JUDGMENT : S.K. Sahoo, J. The petitioners Danial Singh, Karnel Pani and Prano Singh along with four co-accused persons faced trial in the Court of learned Asst. Sessions Judge -cum-Chief Judicial Magistrate, Parlakhemundi, Gajapati in Sessions Case No.6 of 1996 (S.C. No.75 of 1996). The petitioners along with co-accused Jaya Singh, Alekha Pradhan, were charged under section 395 of the Indian Penal Code whereas the co-accused persons Sudarsan Pradhan and Dukhia Singh were charged under section 412 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 26.02.1997 has been pleased to acquit the co-accused persons Sudarsan Pradhan and Dukhia Singh of the charge under section 412 of the Indian Penal Code and also the co-accused persons Jaya Singh and Alekha Pradhan of the charge under section 395 of the Indian Penal Code and while acquitting the petitioners of the charge under section 395 of the Indian Penal Code, convicted them under section 392 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years. The petitioners preferred an appeal in the Court of Session which was heard by learned Addl. Sessions Judge, Gajapati, Parlakhemundi in Criminal Appeal No. 3 of 1997 and the learned Appellate Court vide judgment and order dated 06.03.2000 has been pleased to dismiss the appeal and upheld the judgment and order of conviction of the learned Trial Court, hence the revision. 2. The prosecution case, as per the First Information Report dated 02.09.1994 lodged by one E. Bansidhar (P.W.11) before the officer in charge of R. Udayagiri Police Station is that on 02.09.1994 at about 11.00 a.m., the informant (P.W.11) along with drivers Narendra Kumar Das (P.W.9) and Raghunath Behera (P.W.10) came to the Treasury Office in a jeep of the Block Office bearing Registration No. OSG 8441 to submit the salary bills of the employees of Nuagada Block office. Seventeen bills were passed and carrying Rs. 2,24,672/-, the informant was returning to Nuagada at about 8.10 p.m. On the way about 2½ kms. away from the R. Udayagiri, at about 8.30 p.m., they found that stones have been stacked on the road blocking the passage. Seventeen bills were passed and carrying Rs. 2,24,672/-, the informant was returning to Nuagada at about 8.10 p.m. On the way about 2½ kms. away from the R. Udayagiri, at about 8.30 p.m., they found that stones have been stacked on the road blocking the passage. The driver Narendra Kumar Das (P.W.9) stopped the jeep and at that point of time six to seven persons came out of the jungle being armed with weapons and one of them who was armed with a sword asked the driver to switch off the head light of the jeep. The culprits searched the vehicle and took away the bag containing money. At that point of time when another jeep came from the side of the Khazuripada, the culprits left the place and fled away inside the jungle. The informant along with others came to the Tahasildar, R. Udayagiri and then came to the police station and reported the matter. According to the informant, some of the culprits were speaking in Hindi and some in Odiya and all the culprits had tied handkerchief on their faces for which their eyes were only visible and out of them, one was tall and all the culprits were of dark complexion and they were of aged about 32 to 35 years. The informant mentioned in the F.I.R. that he can identify the culprits and also gave the denomination of the currency notes. On receipt of such information report, P.W.13, the Officer in charge, R. Udayagiri Police Station registered R. Udayagiri P.S. Case No. 31 of 1994 under section 395 of the Indian Penal Code against six to seven unknown persons and took up investigation. He examined the witnesses, visited the spot which is R. Udayagiri-Nuagada road at Budhisilaghat and prepared the spot map Ext.15. P.W.13 along with C.I., R. Udayagiri and other Police staff went to Bombay in search of the accused persons on 21.09.1994. P.W.13 handed over the charge of investigation to C.I., R. Udayagiri Rajendra Satapathy (P.W.16) as per the direction of S.P., Gajapati and D.I.G., (S.R.), Berhampur P.W.16 arrested the petitioner no.1 Danial Singh on 05.10.1994 and on the basis of his statement, the Investigating Officer recovered the bunch of 78 numbers of fifty rupees government currency notes which was found buried in the backyard of the residential house of the petitioner no.1 which was seized under seizure list Ext.1/2. The petitioner no.1 was forwarded to the Court of learned Judicial Magistrate First Class, R. Udayagiri and prayer was made to the learned Magistrate to conduct the T.I. parade in