JUDGMENT (CAV) Hemant Kumar Srivastava. J. All the above said appellants have been convicted and sentenced by common judgment of conviction dated 03-06-2000 and sentence order dated 13-06-2000 passed by Sri Krishnanand Pandey, IInd Additional Sessions Judge, Banka in Sessions Trial No. 626 of 1995 and accordingly, all the above-said appeals are being disposed of by this common judgment. 2. The above-said appellants have been convicted for the offence punishable under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years and furthermore, the period already undergone by them in course of trial was ordered to be set off. 3. The prosecution case in brief, is that PW 9, namely Shankar Singh gave his lard beyan to Officer-in-charge of Banka Police Station on 06-04-1994 at about 3.15 a.m. to this effect that between the night of 5/6-04-1994, at about 10.00 p.m. he alongwith his wife, Mishtha Devi (PW 5), sons. Jay Prakash Singh (PW 1) and Bipul Singh (PW 6), his grand daughter, Pinku Kumari, daughter Rinku Kumari and grandson Rajesh Kumar were sleeping at the roof top of his house whereas; wife of his elder son, namely. Geeta Devi (PW 7) and wife of younger son, namely, Manju Devi and his son-in-law namely Prabhash Singh were sleeping in different rooms of the house. He further stated that at about 11.45 p.m. one miscreant came at his roof and got awaken him. He noticed that the aforesaid criminal was armed with gun and in the meantime, four criminals having gun in their hands also came at his roof through the adjacent thatched house. The aforesaid five• criminals encircled him and two criminals alongwith him, got down from the roof and also demanded keys of the house but they could not succeed to unlock the doors with the aforesaid keys and further stated that the main door of his house was locked from inside and the aforesaid lock was broken by the above-said criminals and. after that, 10-12 criminals entered in his house through the main door. The criminals entered in the room of Geeta Devi and committed loot after breaking the bags. The criminals looted clothes and ornaments. Furthermore, the aforesaid criminals committed loot in the room in which his son-in-law was sleeping and again criminals entered in the room of Manju Devi and committed loot of ornaments and clothes. The criminals entered in the room of Geeta Devi and committed loot after breaking the bags. The criminals looted clothes and ornaments. Furthermore, the aforesaid criminals committed loot in the room in which his son-in-law was sleeping and again criminals entered in the room of Manju Devi and committed loot of ornaments and clothes. After 20-25 minutes, the criminals alongwith looted booty came out of the house and committed loot in the house of his agnates and also assaulted the wife of Niranjan Singh. The criminals went to the house of Krishna Nand Singh and committed loot in his house also. In the meantime, alarm was raised and villagers started assembling there but criminals hurled bombs, which caused injury to one villager namely Manoj Singh. The criminals were 30-40 in number and out of them, some criminals were between age group of 18-22 years whereas; some criminals were in the age group of between 30-35 years. All the criminals were armed with pistols guns and chhura. The criminals were speaking Hindi. He further stated that the criminals fled away towards East side. He claimed that aforesaid criminals looted property worth Rs. 50,000/. 4. On the basis of aforesaid fardbeyan of the PW 9. Banka P.S. Case No. 140 of 1994 under Sections 395, 397 of the Indian Penal Code was registered and accordingly formal FIR was drawn up for the aforesaid offence against unknown. 5. The matter was investigated by the police and after completion of the investigation police submitted charge-sheet against the appellants and several other accused persons. Cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. 6. Appellants and other accused were charged for the offence punishable under Sections 395/397 of the Indian Penal Code. The appellants and others denied the charges and claimed to be tried. 7. In course of trial altogether thirteen prosecution witnesses were examined and prosecution also got exhibited signature of informant on fardbeyan as Ext. 1, Injury report as Ext. 2. fardbeyan as Ext. 3 seizure lists as Ext. 4 series, the confessional statement of co-accused, Prahlad Paswan as Ext. 5, formal FIR as Ext. 6 and TIP charts as Ext 7 series. 8. 1, Injury report as Ext. 2. fardbeyan as Ext. 3 seizure lists as Ext. 4 series, the confessional statement of co-accused, Prahlad Paswan as Ext. 5, formal FIR as Ext. 6 and TIP charts as Ext 7 series. 8. The statements of appellants were recorded under Section 313 of the Cr PC in which, they reiterated their innocence and specifically, stated that they were falsely implicated on account of village politics and previous enmity. No evidence was adduced by the appellants as well as other accused in support of their defence but from perusal of their statements, recorded under Section 313 of the Cr PC as well as trends of cross-examination of prosecution witnesses, it appears that defence of the appellants and other accused was denial of their participation in the alleged dacoity. 