JUDGMENT : 1. All the four criminal appeal (SJ) have been heard together and are being disposed of by this common judgment, as they arose from the same sessions trial number. 2. These criminal appeals are directed against the judgment of conviction dated 19.03.2009 and order of sentence dated 21.03.2009 passed by the learned Court of Additional District & Sessions Judge-II Chaibasa in S.T. No. 35 of 2006 whereby and whereunder the learned court below convicted the appellants under section 395 & 397 of the Indian Penal Code and sentenced to undergo R.I. for 5 years and fine of Rs. 3,000/-each for the offence under section 395 of the Indian Penal Code and in default of payment of fine R.I for six months to each of them and to undergo R.I. for 7 years each for the offence under section 397 of the Indian Penal. Both the sentences were ordered to run concurrently. 3. The case of the prosecution as alleged in the FIR by Junash Kaitha that he was going to bed with his wife and children after taking meal at 7.30 in the evening on 05.10.2005. All of sudden, four culprits entered his house and tied his hand back with a towel and started assaulting with danda and demanded money. The informant told them to untie his hand and he opened his Almirah due to fear. One of the dacoits who was of dark complexion and of a good height took out Rs. 8,000/-from Almirah, thereafter all culprits dragged the informant out of the house and demanded money. They took out Rs. 1100/-from the shop also and assaulted him. His wife escaped from the house for fear. In the mean time, the dacoits tied this informant and his son in the house. After some time, when the informant came out of the house, he saw that dacoits had broken the lock of the grill of Father Bodra ( P.W. 4) and taken out the motorcycle bearing registration No. JH 05 G 6524. Among the culprits two were of tall height and dark complextion and wore shirt, pant and two were of short height and wore full pant shirt and were of fair colour. The informant also alleged that one of the culprits who was of fair colour and short height took out a solar plate from his house, the accused persons were speaking local language. The informant also alleged that one of the culprits who was of fair colour and short height took out a solar plate from his house, the accused persons were speaking local language. In FIR, he claimed to identify the accused persons. The accused persons fled away with motorcycle and taking all the looted articles. 4. The Police lodged Manoharpur P.S. Case No. 35 dated 06.10.2005 under sections 394 of the Indian Penal Code and subsequently added Section 395/412 IPC in course of investigation. After completion of investigation, police submitted charge sheet. After taking cognizance of the aforesaid offence the case was committed to the court of sessions for trial. The Accused persons denied the allegation and claimed to be tried. Accordingly trial was held, after the conclusion of which the accused were found guilty and sentenced as aforesaid. Hence, this appeal. 5. Prosecution has examined altogether 10 witnesses in support of its case. They are P.W. 1 Ranjit Kaitha, son of the informant. P.W. 2 Biswasi Kaitha, wife of informant, P.W. 3 Junash Kaitha informant of this case. P.W. 4 Polous Bodra, a person who signed on the FIR and whose motorcycle was looted. P.W.5 Brother Pascal Toppo, P.W. 6 Nirupam Kumar, J.M., who conducted the TIP, P.W. 7 Dr. B.P. Sinha, who examined P.W. 3 injured, P.W. 8 Dominik Surin, seizure list witness, P.W. 9 Bimal Bage, seizure list witness, P.W. 10 Sanjay Kumar Nag, seizure list witness. 6. P.W. 3. Junash Kaitha, informant, had deposed that the occurrence took place on 5.10.2005. In the evening the accused persons entered his house armed with lathi and other arms and started assaulting him. The dacoits also assaulted Ranjeet (P.W. 1) son of Informant. The dacoits took away Rs. 8,000/-from almirah and also Rs. 1100/-from his shop. The informant also saw that dacoits took away the motorcycle bearing registration No. JH 05 G 6524 belonging to Father Polous Bodra (P.W. 4). The dacoits also took away informant's Solar plate. The informant proved his signature on the FIR marked as Ext.-1. The informant stated that he had identified the dacoits who had committed dacoity and assaulted him in test identification parade. However, the informant stated that since the incident occurred long back, he could not identify the dacoits. The dacoits also took away informant's Solar plate. The informant proved his signature on the FIR marked as Ext.