respect of petitioner no.1. On 07.10.1994 P.W.14 K. Dharma Rao Dora, J.M.F.C., R. Udayagiri conducted T.I. parade in respect of petitioner no.1 Danial Singh and the identifying witnesses Narendra Kumar Das (P.W.9) and E. Bansidhar (P.W.11), both identified the petitioner no.1 and accordingly, the T.I. parade report (Ext.7) was prepared. On 06.10.1994 on the production of Smt. Santoshi Singh (P.W.6), wife of petitioner no.3 Prano Singh, the Investigating Officer (P.W.16) seized a sum of Rs.5,000/-under seizure list Ext.5/2. On 08.11.1994, the I.O. (P.W.16) arrested the petitioner no.2 Karnel Pani and from his possession of one bag, one umbrella, one ganji of blue colour, one lungi, one shawl, one knife fitted with wooden handle, cash of Rs.90/-consisting of one 50 rupee of currency note and 4 numbers of ten rupee notes, one torch light and one monkey cap were seized under seizure list Ext.3 and petitioner no.2 was forwarded to the Court. An application was submitted by the I.O. for conducting the T.I. parade. P.W. 14 conducted the T.I. parade in respect of petitioner no.2 Karnel Pani on 11.11.1994 inside Sub-Jail, R. Udayagiri in which E. Bansidhar (P.W.11) and Raghunath Behera (P.W.10) were the identifying witnesses and P.W.11 identified the petitioner no.2 correctly but Raghunath Behera could not identify the suspect correctly and accordingly, P.W.14 prepared the T.I. parade report Ext.10. On 17.11.1994 P.W.14 conducted the T.I. parade in respect of petitioner no.2 Karnel Pani and identifying witnesses Narendra Kumar Das (P.W.9) identified the petitioner no.2 correctly and accordingly, P.W.14 prepared the T.I. parade report (Ext.8). On 18.12.1994 the co-accused Sudarsan Pradhan was arrested and he was also forwarded to the Court. The Investigating Officer then seized the seventeen bills of the office of the B.D.O., Nuagado on 31.12.1994 under seizure list Ext.11 and gave those bills in the zima of P.W.11 E. Bansidhar under zimanama Ext.12. On completion of investigation, P.W.16 submitted charge sheet on 31.12.1994 against the petitioners and other four co-accused persons showing Jay Singh, Prano Singh (petitioner no.3), Alekha Pradhan and Dukhia Singh as absconders. Subsequently, the other accused persons were taken into custody and the case was committed to the Court of Session after observing due committal procedure where the learned C.J.M.-Cum-Asst. On completion of investigation, P.W.16 submitted charge sheet on 31.12.1994 against the petitioners and other four co-accused persons showing Jay Singh, Prano Singh (petitioner no.3), Alekha Pradhan and Dukhia Singh as absconders. Subsequently, the other accused persons were taken into custody and the case was committed to the Court of Session after observing due committal procedure where the learned C.J.M.-Cum-Asst. Sessions Judge, Paralakhemundi framed charges on 06.04.1996 against the petitioners and co-accused Jay Singh and Alekha Pradhan under section 395 of the Indian Penal Code and co-accused persons Sudarsan Pradhan and Dukhia Singh were charged under section 412 of the Indian Penal Code and since the accused persons refuted the charge and pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 3. In order to establish its case, the prosecution examined sixteen witnesses. P.W.1 Suryanarayan Beheradalai, P.W.2 Simadri Paik and P.W.3 Nilakantha Beheradalai did not support the prosecution case for which they were declared hostile by the prosecution. P.W.4 Ramesh Chandra Pradhan was the Tahasildar, R.Udayagiri who was also functioning as Sub-Treasury Officer, R.Udayagiri stated that the informant received cash of Rs. 2,24,000/- (rupees two lakhs twenty four thousand) in favour of Nuagad Block and on the very day, he returned back and informed him that while he was going in the jeep carrying cash, some dacoits committed dacoity. P.W.5 Chakrapani Paika was the Senior Clerk in the R.Udayagiri Sub-Treasury and he stated about the submission of bills by the informant on 2.9.1994 and disbursement of cash on that day. P.W.6 Santoshi Singh, P.W.7 Dipak Kumar Pani and P.W.8 Rajma Singh did not support the prosecution case for which they were declared hostile. P.W.9 Narendra Kumar Das was the driver of the vehicle in which the informant and P.W.10 proceeded to R.Udayagiri Treasury on the date of occurrence. He also stated about the commission of dacoity. He participated in the T.I. parade held on 07.10.1994 and identified petitioner no.1 Danial Singh as one of the culprits and again on 17.11.1994 in the T.I. parade, he identified petitioner no.2 Karnel Pani as another culprit. P.W.10 