JUDGMENT : Heard learned counsel for the appellant, Mr. Prabir Chatterjee, Advocate and learned counsel for the State, Mr. Mukesh Kumar, learned Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against judgment of conviction dated 15.12.2003 and order of sentence dated 16.12.2003, passed by learned Additional Sessions Judge-XI, Dhanbad, in Sessions Trial No. 546 of 2002, whereby the appellant has been convicted for offence punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for three years and also directed to pay a fine of Rs. 200/- and in default of payment of fine, he shall further undergo simple imprisonment for two months. Being aggrieved by the said impugned judgment of conviction and order of sentence, the appellant has preferred the present Criminal Appeal no. 183 of 2004, on 29.01.2004, which was admitted on 05.03.2004 and the provisional bail granted by the Trial Court vide order dated 16.12.2003 has been confirmed. Since then, the criminal appeal is pending before this Hon’ble Court. 3. The prosecution case is based upon the fardbeyan of the informant, Pradeep Kumar, who is Superintending Engineer in captive power plant, Munidih. It was stated, that in the night of 12th/13th March, 2002, when he was sleeping with his family in his house, then at about 1.45 a.m. of night, he heard sound of fire and soon after that he heard sound of breaking his house door. The miscreants broke down the door by stones and 8-9 unknown miscreants entered into the room. One miscreant was thin, long and was wearing trousers and half shirt, aged about 45 years. He had a pistol in his hand. He covered his wife, children and himself. Other miscreants were of normal body. They were wearing half pant and had sticks, in their hands and they were aged about 20-25 years. One miscreant ordered to take out the things, other threatened to shot. Then informant made request not to assault them and to take all things of the house. After that they took out three chains of gold, from Almirah and snatched three chains from the neck of his wife, mother and daughter and looted Rs. 12,000/- cash, four pieces of gold plated bangles, five pieces of ear rings and toppes of gold and imported binocular, one piece of Alvin watch, one eveready torch etc. After that they took out three chains of gold, from Almirah and snatched three chains from the neck of his wife, mother and daughter and looted Rs. 12,000/- cash, four pieces of gold plated bangles, five pieces of ear rings and toppes of gold and imported binocular, one piece of Alvin watch, one eveready torch etc. The miscreants looted the house about 20-25 minutes and in course of that broke the telephone set of the house, when the miscreants went away, they could not raise alarm due to fear, for half an hour. When they heard the voice of people of mohalla then they came out of their house and came to know that his neighbour, Himanshu Shekhar Himanshu had also been looted and the miscreants had looted the jewellery, watch, ear ring, T.V. remote control etc., from house of Himanshu Shekhar Himanshu too. Informant has claimed to identify the miscreants after seeing them and also the looted things. 4. On the basis of the fardbeyan, police has registered, Putki P.S. Case No. 23/2002 dated 13.03.2002, under Section 395 of the Indian Penal Code. After investigation, the Chargesheet was submitted against 4 (four) accused persons namely 1. Sunil Dutta, 2. Laljee Pashi, 3. Sadhu Pashi, 4. Putul Charu, under Section 395 of the Indian Penal Code. On 05.10.2002 the charge-sheet and case diary were submitted in the court of C.J.M., Dhanbad and cognizance was taken by the court against the accused/appellant, Sunil Dutta noted in column no. 11 of the charge-sheet. The case was committed to the court of Sessions on 13.12.2002 and the charge was framed against the sole accused/appellant namely Sunil Dutta under Section 395 of the Indian Penal Code on 21.01.2003 by learned Trial Court, to which appellant pleaded his innocence and put under trial. 5. The prosecution has examined altogether eight witnesses and has proved the fardbeyan which has been marked as Exhibit-1, signature of the Himanshu Shekhar Himanshu on fardbeyan has been marked as Exhibit-2, signature of the Investigating Officer on F.I.R. and formal F.I.R. has been marked as Exhibit-3 and the T.I.P. report has been marked as Exhibit-4. 