JUDGMENT Hemant Kumar Srivastava, J. Heard learned senior counsel, Sri Rajendra Prasad Singh for the appellants as well as learned Additional Public Prosecutor, Sri Sujeet Kumar Singh for the state and perused the record. 2. This Criminal Appeal has been preferred against the judgment of conviction dated 28-09-2000 and sentence order dated 30-09-2000 passed by Sri Pankaj Srivastava, Additional Sessions Judge-II, Aurangabad in Sessions Trial No. 29 of 1997/52 of 1998 by which and whereunder, he convicted the appellants for the offence punishable under Section 397 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years for the above said offence whereas; co-accused, Manoj Kumar Mishra was acquitted of the charge framed against him. 3. PW 1, namely Binay Kumar Singh gave his fard beyan to S.I. of Baron Police Station on 18-06-1996 at about 9.45 p.m. at G.T. road to this effect that on the same day, at about 9.00 p.m. while he was returning with his tractor, 7-8 criminals stopped him at the point of katta and when he tried to flee from there, one of the criminals, opened fire, which hit on his left panjara and after that, he stopped his tractor. The aforesaid criminals blocked the road using his tractor. In the meantime, 4-5 trucks also stopped there and the aforesaid criminals started looting the aforesaid trucks. In the meantime, police party came there from eastern side and seeing the police party, the aforesaid criminals opened several rounds of fire on the police party. The police party also resorted to fire in retaliation, and the criminals started fleeing towards western side and when the aforesaid firing ended he alongwith police party went towards river where, he found that one person was lying dead and another person was lying injured. The injured person disclosed his name as Dileep Chouhan and also disclosed the name of other criminals, such as; Naresh Chouhan, Suresh Chouhan Shiva Bhuiyan, Shukar Thakur, Dharmendra Chouhan, Sudesh Bhuiyan, Ram Kumar Paswan and after disclosing the name of aforesaid persons, the injured also died. The police party recovered two country-made pistols and four live cartridges from possession of above-said two persons and also recovered three empty cartridges from the place of occurrence. The person, who had disclosed his name as Dileep Chouhan had opened fire on him. He further stated that he identified the criminals in the headlight of tractor. The police party recovered two country-made pistols and four live cartridges from possession of above-said two persons and also recovered three empty cartridges from the place of occurrence. The person, who had disclosed his name as Dileep Chouhan had opened fire on him. He further stated that he identified the criminals in the headlight of tractor. 4. On the basis of aforesaid fard beyan of the PW 1, Barun P.S. Case No. 90 of 1996 under Section 395 of the Indian Penal Code was registered and accordingly, formal FIR was drawn up for the aforesaid offence against the persons whose name appeared in fard bey an of PW 1. The matter was investigated by the I.O. and after completion of investigation the I.O. submitted charge-sheet against the appellants and co-accused, Manoj Kumar Mishra for the offences under Sections 395, 397 and 120-B of the Indian Penal Code whereas; investigation against others was kept pending. Cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way. 5. In course of trial four prosecution witnesses were examined and besides it, the prosecution also got exhibited fard beyan as Ext. 1. Test Identification Parade as Ext. 2, seizure-cum-production list as Ext. 3 series. 6. The statements of appellants were recorded under Section 313 of the Cr PC in which. they claimed themselves to be innocent. No evidence was adduced by the appellants in support of their defence but from perusal of statements recorded under Section 313 of the Cr PC, it appears that the defence of the appellants was denial of the prosecution story. 7. The learned trial Court, having relied upon the testimonies of prosecution witnesses convicted and sentenced the appellants in the manner as stated above. 8. Learned senior counsel Sri Singh appearing for the appellants assailed the judgment of conviction and sentence order arguing that there was nothing in the deposition of prosecution witnesses to show the complicity of the appellants in the alleged crime and furthermore the learned Judicial Magistrate who conducted Test Identification Parade, did not adopt legal procedure in conducting the Test Identification Parade and, therefore, the Test Identification Parade of the appellants was meaningless and no conviction on the basis of aforesaid Test Identification Parade could have been passed. 9. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that PWs 1, 2 & 4 proved the alleged occurrence and furthermore, Ext. 2, the chart of Test Identification Parade reveals that the appellants were identified by PW 4 in Test Identification Parade, so, prosecution succeeded to prove its case. 10. As I have already stated that altogether 4 prosecution witnesses were examined by the prosecution in course of trial and, out of whom; PW 1 Vinay Kumar Singh is informant of this case and this witness has admitted at paragraph-7 of his cross-examination that he had not identified any criminals on the place of occurrence nor in Test Identification Parade. 11. PW 2 Bhuletan Singh was driver Havildar. This witness supported the alleged occurrence and stated that one of the injured criminals disclosed the name of appellant No. 2 and some others and on the basis of aforesaid disclosure, the name of criminals was noted down by Officer-in-charge on a paper. According to PW 1, injured criminal disclosed the name of some criminals and on the basis of aforesaid disclosure, the name of aforesaid Criminals was given in fard beyan of the PW 1 but admittedly, the name of appellants had not been mentioned in the fard beyan of the PW 1. Had the injured criminal disclosed the name of appellants in presence of PWs 1 & 2, the name of appellants would have certainly been found place in fard beyan of PW 1. Moreover, PW 1 has not taken the name of any criminals in the deposition recorded before the trial Court. 12. PW 2 admitted at paragraph-4 of his cross-examination that appellant No. 2 was arrested on next day of the alleged occurrence whereas; PW 3, who is also a police official, stated in his examination-in-chief that three criminals were arrested on the place of occurrence and the aforesaid three criminals were put on Test Identification Parade in which, he participated and identified the aforesaid three criminals. 13. PW 3 further stated that appellant No. 1 was arrested and he was brought to police station and after two months of his arrest, his Test Identification Parade was done. 14. PW 3 is a Judicial Magistrate, who conducted Test Identification Parade of the appellants. 13. PW 3 further stated that appellant No. 1 was arrested and he was brought to police station and after two months of his arrest, his Test Identification Parade was done. 14. PW 3 is a Judicial Magistrate, who conducted Test Identification Parade of the appellants. This witness stated that before holding Test Identification Parade he had written some number on the hands of suspect person. The above-stated statement of PW 3, clearly, demonstrates that the suspect persons, who were put on Test Identification Parade, were not mixed with the other persons and, the suspect persons could have been easily distinguishable from others due to specific marks on their hands. 15. It is explicit clear from perusal of the impugned judgment that the learned trial Judge passed his judgment on the basis of deposition of prosecution witnesses but as I have discussed above that the aforesaid contradiction in deposition of prosecution witnesses creates doubt about the genuineness of the prosecution story. Moreover, it would appear from the deposition of PW 3 that the Test Identification Parade was not held legally and furthermore, according to statement of PW 4, the aforesaid Test Identification Parade was held after two months of the alleged occurrence and. therefore, I am of the opinion that prosecution could not succeed to prove its case beyond shadow of all reasonable doubts against appellants and the appellants are entitled to get benefit of doubt. 16. On the basis of aforesaid discussions, this Cr. Appeal is allowed and impugned judgment of conviction dated 28-09-2000 and sentence order dated 30-09-2000 passed in Sessions Trial No. 29 of 1997/52 of 1998 are, hereby, set aside. 17. Both the appellants are on bail. They are discharged from the liability of their bail bonds. Appeal allowed.