JUDGMENT : 1. Heard learned counsel for the appellant and learned Addl. PP for the State. 2. This appeal has been preferred by the appellant being aggrieved by the Judgment of conviction dated 21.10.2005 and order of sentence dated 22.10.2005 passed by learned Additional Sessions Judge, F.T.C.-V, Hazaribagh in Sessions Trial No. 17 of 2003 whereby and whereunder, the appellant Anwar Khan has been held guilty and convicted for the offence punishable under Section 395 IPC and sentenced to undergo rigorous imprisonment for seven years with fine. 3. The brief fact of this case as unfolded in the fardbeyan submitted by the informant is that in the intervening night of 29th /30th April, 2002 at about 10.45 P.M., while the informant was sleeping in his house, his cousin Siyaram Mahto called him by telling that some persons have come and intend to meet him and when the informant opened his door, he found seven persons armed with country made pistols. They escorted the informant to the house of Dal Chand Mahto and made him sit there. Thereafter, some of the miscreants entered into the house of the informant and demanded keys of the rooms. Along with the informant Siyaram, Dal Chand and Mukesh Mahto also sat in the house of Dal Chand and they were guarded by 3-4 miscreants. The miscreants also entered into the house of Dalchand Mahto, Dhrublal Mahto, Santosh Mahto, Uttam Mahto and took away jewelry and cash from their house. On the basis of the fardbeyan of the informant, police registered Ramgarh P.S. Case No. 170 of 2002 and took up the investigation. 4. After completion of the investigation, police submitted charge sheet against the appellant-accused and continued the investigation of the case against the other persons. On the basis of the fardbeyan of the informant, police registered Ramgarh P.S. Case No. 170 of 2002 and took up the investigation. 4. After completion of the investigation, police submitted charge sheet against the appellant-accused and continued the investigation of the case against the other persons. After commitment of the case to the Court of Session, charge for the offence punishable under Section 395 of IPC was framed against the accused- appellant, which reads as under :- “Name of the accused person Anwar Khan That you on or in between the night of 29th / 30th day of April 2002 at village Jara Tola, P.S.- Ramgarh, Dist.- Hazaribagh, committed dacoity in the house of Balmukund Mahto, Dalchand Mahto, Dhruplal Mahto, Santosh Mahto and Utam Mahto and thereby committed an offence under Section punishable of the 395 Indian Penal code, and within my cognizance and I hereby direct that you be tried by me on the said charge.” and upon the appellant-accused pleading not guilty to the charge, he was put to trial. 5. In support of its case, the prosecution has altogether examined seven witnesses. P.W. 1- Dhruplal Mahto, has stated that the occurrence took place on 29.04.2002. He was sleeping on the roof of his house. On hearing some noise, he woke up and came to his courtyard and asked his mother as to who was sitting in the courtyard. One of the persons sitting in the courtyard disclosed himself to be a member of M.C.C. party and told that they have come to verify whether P.W. 1 was keeping any revolver. Three persons entered into the house and broke the box and took away jewelry from there. In another room, after breaking the box, they also took gold and ornaments. The miscreants committed dacoity in the house of Siyaram Mahto, Dalchand Mahto, Uttam Mahto and Santosh Mahto also and they were 25-30 in numbers. They committed dacoity for about two hours and after commission of the dacoity, they went towards the jungle. He further identified the appellant-accused, who was present in the Court and he also went for T.I. Parade to jail and there also, he identified the appellant-accused. In his cross-examination, he has stated that at about 1.00 AM in the night of the occurrence, he reached police station and police recorded his statement and also the statements of other witnesses. He further identified the appellant-accused, who was present in the Court and he also went for T.I. Parade to jail and there also, he identified the appellant-accused. In his cross-examination, he has stated that at about 1.00 AM in the night of the occurrence, he reached police station and police recorded his statement and also the statements of other witnesses. In paragraph 7 of his cross-examination, he has stated that one of the dacoits was arrested by police and after that P.W.1 went to police station where he saw the dacoit in the lock up of police station. He also admitted that other witnesses of this case namely Dalchand Mahto, Raghu Mahto, Bal Mukund had also seen appellant-accused person. After sixteen days, he went to identify the accused person in T.I.P. The miscreants were not wearing the uniform of M.C.C. Only three persons entered inside his house but he could not identify them. The dacoits did not use any force against the inmates of the house nor they assaulted anyone. The Investigating Officer did not seize the broken box. He informed police over phone and police came immediately. 