JUDGMENT Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 412 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged that in between the night of 03.02.2011 and 04.02.2011, at about 12 in the mid night the informant came on the cry of Veena Devi, 5-6 criminals started assaulting him and when the younger brother of the informant, Kailash Singh, came out for his rescue, then, the miscreants entered into the house and exploded bomb, thereafter, the informant rushed to the house of Rakesh Singh and requested to inform Mukhiya and police on telephone and, thereafter, the miscreants looted the articles of the house and decamped. It is alleged that out of looted properties, contained jewelleries of gold and silver, cash, brief case, containing jeans and top, a sky coloured brief case, containing jeans, top, frock and money worth rupees four hundred and also took away three VIP attacheese of middle sizes, containing banarsi and silk sarees as well as jewelleries and various others clothes, VIP brief cases, containing sarees and blouses were taken away and they claimed to identify the accused by face, but, not by name, hence, the first information report lodged on arrival of the police at the place of occurrence on 04.02.2011. 4. On the first information report the police proceeded for investigation and after investigation, submitted charge sheet. 5. During the investigation, the police apprehended the appellant and from his house several articles were recovered alleged to be the looted articles on the date of the occurrence itself and, thereafter, the article seized was put in test identification parade and witnesses identified some of the articles and, thereafter, the police submitted the charge sheet on which the cognizance taken for offence under Sections 395 and 412 of the Penal Code, the case committed to the Court of sessions and after framing of the charge the trial proceeded. 6. 6. During the trial fifteen witnesses were examined and various documents have been marked exhibits as well as the material identification, during the trial, also produced in the Court which was marked as material exhibit and taking into consideration the evidence, both, oral and documentary, the trial Court convicted the appellant for offence under Section 412 of the Penal Code, but, acquitted the appellant of the charge for offence under Section 395 of the Penal Code. The trial Court convicted the appellant on the basis of the recovery of the article from the house of the appellant and the seizure list having been prepared, which has been marked as Exhibit 6, the signature of the witnesses on seizure list has been marked as Exhibits 2 and 2/1. The articles seized were put on test identification parade and the Circle Officer, Sheohar, conducted the test identification parade of the articles, seized. Two witnesses, Dolly Devi and Lalita Devi, participated in test identification parade and identified same of the items alleged to have been seized from the possession of this appellant and test identification chart has been proved and marked as Exhibits 7/1 and 5/1. Singhasan Devi, P.W. 13, has also participated in test identification parade and identified the article put in the test identification parade as belonging to daughter-in-law of the informant and the test identification chart has been marked as Exhibit 9/2, the articles which has been marked as material Exhibits (i) and (i)/1 and material Exhibit 3 a sky coloured attaché and material Exhibits 4 and 4/3, which includes two sarees of black colour and silk saree and other blue coloured georgette sarees and two blouses one having gulabi colour and other pink marked as material Exhibits 4 to 4/3 and the trial Court taking into consideration the evidence of the witnesses that they have identified material Exhibits (I) and (I)/1 as well as material Exhibit III and material Exhibits IV and IV/3, which are said to have been looted articles which were put in test identification parade and finally identified by the witnesses and the Court hold the appellant guilty for offence under Sections 412 of the Penal Code and sentenced to undergo rigorous imprisonment, as mentioned above. 7. 7. The learned counsel for the appellant has challenged the order of conviction and sentence on the ground that the occurrence took place in mid night and on information the police proceeded and recorded fardbeyan and the investigation proceeded by the investigating officer in the night itself and while the investigating officer was at the place of occurrence the Officer-in-Charge of Police Station called him to visit Mirzapur Dobahi at 07.15 a.m. about 4-5 kilometers away from the place of occurrence and there raid conducted in the house of the appellant and some article seized, alleged to be looted article and, further, the seizure list witnesses were the neighbours and the son of the informant, a person who is 4-5 kilometers away and the seizure list was prepared though the witnesses stated that they did not enter the house. During the investigation the test identification parade was conducted of the article seized from appellant was put in test identification parade in which the wife of Navin Kumar Sinha, participated as the seizure list witness for identifying the seized article and the other is the bhabhi of Navin Kumar Sinha, who claimed to have identified as P.Ws. 10 and 12. However, they claimed to have identified the sky brief case whereas in the list of the looted articles there is no mention of the sky coloured bag or brief case of Aristocrat Company though there is allegation of seizure of article, a sky coloured brief case and in the list of the looted articles there is mention of VIP attaché, there is no mention that any attaché of Aristrocat has been looted away. It has, further, been contended that though two sarees identified as material exhibits amongst the four articles, seized, and test identification parade conducted marked as Exhibits 4 and 4/3 as a black coloured silk saree and a blue coloured georgette saree, however, in the test identification chart, the seizure has been shown with regard to the articles, which is a green coloured saree with gota on it’s boundary and sky coloured border and the other marooned coloured saree with gota, hence, it is stated that the colour of the two sarees which were put in test identification parade and the colour of the two sarees, identified in the Court is different in style. It has, further, been contended that there is also contradiction in the colour of the blouse, identified, hence, it is contended that the major articles which were produced for identification in the Court does not tally with the articles seized or the articles for which the test identification parade was conducted, except few blouses, hence, under the facts and circumstances of the case, it is not proper to rely upon the evidence of the defence to record the conviction and it is contended that the order of conviction and sentence is fit to be set aside as the prosecution has not given a reasonable doubt. 