9. The learned trial Court, having relied upon the statements of prosecution witnesses as well as documentary evidence adduced on behalf of the prosecution, passed the impugned judgment of conviction and sentence order in the manner as stated above. 10. Learned counsel appearing in Cr. Appeal No. 232 of 2000 submitted that three prosecution witnesses claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 at the time of alleged occurrence but as a matter of fact, the appellant in Cr. Appeal No. 232 of 2000 was known to all the aforesaid three prosecution witnesses from before the alleged occurrence and therefore the Test Identification Parade of the appellant in Cr. Appeal No. 232 of 2000 was meaningless. He further submitted that appellant in Cr. Appeal No. 232 of 2000 has already remained in jail custody for near about 6 and 1/2 months. 11. Learned counsel appearing in Cr. Appeal No. 236 of 2000 submitted that in course of trial, only prosecution witness No. 1 claimed to have identified the appellant in Cr. Appeal No. 236 of 2000 but as a matter of fact, appellant in Cr. Appeal No. 236 of 2000 was well-known to PW 1 from before the alleged occurrence because the village of appellant in Cr. Appeal No. 236 of 2000 is situated near the village of prosecution witness No. 1 and moreover, the prosecution witness No. 1 has made contradictory statement and the Test Identification Parade of the appellant in Cr. Appeal No. 236 of 2000 was held after two months of the alleged occurrence. Appeal No. 236 of 2000 is situated near the village of prosecution witness No. 1 and moreover, the prosecution witness No. 1 has made contradictory statement and the Test Identification Parade of the appellant in Cr. Appeal No. 236 of 2000 was held after two months of the alleged occurrence. He further submitted that the appellant in Cr. Appeal No. 236 of 2000 has already remained in jail for near about 3 and 1/2 months. 12. Learned counsel appearing in Criminal Appeal No. 268 of 2000 submitted that the appellant in above-said Criminal Appeal No. 268 of 2000 was identified by prosecution witness No. 2 in Test Identification Parade but PW 2 had no occasion to see the dacoits because there was no source of identification and the contradictions which have occurred in deposition of prosecution witness No. 2 make his deposition unreliable. He further submitted that the Test Identification Parade of appellant in Criminal Appeal No. 268 of 2000 was held after a long delay. 13. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that the factum of dacoity was proved by almost all the material witnesses and so far as participation of the appellants in the above-said dacoity is concerned the witnesses claimed to have identified the appellants in Test Identification Parade as well as in dock and therefore the participation of the appellants in the above-said dacoity is well proved and the learned trial Court, rightly, convicted and sentenced the appellants. 14. As I have already stated that altogether 13 prosecution witnesses were examined in this case and out of them PW 1 Jai Prakash Singh claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 as well as the appellant in Cr. Appeal No. 236 of 2000 in Test Identification Parade PW 3. Krishna Nand Singh claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 as well as co-accused. Prahlad Paswan PW 4 also claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 in Test Identification Parade whereas: PW 8 claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 at the time of alleged occurrence. 15. PW 1 has claimed to have identified the appellant in Cr. Prahlad Paswan PW 4 also claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 in Test Identification Parade whereas: PW 8 claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 at the time of alleged occurrence. 15. PW 1 has claimed to have identified the appellant in Cr. Appeal No. 236 of 2000 and except the aforesaid prosecution witness none of the prosecution witnesses has stated about the participation of the appellant in Cr. Appeal No. 236 of 2000 in the alleged dacoity. Similarly, except prosecution witness No. 2. none of the prosecution witnesses has stated about the participation of the appellant in Criminal Appeal No. 268 of 2000 in the alleged dacoity. Therefore, it is apparent that three prosecution witnesses claimed to have identified the appellant in Cr. Appeal No. 232 of 2000 whereas; appellants in Cr. Appeal No. 236 of 2000 and Criminal Appeal No. 268 of 2000 were identified by one prosecution witness each. 16. PW 10 Sunil Kumar Singh stated that on the alleged date of occurrence he was sleeping in his house and heard noise from the house of his uncle Shankar Singh (PW 9). This witness further stated that 10-15 dacoits entered his house and committed loot. This witness stated that he participated in Test Identification Parade and identified accused. Prahlad Paswan in Test