JUDGMENT Hemant Kumar Srivastava, J. 1. Heard learned counsel for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This Criminal Appeal has been preferred against the judgment of conviction and sentence order dated 02-03-2001 passed by learned IInd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 211 of 1987 by which and whereunder, he convicted the appellant under Section-395 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years. 3. In brief, the prosecution case is that, P.W. 3 Abdul Aziz gave his fardbeyan to ASI, Sri R. N. Upadhyay (P.W. 9) on 06-10-1986 at 1.30 a.m. to this effect that between the night of 5/6-10-1986, he alongwith his wife (P.W.2) and children were sleeping in the verandah of his house whereas; his younger son, Hakim Mian was sleeping inside the house and similarly, his younger daughter-in-law was sleeping in her room in the house. He further stated that at about 12.50 a.m. two persons being armed with lathi and Bhala, came in the verandah of his house, where he was sleeping and tried to put off the lantern but he woke up and raising alarm, caught hold of both the aforesaid persons. The aforesaid persons started scuffling with him whereas; his wife (P.W. 2) started raising alarm. In the meantime, 10 other dacoits, being armed with various weapons, also reached there and out of the aforesaid dacoits, two dacoits caught his hands with an intent to get their associates released from his clutches and in that course, one dacoit exhorted the others to assault and, thereafter, one dacoit gave Barchhi blow on his chest whereas; other dacoits started assaulting him with Lathi. He further stated that he released those two dacoits and started crying. The dacoits then, forcibly, got fell him on a cot and surrounded him, having armed with lathi, Barchhi and also threatened him to kill, if he tried to raise alarm. The dacoits also surrounded his wife (P.W. 2) and asked her to keep quite. He further stated that the dacoits were flashing torches and in the light of aforesaid torches, he got opportunity to see the faces of the dacoits. He gave description of the dacoits. He further stated that dacoits entered into his house after breaking the door and looted ornaments and clothes from the house. He further stated that the dacoits were flashing torches and in the light of aforesaid torches, he got opportunity to see the faces of the dacoits. He gave description of the dacoits. He further stated that dacoits entered into his house after breaking the door and looted ornaments and clothes from the house. The dacoits remained in his house for near about 25-30 minutes and after committing dacoity; dacoits came out of his house alongwith looted booty and also committed dacoity in the house of Rajendra Chowdhary (P.W. 1). The dacoits also exploded bombs. He further stated that the dacoits were between the age group of 25-30 years. 4. On the basis of fardbeyan of P.W. 3, Patepur P.S. Case No. 80 of 1986 under Section-395 of the Indian Penal Code was registered and, accordingly, formal FIR was drawn up against 10-12 unknown persons. 5. P.W. 9, Ravindra Nath Upadhyay recorded the fardbeyan of P.W. 3 and forwarded the same to concerned police station for registration of FIR. Admittedly, P.W. 9 started investigation of the aforesaid case and in that course, he recorded further statement of P.W. 3 and inspected the place of occurrence. He also inspected the house of P.W. 1, Rajendra Chowdhary and prepared requisition for injury of P.W. 1 and his wife but before completion of investigation, P.W. 10, Bhola Prasad, being officer-in-charge of Patepur Police Station reached at the place of occurrence and took the charge of investigation. 6. P.W. 10 seized some looted articles from a field and prepared seizure list. He recorded the statement of witnesses and got conducted Test Identification Parade of suspect persons of this case. Furthermore, in course of investigation, he arrested the appellant, Jagdish Ram on 8'/9-10-1986 near a canal and produced him before the court on 10-10-1986. 7. In course of investigation, P.W. 11, being Judicial Magistrate, conducted Test Identification Parade of the appellant and in the aforesaid Test Identification Parade, P.W. 2 as well as P.W. 3 claimed to have identified the appellant. P.W. 2 & P.W. 3 stated before P.W. 11 that it was the appellant who had tied the hands of the P.W. 3 at the time of alleged dacoity. 8. After completion of investigation, charge sheet was submitted against the appellant and two other persons, who were also identified by P.Ws. 2 & 3 in Test Identification Parade. 9. P.W. 2 & P.W. 3 stated before P.W. 11 that it was the appellant who had tied the hands of the P.W. 3 at the time of alleged dacoity. 8. After completion of investigation, charge sheet was submitted against the appellant and two other persons, who were also identified by P.Ws. 2 & 3 in Test Identification Parade. 9. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 10. The appellant and other co-accused, namely, Washi Ahmed @ Jhaloo and Yusuf Mian were put on trial and they were charged for the offence punishable under Section-395 of the Indian Penal Code. The appellant and other co-accused denied the charge and claimed to be tried. 11. In course of trial, prosecution examined altogether 11 witnesses and also got exhibited several documents including chart of Test Identification Parade. 12. The learned trial court passed the judgment of conviction and sentence order against the appellant vide judgment dated 24-05-1988 which was challenged before this court in Cr. Appeal No. 280 of 1988 and while hearing the aforesaid Cr. Appeal No. 280 of 1988, a bench of this court found that the learned trial court pronounced the aforesaid judgment of conviction and sentence order without recording the statement of appellant u/S 313 of the Cr. P.C. and, accordingly, a bench of this court set aside the judgment of conviction and sentence order dated 24-05-1988 and remitted the matter to the trial court for completing the formalities from the stage of recording the statement of appellant u/S 313 of the Cr. P.C. to prepare and deliver the judgment afresh in accordance with law. After aforesaid judgment dated 09-12-1997 passed in Cr. Appeal No. 280 of 1988, the learned trial court recorded the statement of appellant u/S 313 of the Cr. P.C. and having considered the materials available on the record, passed the impugned judgment of conviction and sentence order dated 02-03-2001 which has been challenged by the appellant before this court. 