Cr.P.C. that he could identify them if they were shown to him. 7. Learned Additional Government Advocate further submit¬ted that as found from the evidence on record, while respondent Guna was in police custody, he confessed his guilt before the I.O. and others and stated that he had concealed the stolen kana phula in his house and that he would show the same, and so saying led them to his house and pointed out a pair of golden kana phulla (M.O.1) concealed in his house and gave recovery of the same. Similarly, he confessed that he gave a Philips radio, which fell to his share to Duryodhan Nayak of Bukharpada (P.W.VII) and led the police personnel to his house wherefrom the radio was recovered. So, the trial Court ought not have acquitted him. On perusal of evidence of P.W.17, the I.O., it is found that while accused Guna @ Gagan Bihari was in police custody, he confessed to have committed the offence and to have kept concealed a pair of golden ear-top in his house, and so saying led the police person¬nel to his house and gave recovery of the same to the I.O. which he seized under seizure list Ext.5. Then P.W.17 proceeded to village Bijilikhaman and on production of a Philips radio (M.O. VIII) by Duryodhan Nayak (P.W. 7), he seized the same in present of witnesses under Ext.6. Then P.W.17 proceeded to village Bijilikhaman and on production of a Philips radio (M.O. VIII) by Duryodhan Nayak (P.W. 7), he seized the same in present of witnesses under Ext.6. On perusal of the evidence of P.W.5, it is found that on 28.4.1991, being asked by the I.O., he went to the house of respondent Guna @ Gagan Bihari and in his presence Guna brought a pair of ear rings from a Mancha and produced the same before the police. There is nothing in his evidence to show that accused Guna confessed to have committed the offence and to have concealed the golden ear rings in his house. During cross-examination, P.W.5 stated that police showed him M.O.1 in the house of Guna. So, it appears that he had not seen Guna bringing the same from the Mancha of his house. P.W.6 stated before the trial Court that respondent Guna gave a Philips radio to Duryod¬hana Nayak of village Bijilikhaman which is about 8 K.Ms. away from this village. The I.O. recovered that radio from the house of Duryodhana Nayak in his presence in a midnight. Except the bare statement that respondent Guna @ Gagan Bihari made over the radio to Duryodhana Nayak, there is nothing in his evidence with regard to date, place and circumstances under which he gave that radio to Duryodhana. On other hand, it transpires from the evi¬dence of P.W.7 (Duryodhana) that Jayanti Luharani of village Badkachhar gave the radio to him which was recovered from his house. He further stated that he did not know Guna @ Gagan Bi¬hari. So, Section 27 of the Indian Evidence Act can be of no help to the prosecution. 8. It transpires from the evidence of the I.O. that on 5.4.1991 he apprehended the respondent Harachand Khilei and recovered one electronic key ring fitted with one medium Nicco battery and a Bhujali from his person and seized the same under seizure list Ext.15. He also recovered two Colgate tooth paste tubes, one vizil soap, one lux soap and one coconut oil tin (parachute) from the house of respondent Surendra Pradhan and seized the same under seizure list Ext.16. On search of the house of respondent Bhata Munda, he recovered a pair of Paunja, a silver waiste chain, one silver arm-let and one Eveready torch light and seized the same under seizure list Ext.7/1. On search of the house of respondent Bhata Munda, he recovered a pair of Paunja, a silver waiste chain, one silver arm-let and one Eveready torch light and seized the same under seizure list Ext.7/1. He searched the house of Bipin Behari Pradhan and recovered one Bhujali, a Colgate tooth paste tube and one coconut oil tin, two lux soaps and seized the same under seizure list Ext/17. It further tran¬spires from the evidence of the I.O. that on 6.4.1991, he recov¬ered a vizil soap one lux soap, one colgate tooth paste tube and a tooth brush from the house of respondent Guru Bhaisal and seized the same under seizure list Ext.18. But the evidence of the I.O. with regard to seizure of any incriminating material from the appellants Harachand Khilei, Surendra Kumar Pradhan, Bhata Munda, Bipin Bihari Pradhan and Guru Bhaisal has not been corroborated by any independent witness. So the seizure of the same is not of much help to the prosecution. 9. Coming to the Test Identification parade, it is found from the evidence of P.W.9, the then J.M.F.C., Sundargarh, that on 8.4.1991 he conducted T.I. parade in respect of suspects Harachanda Khillei, Bhattu Munda, Bipin Pradhan, Guru Bhaisal, and Surendra Pradhan inside the District Jail, Sundargarh after observing all formalities as far as practicable. P.W.2 correctly identified all the suspects stating that respondents Bipin (since dead) was standing near him and other suspects were moving hither and thither inside his house. It further transpires from his evidence that P.W.2 stated before him that all the suspects had put on pants and shirts in course of commission of dacoity. But as stated earlier it is found from the evidence of P.W.2 that, except with regard to respondent Harachanda Khillei he could not say the physical features of any other respondents. He could not also say about the dress they had on during the commission of dacoity. On perusal of the evidence of P.W.10, the then J.M.F.C., Sundargarh it is found that on 10.5.1991 he conducted T.I. parade in respect of suspects Gagan Bihari Bag inside the district jail of Sundargarh P.W.2 correctly identified the suspects stating that he placed a ‘bhujali’ on the back of his neck. On perusal of the evidence of P.W.10, the then J.M.F.C., Sundargarh it is found that on 10.5.1991 he conducted T.I. parade in respect of suspects Gagan Bihari Bag inside the district jail of Sundargarh P.W.2 correctly identified the suspects stating that he placed a ‘bhujali’ on the back of his neck. During cross examination, P.W.10 stated that P.W.2, stated before him that the nick name of the suspect was Guna and he had a black spot on his right eye, but neither in the F.I.R. nor in his statement under Section 161 Cr.P.C., P.W.2 had stated so. It transpires from the evidence of P.W.8 that the I.O. asked P.W.2 to identify all the respondents, except Gagan while all of them were in the Police Station. So evidence of P.Ws 2, 9 and 10 with regard to identifi¬cation of the respondents in T.I. parade lost its significance. Moreover, T.I. parade being not a substantive piece of evidence, conviction cannot lie basing on such evidence. It is confirmatory in nature only. As stated earlier there is no sufficient material to hold the respondent guilty of the offence under Section 395 of I.P.C.. So the Trial Court rightly held them not guilty of the offence under Section 395 of I.P.C. Accordingly the appeal stands dismissed. Appeal dismissed.