Identification Parade and in Court also At paragraph-3 of his cross-examination, this witness stated that almost all the criminals who had entered his house had covered their faces. This witness further stated that when some suspects of this case were arrested he was noticed by the daroga and having got the notice, he went to police station where the suspects of this case, were lodged. He further admitted that the suspects, who were lodged in the police station, were also put on Test Identification Parade. PW 6 Bipul Singh is the son of informant. This witness supported the factum of dacoity and claimed that in course of dacoity he identified some dacoits by their faces. He further stated that he participated in Test Identification Parade and identified one, Prahlad Paswan. At paragraph-4 of his cross-examination, this witness stated that two dacoits had covered their faces whereas; rest two dacoits had not covered their faces. This witness further stated that all the aforesaid four dacoits were not of his village. He further stated that he participated in Test Identification Parade and identified one, Prahlad Paswan. At paragraph-4 of his cross-examination, this witness stated that two dacoits had covered their faces whereas; rest two dacoits had not covered their faces. This witness further stated that all the aforesaid four dacoits were not of his village. He admitted in his cross-examination that he could not see the faces of dacoits properly because he was not allowed by the dacoits to lift his face at the time of dacoity. He further admitted that after 4-5 days of the alleged occurrence he had gone to police station. This witness further admitted that the person who was identified by him in Test Identification Parade as well as in dock was lodged in police station. 17. On perusal of the statements of PWs 10 & 6 it is apparent that some suspects of the alleged dacoity were arrested by the police after the alleged occurrence and the aforesaid suspects were lodged in police station and after that the aforesaid suspects were put on Test Identification Parade. Furthermore, the statement of aforesaid prosecution witnesses suggests that the aforesaid suspects were shown to above-said witnesses prior to holding of their Test Identification Parade. 18. PW 3 claimed in his examination-in-chief that he had identified accused. Prahlad Paswan and the appellant in Cr. Appeal No. 232 of 2000 in Test Identification Parade as well as in dock but on being cross-examined he admitted at paragraph-3 of his cross-examination that five dacoits had entered in his room and all the aforesaid 5 dacoits had covered their faces. This witness further stated that due to darkness he could not see the faces of aforesaid dacoits properly. He further admitted at paragraph-4 of his cross- examination that after 12-14 days of the alleged occurrence he came to know that accused. Prahlad Paswan as well as Krishnadeo Paswan the appellant in Cr. Appellant No. 232 of 2000 were caught by the police and they had been lodged in police Hazat. Although he again stated that only Prahlad Paswan. Mom Paswan and Manoj Paswan had been lodged in jail Hazat. He further admitted in his cross-examination that the aforesaid three accused who had been lodged in Thana Hazat were put on Test Identification Parade. Although he again stated that only Prahlad Paswan. Mom Paswan and Manoj Paswan had been lodged in jail Hazat. He further admitted in his cross-examination that the aforesaid three accused who had been lodged in Thana Hazat were put on Test Identification Parade. He further admitted at paragraph-5 of his cross-examination that when he participated for the first time, in Test Identification Parade, Prahlad Paswan, Mofil Paswan and Manoj were put on Test Identification Parade and the aforesaid Test Identification Parade was conducted after one month of the alleged occurrence and again after 10 days of the first Test Identification Parade, the second Test Identification Parade was conducted. He further stated that there are 7 tolas in his village and he as well as PW 9 (informant) reside in Asni tola and Bishunpur tola is situated at a distance of one mile from his tola. 19. PW 1 also supported the factum of dacoity and stated that when dacoits alongwith his father (PW 9) got down from roof, he heard the sound of breaking of lock. This witness stated that he identified the appellants in Cr. Appeal No. 232 of 2000 and Cr. Appeal No. 236 of 2000 in Test Identification Parade. On being cross-examined, this witness admitted that the appellant in Cr. Appeal No. 232 of 2000 was resident of Bishunpur whereas; the appellant in Cr. Appeal No. 236 of 2000 is resident of village, Pathra. He, further admitted that the distance between his village as well as village Pathra is about 2-3 kms. He further admitted that after one month of the dacoity, he participated in the Test Identification Parade and he went to participate in Test Identification Parade alongwith Sunil Kumar Singh (PW 10), Vijay Singh, Krishna Nand Singh (PW 3) and Siyaram Singh (PW 2). This witness further admitted at paragraph-5 of his cross-examination that he• knows Doman Paswan, who happens to be chowkidar of his village but he does not know this fact as to where Kishundeo Paswan S/o Doman Paswan resides. He further admitted that the house of Doman is situated at the distance of 2 kilometres from his house. 