JUDGMENT Hon’ble Mohd. Tahir, J.—This criminal appeal has been filed against the judgment and order dated 9.8.1982 passed by IV Additional Sessions Judge Etah in S.T. No. 109 of 1981 State v. Moorat Ram alias Moorti and others, under Sections 392/397, 411 IPC P.S. Baghwala District Etah whereby the trial Court has convicted the appellants Moorat Ram @ Moorti, Raj Kumar and Rameshwar under Section 392 read with Section 397 IPC and sentenced them to undergo R.I. for a period of three years. The trial Court has not found accused appellant Moorat Ram @ Moorti guilty of the charge under Section 411 IPC and acquitted him of that charge. 2. The prosecution case in brief is that on 31.7.1979 when the complainant Lalman was going to meet his relations in village Bichhia, within the police station of Baghwala, District Etah, accused persons namely Raj Kumar and Moorat Ram, sons of Lajja Ram and Rameshar son of Bangali and Komal son of Chhattar and one ‘Dheemar, a water man in Kartala Bank, met him near the Kartala School at about 5.00 p.m. and that they stopped the complainant and started abusing him and thereafter accused Raj Kumar and Rameshwar at the knock of country made pistol and other accused showing lathis robbed his radio valued about Rs.200/- and a watch valued Rs.150/- and a five rupee note and some paises, which were in his pocket. The accused robbed him in the presence of Chhotey Lal and Yad Ram and even on the checking by Chhotey Lal and Yad Ram not to do so, the accused ran away after snatching the above articles from the possession of the complainant. Thereafter the complainant reached the place of Kallu and Bankey Lal and told them about the whole incident. On making inquiry the complainant came to know about the names of the above accused from the witnesses Kallu and Bankey Lal. Thereafter the complainant alongwith Kallu and Bankey Lal went to the police station to lodge the report about the occurrence but his report was not written at the police station and he was told at the police station that his report would be written after the investigation of the matter and his report was not written at the police station even after the investigation. Hence, the complainant on the next day came to Etah and got his report typed and went to the Superintendent of Police Etah, who order on his report to S.O. Baghwala to register his case and thereafter he went to the police station Baghwala and gave his report, where the case was registered by Head Moharrir Kailash Chand on 1.8.1979 at 12.15 p.m. and he also made an entry in G.D. At report No. 17. 3. The investigation of the case was entrusted to Sri S.K. Dubey, who was posted as S.I. At police station in August-September 1979. He proceeded to the place of occurrence on the same day and took the statements of the complainant Lalman and the witnesses Yad Ram and Chhotey Lal and others and he also prepared the site plan on the pointing out of the witnesses. The case was registered under Section 395 IPC but after recording the statements of the witnesses the same was converted under Section 392 IPC and an entry to this effect was also made in G.D. at report No. 25 by the Investigating Officer. 4. The Investigating Officer after conducting the investigation had filed charge-sheet against accused Raj Kumar, Moorat Ram @ Moorti and Rameshwar under Section 392/412 IPC. On receiving the charge-sheet under Section 392/412 IPC the Magistrate concerned committed the accused to the Court of Sessions as the offence was exclusively triable by the Court of Sessions. 5. The trial Court framed charge against accused Raj Kumar, Moorat Ram @ Moorti and Rameshwar under Section 392 read with Section 397 IPC. In addition to that, Moorat Ram @ Moorti was charged under Section 411 IPC also. The accused did not plead guilty and claimed to be tried. 6. The prosecution in order to prove its case examined six witnesses in all. Out of them PW-1 is S.O. Sri M.P. Singh and PW-2 is S.I. R.D. Tyagi. These two witnesses are the witnesses of recovery of radio and watch allegedly looted in the crime in question by the accused persons. PW-3 is Lalman who is the complainant/first informant of this case and he deposed in his examination-in-chief as per the version contained in the FIR. PW-4 is Yad Ram and PW-5 is Chhotey. These three witnesses namely PW-3 Lalman, PW-4 Yad Ram and PW-5 Chhotey are the witnesses of fact of the commission of alleged robbery. PW-3 is Lalman who is the complainant/first informant of this case and he deposed in his examination-in-chief as per the version contained in the FIR. PW-4 is Yad Ram and PW-5 is Chhotey. These three witnesses namely PW-3 Lalman, PW-4 Yad Ram and PW-5 Chhotey are the witnesses of fact of the commission of alleged robbery. PW-6 is Sri S.K. Dubey who is the Investigating Officer of this case. 7. The accused persons in their statement recorded under Section 313 Cr.P.C. had denied the prosecution case and further stated that they have been falsely implicated in this case due to previous enmity and party politics of the village. They have stated that no article was recovered from the possession of accused Moorat Ram and that the whole case is false. The accused persons have not adduced any oral or documentary evidence in their defence. 