-1. The informant stated that he had identified the dacoits who had committed dacoity and assaulted him in test identification parade. However, the informant stated that since the incident occurred long back, he could not identify the dacoits. In cross examination he deposed that he could not identify the accused persons and stated that accused persons who were arrested by the police were shown to him at police station so he identified them. Further he stated that accused persons present in the court were not involved in the dacoity. 7. P.W. 1 Ranjit Kaitha is the son of informant and he deposed in para 3 that dacoits assaulted his father with danda. This P.W. 1 deposed that his father had injury on eyebrow and there was bleeding. He identified five dacoits in test identification parade in jail and amongst them are Samir Surin, Anuranjan Surin, Binod Surin and other two. According to him, the occurrence took place in the evening around 7 to 7.30 and tube light was on, his mother Biswasi Kaitha (P.W. 2) and sister Anastasia were there. At that time, five accused persons/dacoits entered, one boy had danda in his hand. One dacoit also had a pistol and dacoits tied his father and assaulted him and his father. They assaulted his father by danda. This witness stated that dacoits broke the tube light by danda and they looted Rs. 8,000 to Rs. 9,000/-from the Almirah and they also took away money from the shop. He deposed that his mother and sister escaped from the house. Dacoits took away Solar Plate and thereafter a Yamaha motorcycle belonging to Father Bodra. This witness also stated that since the occurrence had taken place long time ago so he could not identify the accused. In cross examination, this witness stated that police had called him and his father and shown the persons and told that they should identify them as the dacoits in test identification parade. 8. P.W. 2 is Biswasi Kaitha, wife of Junash Kaitha. She deposed that the occurrence took place at 7 O' clock in the evening. She corroborated that four dacoits entered her house and they assaulted her husband. She escaped and went to the house of Father Polous Bodra (P.W. 4). She deposed that the dacoits looted Rs. 8. P.W. 2 is Biswasi Kaitha, wife of Junash Kaitha. She deposed that the occurrence took place at 7 O' clock in the evening. She corroborated that four dacoits entered her house and they assaulted her husband. She escaped and went to the house of Father Polous Bodra (P.W. 4). She deposed that the dacoits looted Rs. 9,000/-and a solar plate from her house. 9. P.W. 4 is Polous Bodra or Father Polous Bodra, he deposed that at the time of dacoity Biswasi Kaitha (P.W. 2) and her daughter Anastasia came and informed that some culprits were assaulting Junash Kaitha (P.W. 3) and Ranjit Kaitha (P.W. 1). Receiving this information, he (P.W. 4) and Brother Pascal Toppo (P.W. 5) locked the grill and went to call persons from Brinda Toli. When he came after 10 to 15 minutes, he found that the lock of the grill was broken and motorcycle bearing registration No. JH 05 G 6524 Yamaha of black colour was not available in the varanda. He also deposed that a television remote and his Kurta was missing. This witness stated that he along with Junash Kaitha went to the police station and lodged the FIR. This witness proved his signature on FIR marked as Ext. 1/1. This witness did not see any of the accused persons, but he corroborated the factum of dacoity of the properties including his motorcycle also. 10. P.W. 7 Dr. B.P. Sinha is the doctor who examined the injured informant. According to him, he examined Junash Kaitha and found the following injuries :-1. Traumatic cut and lacerated cut wound on fore-head lateral to right. 2. Bruise 3”x1/4” on let thigh and 1-1/2”x1/4” on let hand posterior region. According to him injuries were simple caused by hard blunt substance and caused by Lathi. The injury report was marked Ext.-3. 11. P.W. 6 Nirupam Kumar is the Judicial Magistrate who had conducted the Test Identification Parade and he proved the test identification chart Ext-2/1 and 2/2. According to him, witness Junash Kaitha ( P.W. 3) had identified Samir Surin, Anuranjan Surin, Chart Ext.-2. P.W. 6 has also stated that Junash Kaitha (P.W. 3) had also identified Binod Surin and Mansid Bading and Nishtar Jojo on test identification parade. He further deposed that witness Ranjit Kaitha (P.W. 1) had identified Binod Surin and Mansid Bodra on test identification parade and that chart is marked Ext.-2/1. 12. P.W. 6 has also stated that Junash Kaitha (P.W. 3) had also identified Binod Surin and Mansid Bading and Nishtar Jojo on test identification parade. He further deposed that witness Ranjit Kaitha (P.W. 1) had identified Binod Surin and Mansid Bodra on test identification parade and that chart is marked Ext.-2/1. 