13. Learned counsel for the appellant submitted that no doubt, no evidence was adduced by the appellant in support of his defence but from his statement recorded u/S 313 of the Cr. 13. Learned counsel for the appellant submitted that no doubt, no evidence was adduced by the appellant in support of his defence but from his statement recorded u/S 313 of the Cr. P.C. as well as from the trend of cross-examination of prosecution witnesses, it is apparent that the defence of the appellant was of his false implication on account of dispute of wages with one, Rahmatullah Ansari (P.W. 4). He further submitted that P.W. 10 has admitted at paragraph-9 of his cross-examination that the appellant was a boring mechanic and he had done boring in the house of Rahmatullah Ansari (P.W. 4). He further submitted that P.W. 2 has admitted that house of Rahmatullah Ansari is adjacent to her house. He further submitted that the village of the appellant is adjacent to the place of occurrence and there is only a canal between the village of the appellant as well as village of P.W. 3 and, therefore, it is apparent from the aforesaid fact that the appellant was well-known to P.W. 3 from before the alleged occurrence. He further submitted that admittedly, P.W. 2 and P.W. 3 had identified co-accused, Yusuf Mian and Wasi Ahmed and the learned trial court found that the aforesaid two accused persons were falsely implicated by the P.W. 2 and P.W. 3 on account of previous enmity and therefore, the aforesaid conduct of P.W. 2 and P.W. 3 also creates doubt about the genuineness of the prosecution story. 14. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that in course of investigation, the appellant was arrested and was put on Test Identification Parade in which, P.W. 2 & P.W. 3 claimed to have identified the appellant as one of the dacoits and therefore, there is no ground to disbelieve the testimony of P.W. 2 & P.W. 3. 15. The factum of dacoity is not in dispute and the only dispute between the parties is as to whether the appellant had participated in the alleged dacoity or not. The prosecution has relied upon deposition of P.W. 2, P.W. 3, P.W. 10 & P.W. 11. 16. P.W. 2 & P.W. 3 stated that they had identified the appellant in Test Identification Parade. The prosecution has relied upon deposition of P.W. 2, P.W. 3, P.W. 10 & P.W. 11. 16. P.W. 2 & P.W. 3 stated that they had identified the appellant in Test Identification Parade. P.W. 10 stated that the appellant was put on Test Identification Parade whereas; P.W. 11 stated that he conducted Test Identification Parade in which, P.W. 2 & P.W. 3 identified the appellant claiming this fact that it was the appellant who tied the hands of P.W. 3 at the time of alleged occurrence. 17. P.W. 10 had admitted at paragraph-8 of his cross-examination that he arrested the appellant between the night of 8/9-10-1986 from near a canal, where the house of the appellant was situated. Furthermore, the house of the appellant as well as house of the P.W. 3 was divided by a canal. P.W.11 stated that the appellant was put on Test Identification Parade on 20-10-1986, Admittedly, the occurrence had taken place on 06-10-1986. Therefore, it is apparent that Test Identification Parade of this appellant was held after 15 days of the alleged occurrence and after eleven days from the date of his arrest. 18. P.W. 2 has admitted that house of P.W. 4 is situated near her house. P.W. 3 was, specifically, suggested by the defence that his hand pipe was bored by the appellant and furthermore, P.W. 4 was, specifically, suggested on behalf of the appellant that hand pipe in his field was bored by this appellant and there was some dispute of wages between him and the appellant. The aforesaid fact indicates that from the very inception, the appellant took this defence that he was implicated in the case on account of dispute of wages. 19. As I have already stated that P.W. 10 stated that the appellant was a boring mechanic and being boring mechanic, he had easy access to the houses of the people of vicinity and in the guise of boring mechanic, he used to do the work of spy. This witness also stated that the appellant had bored in the house of P.W. 4 Rahmatullah. Admittedly, the house of P.W. 4 is adjacent to the house of P.W. 2 and P.W. 3. Therefore, it appears from the aforesaid materials that P.W. 2 & P.W. 3 had occasion to see the appellant prior to the alleged occurrence. 20. This witness also stated that the appellant had bored in the house of P.W. 4 Rahmatullah. Admittedly, the house of P.W. 4 is adjacent to the house of P.W. 2 and P.W. 3. Therefore, it appears from the aforesaid materials that P.W. 2 & P.W. 3 had occasion to see the appellant prior to the alleged occurrence. 20. P.W. 2 & P.W. 3 identified the appellant in Test Identification Parade as the dacoit who tied the hands of P.W. 3 at the time of alleged dacoity. Although P.W. 3 deposed before the trial court that when dacoits came at his verandah, they tied his hands but the aforesaid statement was not made by the P.W. 3 before P.W. 10 when his fardbeyan was recorded rather he stated in his fardbeyan that dacoits made him to sleep on a cot. 21. On the basis of aforesaid discussions, I find that the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts and in my view; the appellant is entitled to get the benefit of doubt. 22. Thus, on the basis of aforesaid discussions, this Cr. Appeal is allowed and the impugned judgment of conviction and sentence order is set aside. The appellant is on bail. He is discharged from the liability of his bail bonds.