JUDGMENT : AKHILESH CHANDRA, J.:–Heard learned counsels appearing on behalf of the parties. 2. This solitary appellant has preferred this appeal against his conviction for the offence under Section 395 of the Indian Penal Code and sentence to undergo rigorous imprisonment for seven years and pay a fine of Rs. 2,000/-, in default, to undergo further simple imprisonment for six months as awarded on 08th May, 2002 by learned Additional Sessions Judge, Fast Track Court-2, Sitamarhi in Sessions Trial No. 179/93/23/2002 arising out of Majorganj P.S. Case No. 77/91. 3. In this case instituted on the Fardbeyan (un-exhibited) of P.W.5, namely, Ram Nath Sah, recorded on 29th September, 1991 at Basbitta O.P. at 6.30 A.M. by S.I., A.B. Pandey (not examined) is that in the previous night at about 2.00 A.M. about twelve - fourteen miscreants committed dacoity in the house and snatched different articles from the person of the inmates and also taken away different boxes containing valuable articles. The majority of the miscreants have concealed their faces and the informant claimed to identify them by face, if they have produced. Subsequently, during investigation the appellant was apprehended and, as it appears, identified during test identification parade (T.I.P.) by P.Ws.1 & 5 and, ultimately, faced trial. 4. The prosecution to support the charge produced only Ext.1 and Ext.1/1, the two signatures of P.Ws.1 & 5 on the Fardbeyan and examined altogether six witnesses, out of whom, P.W.6, namely, Manju Devi, is non-else than wife of P.W.1, namely, Deena Nath Sah, who states in examination-in-chief that on hearing the voice of her husband opened the door and finding eight - ten miscreants and while trying to close the door she was dashed and the door was opened and she vehementally denied about identifying the appellant at this juncture. She was declared hostile and her attention was drawn only towards the statement recorded under Section 161 of the Code of Criminal Procedure that she in her said statement claimed to identify the appellant. 5. Keeping in mind the above statement of P.W.6, now, what P.W.1, Deena Nath Sah, has said is relevant to consider. She was declared hostile and her attention was drawn only towards the statement recorded under Section 161 of the Code of Criminal Procedure that she in her said statement claimed to identify the appellant. 5. Keeping in mind the above statement of P.W.6, now, what P.W.1, Deena Nath Sah, has said is relevant to consider. He while stating the prosecution version has narrated that he was initially made captive by one of the miscreants, who took help of this witness in getting the door opened and he further states during said process that after hearing his voice his wife opened the door, but finding the miscreants and tried unsuccessfully to close the same. If at all at this juncture, the appellant was identified by P.W.6, even assuming her alleged statement recorded under Section 161 of the Code of Criminal Procedure (though in absence of Investigating Officer, nothing more could be done). 6. It appears difficult to appreciate as to how and why P.W.1 shall not identify him during the entire episode, but he is to wait to identify the appellant for test identification parade. Though, this witness, in order to further strengthening his claim to identify the appellant, has said about intimating the police at the time of Fardbeyan, naming of the appellant after making the witness and the informant aware of each other about his involvement, but the informant P.W.5 in cross-examination in paragraphs - 6 & 7 clearly denied naming the appellant either to police or anyone else. This further falsifies the statement of P.W.1 and these two witnesses P.Ws. 1 & 5 admits the appellant is a co-villager having his own house at a very short distance. 7. P.W.2, namely, Puran Devi, is the mother of the informant, P.W.3, namely, Bhagwati Devi and P.W.4, namely, Ram Swarath Sah, none have claimed to identify the miscreants including the appellant. 8. Neither the Investigating Officer has been examined nor the Magistrate in whose presence test identification parade was conducted, even test identification parade chart is also not produced and the only two persons claiming to identify the appellant in test identification parade have also not said a single word about any specific conduct of the appellant during the occurrence. 9. Having regard to the facts and circumstances discussed above, the prosecution appears miserably failed in establishing the charge against the appellant. 9. Having regard to the facts and circumstances discussed above, the prosecution appears miserably failed in establishing the charge against the appellant. Accordingly, the judgment of conviction and order of sentence, as recorded by the trial court, is not at all sustainable, hence, it is set-aside and the appeal is hereby allowed. The appellant abovenamed is set free from the liability of the bail-bond furnished on his behalf.