12. P.W. 8 Dominik Soren is a seizure list witness. He deposed that he knows accused Samir Surin and he belongs to his village. He stated that on 13.10.2005 police came and seized articles and he put his signature thereon marked as Ext-4. He denied that police called him in police station. He has deposed that he could not read what was written. He has stated that Solar Plates are sold in the market. 13. P.W. 9 Bimal Bage is a seizure list witness. He deposed that on 13.10.2005 police had come there and seized some articles and prepared a seizure list and he put his signature thereon. He had identified his signature marked as Ext.5. Although he further stated that nothing was recovered before him. 14. P.W. 10 is Sanjay Kumar Nag. He deposed that police seized and prepared seizure list on 12.10.2005 and he put his signature thereon. He had identified his signature marked Ext.-6, although on cross examination, he stated that he was not aware what was written on seizure list. This Ext.-6 seizure list relates to recovery of Motorcycle bearing registration No. JH05G 6524 although the figure 6 is scrapped and Chassis No. 03H 5TS-061014. This bike was recovered from the house of Binod Surin and Birsa Mahto. This motorcycle was looted from the house of P.W. 4, Father Polous Bodra. A R G U M E N T S 15. Learned counsel for the appellants has at the outset argued that the entire case of the prosecution collapses because of the faulty, and in fact illegal investigation. Counsel alleged that the accused or the appellants were shown or identified by the police to the witnesses, and therefore they were recognized by the witnesses at the T.I.P. conducted by the Magistrate. In light of such identification and evidence, the appellants cannot be convicted. Appellants counsel also argued that even the seizures have been faulty and cannot be made basis for conviction. To prove these contention, counsel has taken us through the relevant parts of the deposition or evidence of the witnesses. In light of such identification and evidence, the appellants cannot be convicted. Appellants counsel also argued that even the seizures have been faulty and cannot be made basis for conviction. To prove these contention, counsel has taken us through the relevant parts of the deposition or evidence of the witnesses. First of all counsel for the appellants has pointed out para 14, 15 and para 17 of the deposition of the informant Junash Kaitha P.W. 3, wherein this witness had said that he had not been able to identify the accused and that he had been shown the accused persons in the Jail and therefore, he was able to recognize the accused. In para 17, he said that the persons who are in the dock were not in the incident. Counsel for the appellant has then referred to the deposition of the other witnesses, who had reportedly identified the accused, Ranjit Kaitha, P.W. 1 who is the son of the informant. This witness also deposed in para 18 that he was called to the Police Station and he identified those persons who were shown to him in the Police Station. The evidence of P.W. 3 and P.W. 1 formed the basis for conviction against appellants. Counsel said once the evidence is patently faulty, defective and illegal, it cannot be used for convicting the appellants. Counsel for the appellant has then referred to the seizure list witnesses' deposition. Referring to the evidence of Bimal Bage, P.W. 9 counsel says, he said in para 3 that nothing was seized in his presence. If this is so, then how can he prove Ext.5. Counsel has then referred to the evidence of Sanjay Kumar Nag, P.W. 10. Counsel has said that P.W. 10 deposed in para 2 that he did not know what was on the paper or seizure list. Counsel says, if this is so then how can Ext. 6 be proved. Counsel for the appellant has also referred to the evidence of Dominik Suren, P.W. 8 who has deposed in para 4 that he did not read what was written in the Seizure list and he does not remember whether he signed it or not. He further says Solar Plates are available in the market. 6 be proved. Counsel for the appellant has also referred to the evidence of Dominik Suren, P.W. 8 who has deposed in para 4 that he did not read what was written in the Seizure list and he does not remember whether he signed it or not. He further says Solar Plates are available in the market. Counsel for the appellant then says that it is clear from these witnesses evidence that he does not know what was seized, therefore, Ext.-4 also is not proved. Counsel has then referred to the Ext.-6 and said that this is the seizure list relating to the motorcycle, and said that allegedly stolen motorbike was recovered from the possession of Binod Surin and Birsa Mahto, but the Ext.-6 pertaining to the motor bike has not been proved. Counsel, however, says the motorbike was recovered at Birsa Mahto's place and he has been acquitted, then how can the charges be levelled against these appellants. 