6. P.W.2- Dalchand Mahto has stated that the occurrence took place on 29.04.2002. Ten to twelve miscreants came and asked for drinking water and the miscreants disclosed that they were the members of M.C.C. party and they have come in search of gun and revolver. The miscreants forcibly entered into the house of Balmukund Mahto and thereafter, they entered into the house of P.W.2. They asked for the keys of the box and out of fear, P.W. 2 handed over the keys to them. Then, they opened the box and took away gold ornaments, cash and wrist watch. He identified three of the dacoits. He identified one of the miscreants in the T.I.P. and he identified the appellant-accused in the Court as the person to whom he identified in T.I.P. In his cross-examination, he has stated that news was spread that one dacoit has been apprehended by police and on getting the information, he reached police station. The police officer asked him whether the person in his custody was the miscreant involved in the occurrence and P.W.2 answered in affirmative. Other witnesses of this case were also present and stated the same thing. 7. The police officer asked him whether the person in his custody was the miscreant involved in the occurrence and P.W.2 answered in affirmative. Other witnesses of this case were also present and stated the same thing. 7. P.W. 3- Raghu Mahto has stated that the occurrence took place on 29.04.2002 at about 10.00 PM to 10.30 PM. He was sleeping in his courtyard. Three-four persons came and forcibly took him to the courtyard of Siyaram Mahto and enquired whether he has any firearm. They disclosed themselves to be members of M.C.C. and took gold, silver and cash from the box and went away. P.W.3 went to jail for T.I.P. after 15-16 days of the occurrence. He identified one of the miscreants in the T.I.P. and he stated that the appellant-accused is the same person whom he had seen in the Court and even in the T.I.P. He is the same person whom he saw taking out gold and silver and frequently going inside and coming out of the house at the time of the occurrence. In his cross-examination, he has stated that he alone went to the jail for T.I.P. and no one else had gone with him. He did not go to police station on the day when the dacoit was arrested by police and for the first time, after the incidence, he saw the appellant –accused during T.I.P. He has further stated that the time of occurrence was a moon-lit night. 8. P.W.4 - Bal Mukund Mahto stated that the occurrence was of 29th April, 2002 between 10.30 PM to 10.45 PM. He was sleeping inside his house and on being called by his cousin brother- Siyaram Mahto, he opened the door. Three persons entered inside the house. They were armed with pistol and at the point of pistol, P.W.4 was taken out from his house and they made him to sit in the courtyard of Siyaram Mahto. Thereafter 2-3 miscreants at the point of pistol took P.W.3 to his room and ordered him to open the box or else he will be killed. The miscreants took away gold and silver jewelries and cash of Rs. 15,000/-. Thereafter, P.W.4 was again taken to the courtyard of Siyaram and at the point of pistol he was made to sit there. The miscreants took away gold and silver jewelries and cash of Rs. 15,000/-. Thereafter, P.W.4 was again taken to the courtyard of Siyaram and at the point of pistol he was made to sit there. Thereafter these miscreants committed dacoity in the house of Dalchand Mahto, Dhupchand Mahto, Santosh Mahto and UIttam Mahto one after the other. He went to jail along with Dalchand Mahto, Raghu Mahto and Dhruplal Mahto for T.I.P. He identified one of the miscreants in the T.I.P., whom he saw at the time of entering into the house and P.W. 4 identified the appellant-accused who was present in the Court as the person whom he identified in the T.I.P. He proved his signature and the signature of the other witnesses on the fardbeyan which was marked as Exhibit 1, 1/1 and 1/2 respectively. In his cross-examination, he stated that though police did not tell him the name of the arrested accused but he saw the accused while he was in custody. The faces of some of the dacoits were covered while the faces of others were not covered during occurrence. In paragraph 15, he has stated that police brought the apprehended dacoit to the village but due to illness P.W.4 could not see him, nor he has ever seen the photograph of the dacoit. In paragraph 17, he has stated that it was dark at the time of occurrence. 