8. The learned counsel for the State, however, submits that the prosecution ahs been able to prove by cogent and reliable evidence, hence, the order of conviction is required to be sustained. 9. However, from the record, it appears that the fardbeyan was recorded at about 02.30 a.m. at the place of occurrence by the police also and after recording the fardbeyan the same was forwarded to the head office for registration of a case under Section 395 of the Penal Code with specific allegation that Somal Kant Jha is already conducting the informant. The investigating officer, P.W. 15, has proved the formal first information report and has stated that on 04.02.2011 at about 0.25 hours an information received on telephone by the Officer-in-Charge about the dacoity and after recording the sanha, they proceeded to the place of occurrence recorded the statement. During the investigation, after the inspection of place of occurrence, statement of the witnesses recorded and while the police proceeded for raid, then, at about 07.15 a.m., received a call from the Officer-in-Charge, who instructed to come to Mirzapur Dabohi and, then, the investigating officer reached at village Fatehpur at 07.20 a.m. and there in presence of two witnesses, Rakesh Singh and Naveen Kumar Sinha, both residents of Fatehpur and are neighbour and son of the informant, creates a doubt about the search and seizure of he house of Suresh Bhagat, appellant, and it is alleged that some of the looted articles were recovered, seizure list prepared, marked as Exhibit 6 and, thereafter, during investigation the seized articles were put in test identification parade, conducted by Sri Navin Kumar Choudhary, the Circle Officer, Sheohar, P.W. 14 and during the trial P.Ws. 10 and 142 have identified the alleged looted articles and P.W. 10 identified two blouses which have been marked as Exhibits (i) and (i)/1 and P.W. 12 identified four articles which include two sarees and blouses and the trial Court taking into consideration the offence convicted the appellant, as mentioned above. 10. Having regard to the fact that the occurrence took place in the night and on the information, the police proceeded in the night, itself, recorded the statement of the informant and the statement recorded was sent for lodging of the first information report, investigation proceeded at 07.30 a.m., the investigating officer received the telephone of the Officer-in-Charge to proceeded to village Mirzapur Dabohi, which is at a distance of 4-5 kilometers and in presence of P.Ws. 3 and 4, the alleged seizure of looted articles recovered at Mirzapur Dobahi in presence of witnesses P.Ws. 3 and 4, who are not else than neighbour and son of the informant, residents of village Fatehkpur and none of the seizure list witnesses is of village Mirzapur Dobahi, though the informant and the seizure list witnesses have not identified the articles, seized, but, the two witnesses P.Ws. 10 and 12, non-else than the wife and bhabhi of Navin Kumar Sinha, who is P.W. 5. however, it has been asserted that in the evidence of P.W. 5, it is apparent that though the recovery was made from the house of the appellant and it has come in evidence that the appellant was also apprehended at the place of occurrence, itself, but, the seizure list does not contain the signature of the appellant, hence, there is violation of Section 100 of the Criminal Procedure Code, as the copy of the seizure list has not been provided to the appellant. 11. 11. Having regard to the fact that the occurrence took place in between the night of 3rd and 4th February, 2011, and the appellant apprehended at about 07.00 a.m. with seizure of alleged looted articles at a place about 4-5 kilometers away from the place of occurrence in a different and distinct village, but, the seizure list witnesses is non-else than the neighbour and son of the informant and no seizure list witnesses is of locality where seizure made and the seizure list has not been handed over to the appellant nor the signature of the appellant has been taken on the seizure list creates doubt about the seizure of looted articles. However, six items have been proved as looted articles, which has been marked as material Exhibits 1, 1/1, III, IV to IV/3, out of which the material Exhibit 3 is said to be the attaché of sky colour. However, in the list of looted articles, there is no mention about any article like sky colour attaché of Aristocrat Company and the identification of articles in between material Exhibits 4 and 4/3, there is no mention of description of two sarees, but, the colour of two sarees mentioned in the material exhibits and the colour of sarees mentioned in the test identification chart, hence, the major items, which were put in test identification parade there is variation in the articles, seized, and the articles, looted, and, further, only four blouses said to have been identified, as claimed, but, without any distinction, hence, it is apparent that the evidence regarding the recovery of looted articles is not a clinching evidence and give a suspicion about the conduct of the police regarding the investigation on the point of search and seizure and it’s proof as looted articles, itself, becomes doubtful having regard to the facts and circumstances of the case that two seizure list witnesses are the witnesses of Fatehpur, which is at a distance of 4-5 kilometers from the place of occurrence and independent seizure list witnesses are the son and neighbor of the informant, itself, and the majority of articles seized as not amongst the list of looted articles and, hence, the identification of the looted articles, recovered from the possession of the appellant is suffering from infirmity. The trial Court misdirected, itself, in convicting the appellant. 12. The trial Court misdirected, itself, in convicting the appellant. 12. Hence, order of conviction and sentence recorded by the trial Court is not sustainable as it casts a serious doubt and the prosecution has not proved beyond reasonable doubt, hence, the order of conviction and sentence is set aside and I acquit the appellant of the charge and the appeal is allowed. Appeal allowed.