8. The trial Court after hearing the counsel for both the sides and perusing the evidence on record, acquitted the accused appellant Moorat Ram @ Moorti of the charge under Section 411 IPC but convicted accused appellants Moorat Ram @ Moorti, Raj Kumar and Rameshwar of the charge under Section 392 read with Section 397 IPC and sentenced them to undergo R.I. for a period of three years. 9. Aggrieved by the judgment and order of the trial Court the aforesaid convicted accused appellants namely Moorat Ram @ Moorti, Raj Kumar and Rameshwar have filed this criminal appeal. 10. During the pendency of this criminal appeal accused appellants Moorat Ram @ Moorti and Rameshwar had died. Hence this appeal stood abated as against them. Now the accused appellant Raj Kumar is left out. 11. I have heard learned counsel for the accused appellant Raj Kumar, learned AGA for the State and perused the evidence on record. 12. Learned counsel for the accused appellant Raj Kumar has submitted that in this case the two witnesses of fact namely Yad Ram (PW-4) and Chhotey (PW-5) did not support the prosecution case and they both had turned hostile. He has further submitted that the single testimony of the first informant Lalman (PW-3) is not sufficient to convict the accused appellant and the Court below has committed an error in relying upon the single testimony of the first informant (PW-3). He has further submitted that the single testimony of the first informant Lalman (PW-3) is not sufficient to convict the accused appellant and the Court below has committed an error in relying upon the single testimony of the first informant (PW-3). On the other hand, learned counsel for the State has submitted that PW-3 Lalman is a reliable witness and his testimony can be the basis of conviction of the accused appellant. So the Court below has committed no error in relying upon his testimony. 13. I have considered all the rival submissions of learned counsel for both the parties. 14. Admittedly, first informant Lalman (PW-3) did not know the accused persons from before the occurrence in question and he has admitted in his examination-in-chief as well as in his cross-examination that witnesses Yad Ram and Chhotey had told the name of miscreants after they had gone away but in spite of this fact no test identification parade of those miscreants was held during investigation so as to establish their identity. So the testimony of the first informant (PW-3) as regards the identification of the accused persons in the Court is of no help to the prosecution and the same does not inspire confidence. In this regard, the ruling of Hon’ble Supreme Court in Thankayyam v. State of Kerala, 1994 SCC (Crl) 1751, may be referred to. In this ruling, the Hon’ble Supreme Court has held that if the witness does not know the accused from before the incident and no test identification parade of the accused is held, in that case the testimony of the witness as regards the identification of the accused in the Court cannot be relied upon. In this reference, it is also pertinent to mention that the single testimony of the first informant (PW-3) is not corroborated by any other evidence; that no looted articles have also been recovered from the possession of the accused appellants and that accused appellant Moorat Ram @ Moorti against whom charge under Section 411 IPC was framed in addition to the charge under Section 392/397 IPC, has been acquitted of that charge. This very circumstance also goes against the prosecution. 15. This very circumstance also goes against the prosecution. 15. For the foregoing reasons and discussions, I come to this conclusion that the prosecution has failed to prove its case beyond reasonable doubt and the Court below has erred in appreciation of the evidence in the proper perspective of the matter. Thus the impugned judgment and order is not warranted by law and facts on record. 16. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial Court dated 9.8.1982 is hereby set aside. The accused appellant Raj Kumar is not found guilty of any of the charges framed against him and he is acquitted of all the charges levelled against him. He need not surrender in the Court. Bail bonds stand discharged. 17. Office is directed to return the lower Court record to the lower Court concerned alongwith a copy of this judgment for information and to do the needful. ——————