Raghunath Behera was another driver of the jeep and he went with the informant and P.W.9 on the date of occurrence to R.Udayagiri Treasury and he stated about the collection of cash by the informant and commission of dacoity. P.W.10 Raghunath Behera was another driver of the jeep and he went with the informant and P.W.9 on the date of occurrence to R.Udayagiri Treasury and he stated about the collection of cash by the informant and commission of dacoity. P.W.11 E. Bansidhar is the informant in the case and he was the cashier of the Nuagad Block and he also stated about receipt of the cash from Nuagad Block on the date of occurrence as well as the commission of dacoity. On 07.10.1994 he identified the petitioner no.1 Danial Singh in the T.I. parade and petitioner no.2 Karnel Pani on 11.11.1994 in the T.I. parade. He is a witness to the seizure of the bills under seizure list Ext.11. P.W.12 Biswanath Mallick was the B.D.O., Nuagad Block and he stated that he authorized the informant to present the bills at R.Udayagiri Sub-Treasury and further stated that in the night of occurrence, he received telephone call from the informant regarding commission of dacoity. He visited the spot along with the police officials on the date of occurrence. P.W.13 Debendranath Mahakud was the Officer in charge of R. Udayagiri Police station who is one of the Investigating Officers. P.W.14 K. Dharma Rao Dora was the J.M.F.C., R. Udayagairi who conducted T.I. Parade inside Sub-Jail, R. Udayagiri in respect of the suspects on 7.10.1994, 11.11,1994 and 17.11.1994 and prepared his T.I. parade reports. P.W.15 Durlav Machha did not support the prosecution case for which he was declared hostile. P.W.16 Rajendra Satapathy is the Circle Inspector of Police, R.Udayagiri who is another Investigating Officer. The prosecution exhibited seventeen documents. Exts. 1/2, 3/1 and 5/2 are the seizure lists, Exts.7, 8 and 10 are the T.I. parade reports, Ext.9 is the F.I.R., Ext.10 is the seizure list, Ext.12 is the zimanama, Ext.13 is the book of drawal of B.D.O, Nuagado, Ext.14 is the formal F.I.R., Ext.15 is the spot map and Ext.16 & 17 are the applications of P.W.16 to conduct T.I. Parade. The prosecution also proved eleven material objects. M.O.I is the currency notes, M.O.II is the bag, M.O.III is the umbrella, M.O.IV is the one ganji, M.O.V is the lungi, M.O.VI is the shawl, M.O.VII is the knife, M.O.VIII cash of Rs.90/-, M.O.IX is the Monkey cap, M.O.X torch light and M.O.XI bunch of currency notes. The defence plea of the petitioners was one of denial. M.O.I is the currency notes, M.O.II is the bag, M.O.III is the umbrella, M.O.IV is the one ganji, M.O.V is the lungi, M.O.VI is the shawl, M.O.VII is the knife, M.O.VIII cash of Rs.90/-, M.O.IX is the Monkey cap, M.O.X torch light and M.O.XI bunch of currency notes. The defence plea of the petitioners was one of denial. No witness was examined on behalf of the defence but Exts. A, B, C which are the requisitions of the police for conducting T.I. Parade have been proved on behalf of the defence. 4. The learned Trial Court in the impugned judgment has been pleased to observe that from the positive evidence of identification provided by P.W.9 & P.W.11 and the circumstantial evidence, it can be safely concluded that petitioner no.1 Danial Singh, petitioner no.2 Karnel Pani had participated in the dacoity. Learned Trial Court further held that the evidence adduced by the prosecution also indicates the participation of the petitioner no.3 Prano Singh in the dacoity. The learned Trial Court further held that from the analysis of the evidence led by the prosecution, it cannot be said that accused persons Jay Singh and Alekha Pradhan participated in the commission of dacoity. Accordingly, the petitioners were convicted under section 392 of the Indian Penal Code and all other co-accused persons were acquitted of their respective charges. The learned Appellate Court also relying upon the evidence of P.W.9 and P.W.11 as well as the Magistrate (P.W.14) who conducted T.I. parade and the Investigating Officer (P.W.16) has been pleased to confirm the judgment and order of the learned Trial Court. 