16. Learned counsel for the State, APP has argued that the fact of dacoity is established from the evidence of many reliable witnesses, not just one or two. That there was assault on the informant or P.W. 3 is established from the evidence of the doctor. There is no objection to the place of occurrence and two witnesses have identified the appellants in T.I.P and the evidence of P.W. 6, Nirupam Kumar, Judicial Magistrate, concludes that the appellants had been identified. F I N D I N G S 17. Having heard both counsels ; having gone through the records, and in the facts and circumstances of the case, I am led to conclude that though apparently there was an occurrence of the crime, but the accused or appellants were not independently or fairly recognized. From the arguments of learned counsel for the appellants, which he has made with reference to the informant P.W. 3 and his son P.W. 1, it is accepted that they identified the appellants only because they had been shown these persons prior to the T.I. Parade in the jail. This would not be a fair identification, but rather patently irregular and illegal. In fact P.W. 3 the informant has even failed to recognize them in court. The Hon'ble Supreme Court in Suryamoorthi and another Vs. This would not be a fair identification, but rather patently irregular and illegal. In fact P.W. 3 the informant has even failed to recognize them in court. The Hon'ble Supreme Court in Suryamoorthi and another Vs. Govindaswamy and others reported in (1989) 3 SCC 24 , where the identification of the accused were compromised, in para 3 and 10 has held as under;- “3….So far as the test identification is concerned, the accused contend that it was a mere farce since the photographs of the accused had appeared in the local dailies of December 23 and 24, 1972 and they were also shown to the witnesses while in police custody before the actual identification parade was held.” xxx xxx xxx “10. Two identification parades were held in the course of investigation. At the first identification parade P.W.1 identified all the seven accused persons whereas P.W. 2 identified three of them, namely, accused 2, 6 and 7 alone. It is, however, in evidence that before the identification parades were held the photographs of the accused persons had appeared in the local daily newspapers. Besides, the accused persons were in the lock-up for a few days before the identification parades were held and therefore the possibility of their having been shown to the witnesses cannot be ruled out altogether. We do not, therefore, attach much importance to the identification made at the identification parades” 18. The second main limb of the argument is that the seizure list witnesses, or P.W. 9, Bimal Bage, P.W. 10 Sanjay Kumar Nag and P.W. 8 Dominik Surin have been pointed out to be faulty and defective. In fact these witnesses have deposed that nothing was seized in their presence, or that he did not know what was written on the paper or seizure list or that he did not read what was written on the seizure list. Even the seizure of bike has been brought into questions and defense counsel has asserted that the bike was seized from the house of one Birsa Mahto, who was acquitted. Showing of the alleged accused or the appellants by the police to the witnesses is a serious deviation of what is expected from the police. It amounts to the police force being motivated at any costs to secure conviction, and is an attempt to seal off certain doubts that may arise. Showing of the alleged accused or the appellants by the police to the witnesses is a serious deviation of what is expected from the police. It amounts to the police force being motivated at any costs to secure conviction, and is an attempt to seal off certain doubts that may arise. In this instance, the defects in the seizure of P.W. 8, P.W. 9 and P.W. 10, further aggravate the situation. 19. Finally, an unfair T.I.P. and questionable 'seizure lists', would have made I.O. examination important or crucial and since he was not examined, the benefit of such lapse will accrue to the appellants. 20. Having gone through the arguments, facts, records, cited judgments and for my aforesaid reasoning, and relying on the main thrust of the argument against the TIP and seizure list, I am inclined to extend the benefit of doubt to the appellants and hold them not guilty. Accordingly, the judgment of conviction dated 19.03.2009 and order of sentence dated 21.03.2009 passed by the learned court below is set aside. Therefore, the appellants are acquitted from their charges, and they are free from the liabilities of their bail bonds. 21. Appeal is accordingly, allowed. Appeal allowed.