9. P.W.5- Tewarun Uraon, is the Investigating Officer of the case. He has stated about the institution of the case on the basis of fardbeyan and on being proved by him, fardbeyan was marked as Exhibit 2 and forwarding endorsement on fardbeyan was marked as Exhibit 2/1. The endorsement regarding registration of the case was marked as Exhibit 2/2 and the formal F.I.R. was marked as Exhibit 1/3. After entrustment of the investigation of the case, he visited the place of occurrence. P.W.5 described the place of occurrence in detail. He recorded the statement of the witnesses. He further stated that on 15.05.2002, the witnesses Balmunkund, Raghu, Dalchand, and Dhruplal Mahto identified the accused- appellant in the T.I.P. and after completion of the investigation, he submitted the charge-sheet against the appellant-accused for having committed the offence punishable under Section 395 IPC. He also proved the carbon copy of the T.I.P. chart which was marked as Exhibit 4. He further stated that on 15.05.2002, the witnesses Balmunkund, Raghu, Dalchand, and Dhruplal Mahto identified the accused- appellant in the T.I.P. and after completion of the investigation, he submitted the charge-sheet against the appellant-accused for having committed the offence punishable under Section 395 IPC. He also proved the carbon copy of the T.I.P. chart which was marked as Exhibit 4. In his cross-examination, he has stated that he has not mentioned in the diary as to when he took up the investigation of the case. He did not see anything to be seized from the place of occurrence because there was neither broken box nor locks nor anyone handed over him any broken item. 10. P.W.6- Moti Ram, is a formal witness. He has proved the formal F.I.R., which was marked as Exhibit 5. In his cross-examination, he has stated that he does not know where the scribe of Exhibit 5 is posted though he is alive. 11. P.W.7- Pradeep Kumar Shukla is the Magistrate, who conducted T.I.P. of the appellant-accused person on 16.05.2002. He has stated about the T.I.P. conducted by him. He further stated that P.W.1, P.W.2, P.W.3 and P.W.4 identified the accused -appellant in the T.I.P. by stating that the appellant-accused person was holding revolver and he was looting gold etc. after breaking the box. 12. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the accusations and pleaded innocence. No evidence was adduced on behalf of the appellant. 13. Taking into consideration the oral and documentary evidence available in the record, learned Court below convicted and sentenced the appellant-accused person as already indicated above. 14. Mr. B. K. Dubey learned counsel for the appellant drawing attention of the Court to the charge framed in this case submitted that the charge has been framed against only one person for having committed the offence punishable under Section 395 IPC which is not permissible in law as to commit the offence of dacoity there has to be at least five persons and as the charge is silent about the same, thus the appellant-accused was made to face a trial without knowing the exact allegation against him for which he has ultimately been convicted, hence the trial is vitiated. It was further submitted by learned counsel for the appellant that two out of four prosecution witnesses being P.W.1, P.W.2 had occasion to see the appellant-accused persons while he was in police custody before T.I.P. So, identification in the T.I.P. was farce and such T.I.P. can no way help the prosecution. It is further submitted by the learned counsel for the appellant that there is discrepancy in the evidence of the prosecution regarding there being any broken box or lock at the place of occurrence as the P.W.5 – the Investigating Officer has categorically stated that he did not find any broken box or locks at the place of occurrence. It is then submitted by learned counsel for the appellant that the Investigating Officer has failed to explain the delay in conducting the T.I.P., which creates a doubt about the case of the prosecution. It is next submitted that keeping in view the fact that the evidence in the record suggests that no overt act of use force like assault or abuse having meted out to the victims and there being specific evidence in the record coming from the mouth of the material witnesses of the prosecution that ladies of the house were permitted to move freely even during the commission of the alleged dacoity and the fact that apart from the identification by the witnesses in the T.I.P., there is no other supporting material like seizure of any looted article from anybody during investigation or seizure of any firearm allegedly used by the appellant –accused persons as well as the contradictions in the testimony of P.W.7.