JUDGMENT ; Smt. Anjana Prakash, J. The appellant has been convicted under Section 395, IPC and sentenced to R1 for five years by the 1st Additional Sessions Judge, Aurangabad in S.Tr. No. 148/47 of 2000/ 1999 by judgment and order dated 18/19.7.2001. 2. The ease of the prosecution is that the Informant's truck was looted away by some unknown miscreants by the owner and others of a hotel where they had parked their truck. The appellant was not named in the First Information Report but subsequently he was arrested and put on Test Identification Parade where he was identified and, therefore, convicted. 3. On behalf of the prosecution six witnesses were examined out of whom PW 1, Shambhu Tiwary supported the factum of dacoity but admitted that he had not been examined by the Investigating Officer and, therefore was declared hostile. 4. PW 2, Suersh Tiwary is the son of PW 1 who supported the occurrence and identified the accused persons including the appellant in the dock it appears that some of the accused persons who had been named were step-brothers and on litigating terms with him. 5. PW 3. Ram Lal Singh and PW 4, Mahadeo Singh are formal witnesses. 6. PW 5, R.R. Tiwary is the Judicial Magistrate who conducted the Test Identification Parade of the suspected accused on 9.10.1998 in the jail campus in which witness. Vijay Kumar Son of Mohan Lal, the driver of the truck identified the present appellant. 7. PW 6, Ramjatan Yadav is also a formal witness. 8. Surprisingly, the witness who had allegedly identified the appellant has not been examined by the prosecution and in absence of such evidence the evidence of the Judicial Magistrate, PW 5 would have no value. Hence, on this ground alone, the appeal is allowed and the order of conviction and sentence passed against the appellant on 18/19.7.2001 by the 1st Additional Sessions Judge, Aurangabad in S.Tr. No. 148/47 of 2000/1999 is set aside. The appellant is discharged of the liability of his bail bonds. 9. The appeal stands allowed. Appeal dismissed.