20. This witness further admitted at paragraph-5 of his cross-examination that he• knows Doman Paswan, who happens to be chowkidar of his village but he does not know this fact as to where Kishundeo Paswan S/o Doman Paswan resides. He further admitted that the house of Doman is situated at the distance of 2 kilometres from his house. 20. PW 2 Siyaram Singh is son of informant, Shankar Singh (PW 9) and this witness stated that at about 11.30 p.m. he was returning to his house and reached near Chandan River, where four criminals encircled him and snatched his belongings and, after that, he was brought to his door. He further stated that some dacoits came out of his house and made him to sit near the door. He further stated that the dacoits who came out from his house had broken the lock of the door and he identified the culprit who had broken the lock of his door. He further stated that he participated in Test Identification Parade and identified the persons who had broken the lock of his door. This witness identified the appellant in Criminal Appeal No. 268 of 2000. According to this witness at the time of dacoity as well as breaking of the lock of the door he was outside the house. 21. PW 9 Shankar Singh stated that after the dacoity he gave his fard beyan to police and put his signature on his fard beyan. The prosecution has brought the fard beyan of PW 9 on record as Ext. 3. Although PW 9 has not stated before the Court that he alongwith dacoits got down from the roof and dacoits broke the lock of the door from inside of the house but in his fard beyan he specifically stated that when dacoits could not succeed to open the lock of the door they broke the lock of main door and after that some dacoits entered in his house. Therefore, it is clear that the lock of main door was broken from inside the house because the aforesaid main door was locked from inside of the house whereas; PW 2 claimed that he had seen dacoits who broke the lock of main door of his house but it is surprising enough as to how PW 2 could see the dacoit who broke the lock of main door from inside the house, particularly in the circumstances, when the PW 2 was sitting outside the house at the time of breaking of lock of main door. The aforesaid contradiction creates doubts about the testimony of PW 2 because as stated above according to statement of this witness he was made to sit outside the house and according to fard bey an of PW 9, the lock of main door was broken from inside the house and therefore PW 2 was not in a position to see the person who broke the lock of main door. PW 2 has identified the appellant in Criminal Appeal No. 268 of 2000 and stated that it was the appellant in Criminal Appeal No. 268 of 2000 who had broken the lock of main door of his house and, therefore, the identification of the appellant in Criminal Appeal No. 268 of 2000 by PW 2, appears to be doubtful. Furthermore, this witness stated that when the dacoit broke the lock of main door, he was standing at the distance of one metre and no other person was 3 present there. He further stated that he participated in Test Identification Parade after 7-8 months of the alleged occurrence. Therefore, the aforesaid contradiction makes this witness unreliable. 22. PW 4 Vijay Singh stated that he had identified the appellant in Cr. Appeal No. 232 of 2000 in Test Identification Parade. This witness admitted that Doman Paswan is chowkidar of his village. 23. PW 5 Smt. Mishtha Devi is wife of the informant PW 9., This witness also supported the factum of dacoity and on being cross-examined by the defence; she admitted that village-Pathra is adjacent to her village and villagers of Pathra village used to visit her village. 24. This witness admitted that Doman Paswan is chowkidar of his village. 23. PW 5 Smt. Mishtha Devi is wife of the informant PW 9., This witness also supported the factum of dacoity and on being cross-examined by the defence; she admitted that village-Pathra is adjacent to her village and villagers of Pathra village used to visit her village. 24. PW 7 Geeta Devi @ Sita Devi has been tendered but on being cross-examined by the defence, she admitted that at the time of alleged occurrence, her husband namely, Siyaram Singh was working in a picture hall and he used to return to his home at midnight. 25. PW 8 Renu Devi also supported the factum of dacoity and she stated that dacoits gave dagger blow on her private part. She further stated that in the light of bulb, she identified the appellant, Kishundeo Paswan. She further admitted at paragraph-4 of her cross-examination that she had identified one dacoit at the time of alleged occurrence and the aforesaid dacoit was well-known to her from before because the aforesaid dacoit was her co-villager and his house was situated towards North side of her house. She further stated that one or two days of the alleged occurrence, she gave her statement before the police and, before giving her statement before the police, she had disclosed the name of the appellant, Kishundeo Paswan before her family members. 