5. Learned counsel for the petitioner Mr. B.S. Dasparida appearing on behalf of the petitioner contended that the impugned judgments and order of conviction passed by the learned Trial Court as well as Appellate Court are not sustainable in the eye of law. It is further contended that when the informant has mentioned that all the culprits had covered their faces with handkerchiefs and only their eyes were visible and the occurrence took place in the dark night and the T.I. parade has not been conducted in accordance with law, the identification should not have been believed by the Courts below. It is further contended that when the informant has mentioned that all the culprits had covered their faces with handkerchiefs and only their eyes were visible and the occurrence took place in the dark night and the T.I. parade has not been conducted in accordance with law, the identification should not have been believed by the Courts below. He further contented that from the evidence of P.W.9, it appears that he was aware that the culprits belonged to Christian Sahi of R.Udayagiri and therefore, non-mention of such fact in the F.I.R. creates doubt. The learned counsel further contended that the petitioner no.3 Prano Singh was not placed in any T.I. parade and none of the witnesses also identified him in Court and merely basing on the recovery of currency notes on production of the wife of the petitioner no.3, order of conviction should not have been passed. Mr. Deepak Kumar, learned Additional Standing Counsel for the State on the other hand contended that the occurrence in question took place on 02.09.1914, the petitioner no.1 was arrested on 05.10.1994 and T.I. parade was conducted on 07.10.1994 in respect of petitioner no.1 and similarly petitioner no.2 Karnel Pani was arrested on 08.11.1994 and T.I. parade was conducted on 11.11.1994 and 17.11.1994 and therefore, there is absolutely no delay in conducting the test identification parade and since the identifying witnesses P.W.9 and P.W.11 have identified the petitioner no.1 and petitioner no.2 in Court, therefore, there was no infirmity on the part of the learned Courts below to act upon their testimony. Learned State counsel further contended that since the Magistrate conducting test identification parade had taken all the safeguards while conducting T.I. parade inside the Sub-Jail, R. Udayagiri and all procedural formalities were duly carried out and the identifying witnesses while identifying the petitioners nos. 1 and 2 also indicated specific overt act committed by each of such petitioners, therefore, no fault can be found with the conducting of the T.I. parade by P.W.14 and therefore, when both the Courts below have given concurrent findings of facts, in exercise of revisional jurisdiction, this Court should not disturb such finding. 6. 1 and 2 also indicated specific overt act committed by each of such petitioners, therefore, no fault can be found with the conducting of the T.I. parade by P.W.14 and therefore, when both the Courts below have given concurrent findings of facts, in exercise of revisional jurisdiction, this Court should not disturb such finding. 6. Considering the submissions made by the respective parties, it is very clear that so far as the conviction of petitioner no.1 Danial Singh and petitioner no.2 Karnel Pani is concerned, it is based on the identification of P.W.9 and P.W.11 both in Court as well as in T.I. parade. Law is well settled that test identification parade which is conducted during course of investigation is not a substantive piece of evidence and it is meant for the purpose of helping the investigating agency to assure that the investigation into the offence is proceeding on right lines. The evidence of identification can be accepted if the Court is satisfied that the witnesses had at least fair opportunity of seeing the dacoits in sufficient light and if the identification parade is held within reasonable time of incident and the witnesses are not given any opportunity to see the suspects after the arrest till the test identification parade is conducted. 7. Coming to the facts of the case, so far as petitioner no.3 Prano Singh is concerned, admittedly none of the accused persons were named in the First Information Report. The petitioner no.3 Prano Singh was shown as an absconder in the charge sheet. Even after he was taken into custody after submission of charge sheet, no prayer was made for conducting test identification parade. P.W.16, the Investigating Officer stated that on 06.10.1994 Smt. Santosi Singh (P.W.6), who is the wife of Prano Singh produced currency notes of Rs.5,000/- (rupees five thousand) which was seized under seizure list Ext. 5/2. P.W.6 has not supported the prosecution case for which she was declared hostile. The currency notes seized were not proved as stolen property. Therefore, when petitioner no.3 Prano Singh was not placed in any T.I. parade nor he was identified in Court by any of the witnesses, merely basing upon recovery of Rs.5,000/- (five