Judgment Chandra Mohan Prasad and Dharnidhar Jha JJ. 1. Both the appeals arise out of the same judgment of conviction and sentence. Accordingly, they were heard together and are being disposed of by this common judgment. 2. So far Cri. Appeal No. 273 of 1992 is concerned, it is against the judgment of conviction dated 8.9.1992 and order of sentence dated 14.9.1992 of the 7th Additional Sessions Judge, Rohtas at Sasaram passed in Sessions Trial No. 347 of 1981 whereby each of the two appellants was convicted under Section 396 of the Indian Penal Code and sentenced to R.I. for ten years. 3. So far Govt. Appeal No. 10 of 1993 is concerned, it appears that it was filed challenging the aforesaid judgment of the Trial Court whereby respondents Sheo Bhachan Chamar, Ram Surat Mushar and Satendra Singh were acquitted of the charge under Section 396 of the Indian Penal Code and respondents Dasai Dusadh, Puranmashi Bind and Lal Mohan Bind were acquitted of the charge under Section 412 of the Indian Penal Code. It appears from record of the Govt. appeal that appeal of Rameshwar Mushar, Satyendra Singh, Puranmasi Bind and Lal Mohan Bind stood dismissed in default on 8.8.2007 and the appeal against respondent Dasai Dusadh abated.due to his death vide order dated 21.11.2007 and thus the Govt. Appeal No. 10 of 1993 survives only against the respondent Sheo Bachan Chamar. 4. Briefly stated the case of prosecution as stated in the fardbeyan of the informant Basudeo Pandey (P.W.4) as recorded by police in the mid-night on 7/8-4-1980 at 00.05 hrs. was that in the preceding evening at 7 P.M. while the informant was in his Khalihan and his elder brother Shri Ram Pandey (P.W.1.) was giving fodder to two oxen at Darwaja of his house, Sheo Bachan Chamar, who was the son-in-law of Jageshwar Chamar of his (informants) village came there and asked Shri Ram Pandey whereabouts of Ram Bachan but Shri Ram Pandey replied that he did not know his whereabouts. The inforrnmant further stated that in the meantime, five criminals armed with fire-arms came there and ordered to assault where upon Shri Ram Pandey fled away towards North. The inforrnmant further stated that in the meantime, five criminals armed with fire-arms came there and ordered to assault where upon Shri Ram Pandey fled away towards North. The informant also stated that he concealed himself in a bamboo clumps there and saw that two of the criminals carrying gun remained outside the house and other five criminals entered into the house and the criminals were abusing inmates of the house. He (informant) also heard sound of firing. The criminals remained there for about one and half hrs. and committed loot of the articles and they had also shot his (informants) younger brother Sita Ram Pandey dead by shooting him inside the house. It was also alleged that after occurrence when the informant went into the house, he learnt from his wife, Bhabhi, niece and other lady inmates of the house that the criminals had snatched their ornaments and they were also demanding keys from his (informants) mother and that when she refused to give the keys to them they had assaulted her with butt of gun on her head and also dashed her throwing her down on the cot there. The informant did not name any other criminals but he gave description of the criminals by describing the cloths they had worn and the articles looted were also mentioned in the fardbeyan. About cause of occurrence, the informant stated that, that year in the matriculation examination his younger brother (deceased) had some quarrel and scuffle with Rama Kant and Ramashish of the village in connection with the examination, hence, he (informant) suspected that these two persons might have got the occurrence committed due to that grudge. 5. On the basis of fardbeyan the F.I.R was registered and investigation commenced. ft appears that during investigation some suspects were put on T.I.P. and in that T.I.P the appellants Paras Musahar and Sheo Murat Musahar were identified by P.Ws.3 and 4 Jawala Pandey and Basudeo Pandey (informant). On conclusion of investigation, charge sheet was submitted and appellants as well as the O.P. Sheo Bachan Chamar were put on trial wherein the appellants Paras Musahar and Sheo Murat Musahar along with Ram Janam Chamar (who did not filed any appeal) were convicted. 6. As many as 12 witnesses were examined by prosecution. P.W.1. Shri Ram Pandey, the elder brother of the informant, P.W.3. 