6. After closure of the prosecution witnesses, the accused/appellant Sunil Kumar Dutta was examined under Section 313 Cr.P.C. on 25.11.2003, where he has stated, in question no. 3, that he was identified during Test Identification Parade and subsequently in question no. 6. After closure of the prosecution witnesses, the accused/appellant Sunil Kumar Dutta was examined under Section 313 Cr.P.C. on 25.11.2003, where he has stated, in question no. 3, that he was identified during Test Identification Parade and subsequently in question no. 4, he has stated that before his Test Identification Parade, the police took him to the house of the informant, to show his identification. The learned Trial Court, vide impugned judgment has convicted the appellant under Section 395 of the Indian Penal Code. 7. Learned counsel for the appellant, Mr. Prabir Chatterjee has submitted, that it is a case, where sole appellant has been charge-sheeted by the police under Section 395 of the Indian Penal Code and cognizance of the offence has also been taken and the charge has been framed under Section 395 of the Indian Penal Code, without taking judicial notice of, basic requirements for constituting an offence of dacoity under Section 395 of the Indian Penal Code. The police after investigation, has never said that the investigation against the other accused persons is pending while submitting the charge sheet against appellant, rather police has only submitted charge sheet against this appellant (Sunil Kumar Dutta) and in absence of persons less than five, an offence under Section 395 of the Indian Penal Code, cannot be constituted and as such, the impugned judgment of conviction against the appellant under Section 395, is bad in law. Learned counsel for the appellant has further submitted, that although, the appellant has been identified by the informant, in the Test Identification Parade as the person, who was standing outside the house with bomb, but informant in his fardbeyan or in his deposition, has never said that he went out of the house to have an opportunity to identify the accused/appellant. Furthermore, the informant has not identified the accused during trial. In view of judgment as reported in (1998) 3 SCC 625 in case of Ronny @ Ronald James Alwaris & Ors. Vs. State of Maharashtra has held that “the identification of the accused in the Test Identification Parade is not a substantive evidence, the substantive evidence is the statement made by the witness in the court” and as such, this appellant will not come under purview of Section 9 of the Evidence Act. Vs. State of Maharashtra has held that “the identification of the accused in the Test Identification Parade is not a substantive evidence, the substantive evidence is the statement made by the witness in the court” and as such, this appellant will not come under purview of Section 9 of the Evidence Act. Learned counsel for the appellant has further submitted, that without having the basic ingredient for constituting an offence, the appellant has been convicted under Section 395 of the Indian Penal Code. 8. Learned counsel for the State, Mr. Mukesh Kumar, learned Additional Public Prosecutor has vehemently argued the case but has fairly submitted, that from the record, it appears that the sole appellant has been convicted under Section 395 by the police and the learned court has framed charge against sole appellant under Section 395 of the Indian Penal Code, which in his view is also not legally tenable. 9. After hearing, the learned counsel for the Appellant, Mr. Prabir Chatterjee and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor, this court is of the opinion, that charge framed against the appellant under Section 395 of the Indian Penal Code is not sustainable in the eyes of law, as basic requirement to constitute an offence under Section 395 of the Indian Penal Code is, five or more than five accused persons. Consequently, his conviction on the basis of evidence brought on record, where the informant has identified him in Test Identification Parade, as the person, who was standing outside the house but has not identified him in the court during trial is not a substantive piece of evidence and as such, conviction cannot sustain in the eyes of law. 10. In the result, this court is of the opinion, that the appellant is acquitted by giving benefit of doubt. Thus, the impugned judgment of conviction dated 15.12.2003 and order of sentence dated 16.12.2003, passed by learned Additional Sessions Judge- XI, Dhanbad, in Sessions Trial No. 546 of 2002 in connection with Putki P.S. Case No. 23/2002, consequent to G. R. Case No. 642 of 2002, is set aside and the appellant is acquitted of the offence under Section 395 of the Indian Penal Code. 11. The appellant, who is on bail is discharged from the liability of his bail bond. 12. In the result, the present Criminal Appeal stands allowed. 13. 11. The appellant, who is on bail is discharged from the liability of his bail bond. 12. In the result, the present Criminal Appeal stands allowed. 13. Let the lower court record be sent along with a copy of this judgment to the court concerned for necessary action.