thousand only) as stated by the Investigating Officer on being produced by the wife of petitioner no.3, it is very risky to hold that petitioner no.3 participated in the offence. Therefore, the impugned judgment and order of conviction of petitioner no.3 Prano Singh is not sustainable in the eye of law and accordingly, the same is hereby set aside. So far as the petitioner no.1 Danial Singh and petitioner no.2 Karnel Pani are concerned, in the First Information Report which was lodged against six to seven unknown persons, it is specifically mentioned that all the culprits had covered their faces with handkerchiefs and only their eyes were visible. No specific peculiarities or characteristics of the eyes of the culprits were indicated in the First Information Report. It was the duty of the Investigating Officer to enquire from the identifying witnesses about any such peculiarities or characteristics of the eyes of the culprits. It is the prosecution case as stated by P.W.11 E. Bansidhar that while coming in the jeep with the cash, they found the road was blocked by stones and when the Jeep was stopped, six to seven persons being armed with sword and knife came near the Jeep and a tall man was wearing ganji and covered his face by handkerchief touched the driver Narendra Das (P.W.9) with a sword and searched the Jeep by torchlight. The culprits also told them to switch off the lights of the Jeep and the tall man showing the sword, took away the bag forcibly and suddenly a Jeep of an institution namely “Prem” came from the front and by its light, he saw those culprits. P.W.10 Raghunath Behera simply stated that when a Jeep came from the front, the culprits fled away with the bag containing money. Similar is the statement of P.W.9. Therefore, the only witness P.W.11 has stated that it is by the light of a Jeep coming from the front, he could see the culprits. When the occurrence had taken place in the dark night and all the accused persons had covered their faces with handkerchief and only their eyes were visible and no special feature of their eyes have been mentioned either in the F.I.R. or in the evidence and only source of light at the spot was the light of a passing Jeep as per the evidence of P.W.11, it is very difficult to accept that in such a situation, the witnesses like P.W.9 and P.W.11 would be in a position to recollect in their memory the special features, if any, of the petitioners nos. 1 and 2 to identify them to correctly in the T.I. parade. There is nothing on record to show that when petitioners nos. 1 and 2 were produced in Court after their arrest, their faces were covered. The petitioner no.1 was taken to his residential house after arrest before the T.I. parade where he gave recovery of cash. There is nothing on record that at that time his face was covered. The precaution having not been taken so as to prevent the identifying witnesses to have a glance of the suspect prior to T.I. parade, it will be unsafe to accept the identification. If P.W.9 was aware that the culprits belonged to Christian Sahi at R. Udayagiri, in ordinary course of nature, he would have disclosed the same to the informant (P.W.11). In absence of such narration in the F.I.R. which becomes relevant under section 11 of the Evidence Act, the identification by P.W.9 regarding the abode of the culprits becomes doubtful. In view of the available materials on records, when both the learned Trial Court as well as the learned Appellate Court have not taken into account the material evidence on record as well as the surrounding circumstances under which the witnesses P.W.9 and P.W.10 stated to have identified the culprits at the spot which does not inspire confidence and simply accepted the identification made in T.I. parade as well as in Court and convicted the petitioners nos.1 and 2 and as discussed above, when the evidence relating to identification by the P.W.9 and P.W.11 is not acceptable, I am of the view that the learned Courts below have committed illegality in convicting the petitioners no.1 and 2 under section 392 of the Indian Penal Code and therefore, the impugned judgment and order of the learned Trial Court as well as learned Appellate Court are not sustainable in the eye of law and hereby set aside and all the petitioners are acquitted of their conviction under section 392 of the Indian Penal Code. The petitioners are on bail by virtue of the order of this Court. They are discharged from liability of their bail bonds. Their personal bonds and the surety bonds stand cancelled. Accordingly, the criminal revision is allowed.