6. As many as 12 witnesses were examined by prosecution. P.W.1. Shri Ram Pandey, the elder brother of the informant, P.W.3. Jawala Pandey the cousin of the infomant and P.W.4 Basudeo Pandey,informant himself has been examined as eye-witnesses to the occurrence. P.W.2. Baldeoji Pathak and P.W.7. Radhey Shayam Pathak are the seizure witnesses with respect to recovery of some articles from some other accused who are not concerned with this appeal. P.W.6. Sheo Dayal Paswan is the constable who had produced the recovered articles before the Court during trial. P.W.5. Sheo Dayal Singh is formal witness. P.W.8. LalBahadur Singh is the Sub-Registrar who had conducted the T.I.P. oi the appellants. P.W.9. Rama Kant Pandey and P.W.10.Kameshwar Singh are the witnesses who deposed to have come to the P.O. after the occurrence and to have seen the articles in the house scattered. P.W.11.Harihar Dubey is the f.O who conducted investigation till 14.6.1980. P.W.12. Jagarnath Jha is the another I.O. who conducted investigation after 14.6.1980 till conclusion of the same. In this case the P.Ws. 1,2 and 4 are the material witnesses to be discussed as they have claimed to be the eye witnesses of the case but before entering into discussion of these witnesses it is proper to discuss the evidence of the I.O. with respect to some objective evidence as found by him during investigation. It is also proper to dis cuss the evidence of Sub-Registrar who had conducted the T.I.P in order to learn about the circumstances in which the identification of the criminals was made by the witnesses. 7. P.W.11 Harihar Dubey, who had inspected the P.O. deposed that in the North corner outside of the P.O. house Nad for feeding cattle was found fixed and 15 yards West of that place bamboo clump was found situated. it is important to notice here that the P.Ws.1. and 4 have claimed to have identified the criminals while they had kept themselves concealed in the bamboo clump and the P.W.3. claimed to have identified the criminals while concealing himself in the heap of straw in the Khalihan which according to the evidence of the P.W.3. at para-10 was situated at a distance of 25-30 yards from the house. P.W.11. Harihar Dubey at para-6 of his evidence stated that P.W.1. claimed to have identified the criminals while concealing himself in the heap of straw in the Khalihan which according to the evidence of the P.W.3. at para-10 was situated at a distance of 25-30 yards from the house. P.W.11. Harihar Dubey at para-6 of his evidence stated that P.W.1. Shri Ram Pandey has not stated the name of Sheo Bachan Chamar (O.P. in Govt.Appeal) before him and that he (P.W.1.) had not stated the name of any of the criminals before him. 8. P.W.11. Harihar Dubey, is the another I.O. who deposed at para-1 that he had searched the house of appellant Paras Musahar on 23.8.1980 but he had not found anything incriminating there. He also deposed that Paras Musahar and Sheo Murat Musahar were arrested in the village on the same day. Thus, the appellants were arrested in the village which shows they had not absconded from the village after the occurrence. At para-3 of his evidence the I.O. further deposed that the informant (P.W.4.) had simply stated before him that he had identified Sheo Bachan Chamar but he had seen the faces of the criminals at the time when they were fleeing away and that he had seen Sheo Bachan Chamar while he (Sheo Bachan Chamar) was going away with gunny bag on his head. Thus, the very important circumstances in which the identification of the criminals is claimed and the manner in which they have been identified and their overt acts in course of the commission of offence have not been stated by the informant before the i.o. 9. The i.O. Jagarnath Jha (P.W.12.) also stated that Jawala Pandey (P.W.3.) had not stated before him that he (P.W.3.) had seen Sheo Bachan Chamar fleeing away with a gunny bag on his head and that Sheo Bachan Chamar had entered into the house with other criminals. 10. P.W.8. Bahadur Singh who had conducted the T.I.P. deposed that he had conducted the T.I.P. on 16.8.1980 and that in that T.I.P. P.Ws.3 and 4 had identified the appellants. This witness also says that he had prepared the T.I.P. chart which has been marked Ext. 8/2. In his evidence this witness simply states that the P.Ws.3 and 4 had identified the two appellants as the criminals but this witness does not mention about the manner and connection in which the witnesses identified the appellants. This witness also says that he had prepared the T.I.P. chart which has been marked Ext. 8/2. In his evidence this witness simply states that the P.Ws.3 and 4 had identified the two appellants as the criminals but this witness does not mention about the manner and connection in which the witnesses identified the appellants. The T.I.P. chart (Ext.8/2) is in a prescribed format in which there are prescribed column with prescribed instruction in the respective columns. The column no. 7 is the column where the identification by the witnesses has to be mentioned and there is specific instruction printed in the column that it has to be specified that the identification was made in what connection e.g. as a member of the mob or carrying a sword or doing any particular act. Thus, this is requirement under law that while identifying the criminals the witnesses will not simply identify him but he must indicate the connection in which the identification was made by way of describing the part which was being played by that accused at the time of occurrence. But on going through facts and circumstances in which the identification of the appellants has been made by P.Ws.3. and 4, we find that witnesses have failed to disclose about the manner and the connection in which the identification was made and the identification has been made without disclosing the particular role played by the accused in the commission of offence. 