26. PW 9 is the informant and he proved the factum of docoity as well as his fard beyan PW 11 is the doctor who examined the injury of PW 8 and proved her injury report. PW 12 is the I.O. of this case whereas; PW 13 is a Judicial Magistrate who had conducted the Test Identification Parade. 27. On scrutiny of the above said evidences of the prosecution witnesses, I find that father of the appellant in Cr. Appeal No. 232 of 2000 was chowkidar of village of prosecution witnesses and furthermore, the appellant in Cr. Appeal No. 232 of 2000 is a resident of village Bishunpur which is a tola of village of the informant and the distance between the tola of the appellant in Cr. Appeal No. 232 of 2000 as well as tola of informant; is only about one kilometer. Furthermore, I find that PW 8 has, specifically, stated that the appellant in Cr. Appeal No. 232 of 2000 as well as tola of informant; is only about one kilometer. Furthermore, I find that PW 8 has, specifically, stated that the appellant in Cr. Appeal No. 232 of 2000 was well-known to her prior to the alleged occurrence and before giving statement to police, she had already disclosed the name of appellant in Cr. Appeal No. 232 of 2000 to her other family members. The aforesaid admission of the PW 8 clearly, suggests this fact that the appellant in Cr. Appeal No. 232 of 2000, being co-villager was well-known to the prosecution witnesses from before the alleged occurrence because when appellant in Cr. Appeal No. 232 of 2000 was known to PW 8 who was a newly married lady it is hard to believe that the appellant in Cr. Appeal No. 232 of 2000 was not known to male members of family of PW 8. Furthermore, PWs 6 & 10 admitted that when suspects of the docoity were kept in police station, they visited the police station and had occasion to see them. Furthermore, admittedly, the Test Identification Parade was held after one month of the alleged occurrence whereas; appellants were arrested by the police within very short span of time and they were produced before the Court of Chief Judicial Magistrate. The aforesaid circumstance, clearly goes to show that the prosecution witnesses had ample opportunity to see the appellants. 28. Similarly, the appellant in Cr. Appeal No. 236 of 2000 is a resident of village-Pathra, which is situated at a distance of 2-3 kms. from the village of the informant and there is specific stand of the defence that appellant in Cr. Appeal No. 236 of 2000 had some relatives in the village of the informant and, furthermore, the wife of informant admitted that villagers of Pathra village used to visit her village. So, the aforesaid fact goes to show that prosecution witnesses had occasion to see the appellant in Cr. Appeal No. 236 of 2000 before the alleged occurrence. PW 12 the I.O. of this case admitted at paragraph-8 of his cross-examination that the appellant in Criminal Appeal No. 268 of 2000 was arrested by him on 18-04-1994 and he was produced before learned Chief Judicial Magistrate on 19-04-1994 and similarly, he admitted that on 15-04-1995, he arrested the appellant in Cr. Appeal No. 236 of 2000. PW 12 the I.O. of this case admitted at paragraph-8 of his cross-examination that the appellant in Criminal Appeal No. 268 of 2000 was arrested by him on 18-04-1994 and he was produced before learned Chief Judicial Magistrate on 19-04-1994 and similarly, he admitted that on 15-04-1995, he arrested the appellant in Cr. Appeal No. 236 of 2000. He, Further admitted that he issued requisition for Test Identification Parade of the appellants in Cr. Appeal No. 236 of 2000 and in Criminal Appeal No. 268 of 2000 on 12-05-1997. Therefore, the aforesaid admission of PW 12 indicates that Test Identification Parade of the above-said appellants was held after more than one month of the alleged occurrence and after their arrest they were regularly being produced before the Court. Therefore, the aforesaid circumstance also gives reason to raise suspicion about the genuineness of the Test Identification Parade because the appellants might have been shown to the prosecution witnesses before holding their Test Identification Parade as the police had got ample time and opportunity to do the same. 29. On the basis of aforesaid discussions. I am of the opinion that Test Identification Parade of appellants is not free from doubts and the prosecution could not succeed to prove the charges levelled against the appellants beyond shadow of all reasonable doubts and therefore appellants are entitled to get the benefit of doubt. 30. Thus, on the basis of aforesaid discussions these Criminal Appeals are allowed and impugned judgment of conviction dated 03-06-2000 and sentence order dated 13-06-2000 is, hereby, set aside. All the appellant are on bail. They are discharge from the liabilities of their bail bonds. Appeals allowed.