11. P.W.1 Sri Ram Pandey stated in his evidence that Sheo Bachan Chamar (O.P.in Govt.Appeal) had come to him and he had enquired about Ram Bachan and that at that time othercriminals also come but as soon as the criminals came he fled away and concealed himself in the bamboo clump there. Thus this witness has fled away as soon as the criminals came there and concealed himself in the bamboo clumps which according to the evidence of the I.O. (P.W.11.) at para-1 was at a distance of 15 yards i.e. 45 fts. from the Nad from where he had fled away and concealed himself into the bamboo clump. The identification is also claimed while keeping himself concealed in the bamboo clump. The time of occurrence as mentioned in the fardbeyan is 6 P.M. and as stated by the informant (P.W.4. from the Nad from where he had fled away and concealed himself into the bamboo clump. The identification is also claimed while keeping himself concealed in the bamboo clump. The time of occurrence as mentioned in the fardbeyan is 6 P.M. and as stated by the informant (P.W.4. at para-2) at 7 P.M. Thus, the claim of identification is made at a time between 6 to 7 P.M. and that from the distance to 45 fts in a condition while keeping concealed in a bamboo clump. Naturally this would not have been bright day at that time, while concealing himself in the bamboo clump the P.W.1 must have felt him safe and secure there, so that the criminals may not locate him there and he remains out of sight. Keeping all the circumstances in mind, we find that the claim of identification as made by P.W.1 from a distance of 45 fts keeping himself concealed in a bamboo clump and at a time between 6 to 7 P.M. and further specially considering the circumstance that this witness does not explain the circumstance or the connection and the manner in which he identified the appellant, we are of the view that the claim of identification and the evidence of this witness adduced in that regard cannot be safely relied upon. This witness (P.W.1) has also named the O.P. Sheo Bachan Chamar saying that Sheo Bachan Chamar had come to him and he had enquired about Ram Janam but the I.O. (P.W.11 at para-6) has stated that this witness (P.W.1) had not stated before him the name of Sheo Bachan Chamar and that he (P.W.1) had not taken the name of any criminal. Thus, in the circumstance when the name of Sheo Bachan Chamar (O.P) was not disclosed to the I.O. shortly after the occurrence the claim of this witness about Sheo Bachan Chamar also become full of doubt. So far the O.P Sheo Bachan Chamar is concerned, the P.W.1 stated that he (Sheo Bachan Chamar) is the son-in-law of the Jageshwar Chamar whose house situated at a distance of 25-30 yards from his house and Jageshwar Chamar was working as agricultural labour in his house. So far the O.P Sheo Bachan Chamar is concerned, the P.W.1 stated that he (Sheo Bachan Chamar) is the son-in-law of the Jageshwar Chamar whose house situated at a distance of 25-30 yards from his house and Jageshwar Chamar was working as agricultural labour in his house. Thus Sheo Bachan Chamar was well known to this witness and naturally he must be well known to the other members of the family.The informant (P.W.4 at para-18) has deposed that some of the criminals had covered their faces. Thus, it is apparent that the criminals who felt risk of identification had covered their faces. Sheo Bachan Chamar was the man, who was well known to the family of the witnesses and the informant. There is no evidence that Sheo Bachan Chamar had covered his face. It is quite unexpected that Sheo Bachan Chamar who was well known to informant and the other witnessess will take risk of being identified. Keeping into mind these circumstances, we do not feel satisfied about the claim of this witness of having identified Sheo Bachan Chamar during occurrence. 12. P.W.3, cousin of the informant is another eye-witness and he deposed that after taking round of his agricultural land when he was approaching his house he saw the criminals at his door. He raised hulla but nobody came and the dacoits committed dacoity in the house for over one hour and they took away ornaments and articles and gun also. He also stated that he had seen Sheo Bachan Chamar going away with gunny bag on his head but the evidence of the I.O. (P.W.12 at para-4) is that this witness (P.W.3) had not stated before him that he had seen Sheo Bachan Chamar (O.P.) going with a gunny bag on his head. Thus, this witness (P.W.3) does not state before the I.O. about having seen Sheo Bachan Chamar going with a gunny bag on his head, therefore, the claims of this witness about having seen Sheo Bachan Chamar becomes doubtful. 13. This witness Jawala Pandey (P.W.3) stated that when the criminals came there he concealed himself into the heap of straw (at para-10 and 16) which was of human height and after fleeing away of the criminals he had entered into the house and had seen that dacoity had been committed. 13. This witness Jawala Pandey (P.W.3) stated that when the criminals came there he concealed himself into the heap of straw (at para-10 and 16) which was of human height and after fleeing away of the criminals he had entered into the house and had seen that dacoity had been committed. Thus this witness has claimed to have seen and identified the criminals from a distance while keeping himself concealed in the heap of straw and any means of identification is also not disclosed. Besides this, this witness has also failed to say about the circumstance or the particular role played by the appellants in connection of which he identified the two appellants. Keeping in mind all the circumstances the claim of identification of the appellants as made by the 3 is doubtful. 14. P.W.4 (informant) deposed that in evening at 7 P.M. while his brother Shri Ram Pandey (P.W.1) was feeding cattle at his Darwaja Sheo Bachan Chamar had.come and had asked him about Ram Bachan and at that time 8-10 other criminals armed with fire arms came there. He has also deposed that on arrival of the criminals he (P.W.4.) fled away from there and concealed himself into a bamboo clump. Thus, this witness claims to have identified the appellant while keeping himself concealed in the bamboo clump and according to the evidence of the I.O (P.W.11 at para-1) the bamboo clump is at a distance of 15 yards from the Nad fixed outside the house. Thus, the identification of the informant has been made in a situation while keeping himself concealed in the bamboo clump and that too from a distance of 45 fts. at 7 oclock and any means of identification is not being disclosed. Besides this, this witness also does not disclose about the circumstance or.the manner in which the identification was made. Considering these circumstances along with some other materials as discussed, we feel that the claim of identification of the appellants as made by this witness is also highly doubtful. 15. Besides this, there are some other circumstances also which go against the case of prosecution. Considering these circumstances along with some other materials as discussed, we feel that the claim of identification of the appellants as made by this witness is also highly doubtful. 15. Besides this, there are some other circumstances also which go against the case of prosecution. The informant (P.W.4) at para-3 deposed that after fleeing away of the criminals when he entered into the house he talked his mother, Bhabhi, wife, Bhawo and Bhagni who all stated to him that the dacoits were abusing them and they had also snatched ornaments from their persons and that dacoits were demanding keys from mother and when mother refused to hand over the keys the dacoits had assaulted her with butt of gun and had dashed her down on the cot there. Thus the lady inmates of the house had seen the criminals from close quarter and they had every opportunity to identify them. These lady witnesses would have been the best witnesses to identify the criminals but none of them was called to attend the T.I.P. and identify the suspect. The leaving of these ladies in the matter of T.I.P. goes highly against the prosecution. Prosecution has failed to bring most reliable evidence which could have been in the shape of identification of the appellants by the lady witnesses and there is not explanation for this. 16. Thus considering the facts and circumstances and the evidence on record as discussed above, we find that so far the appellants Paras Musahar and Sheo Murat Musahar are concerned, prosecution has not been able to prove charge beyond shadows of reasonable doubt and these appellants are entitled to benefit of doubt. Accordingly, by way of giving benefit of doubt these two appellants are acquitted of the charge. The conviction and sentence passed against them is hereby set aside. 17. This appeal is allowed. 18. From the record of the appeal, we find that vide order dated 11.11.1993 the appellants were noticed to show cause as to why their sentences be not increased. In view of the acquittal of the appellants, this rule issued for enhancement of sentence stands discharged. 19. So far the Govt. Appeal with respect of acquittal of Sheo Bachan Chamar is concerned, in view of the discussion made above, we feel that the same is also merit less, hence, the same is dismissed. 20. In view of the acquittal of the appellants, this rule issued for enhancement of sentence stands discharged. 19. So far the Govt. Appeal with respect of acquittal of Sheo Bachan Chamar is concerned, in view of the discussion made above, we feel that the same is also merit less, hence, the same is dismissed. 20. Let the part of present judnment in the form of its first and last page be tarnished to learned Amicus Curiae as requested by him for the purpose of submitting his bills for payment for assisting this Court as Amicus Curiae.