- the Magistrate who conducted T.I.P. wherein he has stated that the appellant-accused was identified by the witnesses as the person holding a pistol and was taking out ornaments by breaking the box whereas P.W.1 has not attributed any specific role to the appellant-accused at the time of the commission of the dacoity and other three witnesses who identified the appellant-accused in the T.I.P. being P.W.2, P.W.3 and P.W. 4 having not stated that he was either holding the revolver or that he was the person whom they saw breaking the box and taking out the jewelry, certainly casts doubt on the case of the prosecution. It is lastly submitted that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 395 IPC against the appellant- accused person beyond reasonable doubt, thus the appellant –accused person be acquitted by at least giving him the benefit of doubt. 15. Mr. Pankaj Kumar, the learned Addl. PP on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that the defect in the charge if any, is protected by Section 464 of the Cr.P.C. which envisages that no finding, sentence or order by a Court of competent jurisdiction shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error commission or irregularity in the charge, unless in opinion of the Court of appeal, the failure of justice in fact has occasioned to the convict. Learned counsel further submitted that it was neither the case of the appellant that in the learned Court below that any defect in the charge has occasioned any failure of justice as the appellant-accused was very much aware about the allegations against him, as word ‘dacoity’ has been used in the charge which he was facing in the trial, hence, learned Addl. PP submitted that conviction of the appellant-accused ought not be interfered on the ground of the defect of the charge. Learned Addl. PP further submitted that the testimony of P.W.2 and P.W.4 so far as their identification in the T.I.P. and subsequently in the Court, has remained trustworthy and nothing has been elicited in their cross-examination to disbelieve their testimony. It is then submitted that these two witnesses had the occasion to see the appellant –accused for more than two hours at the time of commission of the alleged dacoity and they have categorically stated about the commission of the dacoity and involvement of the appellant-accused person therein, hence, learned Addl. PP submitted that the evidence in record is sufficient to establish the charge for the offence punishable under Section 395 IPC against appellant-accused person beyond reasonable doubt, and as, the learned Court below has rightly convicted and sentenced the appellant-accused person he submitted that this appeal being without any merit be dismissed. 16. PP submitted that the evidence in record is sufficient to establish the charge for the offence punishable under Section 395 IPC against appellant-accused person beyond reasonable doubt, and as, the learned Court below has rightly convicted and sentenced the appellant-accused person he submitted that this appeal being without any merit be dismissed. 16. Having heard the submissions made at the Bar and after perusal of the record, it is found that the appellant was arrested on 04.05.2002 and T.I.P. was held on 16.05.2002 and hence, there was delay of twelve days in conducting the T.I.P. which remains unexplained. There has been evidence through P.W.1 that all the four witnesses being P.W.1, P.W.2, P.W.3 and P.W.4 had occasion to see the appellant-accused while the appellant –accused person was in police lock up though P.W.3 and P.W.4 have denied the same in their testimonies but the testimony of P.W.3 that he alone went for T.I.P. also stands contradicted by the other prosecution witnesses including P.W.7- the Magistrate, who has deposed about all the said four witnesses to the T.I.P. having identified the appellant –accused person on 16.05.2002. There is discrepancy in evidence regarding the role played by the appellant-accused person as stated by the witnesses before PW7- the Magistrate who conducted the T.I.P. before whom they stated that the appellant-accused person was holding a revolver and was taking out jewelry after breaking the box whereas in their testimonies in Court they have not whispered about the same, rather as already indicated above the P.W.3 has deposed that the appellant –accused person was frequently going inside and coming out of the house that made him remember the appellant –accused person. Apart from identification of the accused person in Court by the witnesses, there is no supporting material like seizure of any looted property or any firearm used by the appellant-accused person in the alleged dacoity. Apart from identification of the accused person in Court by the witnesses, there is no supporting material like seizure of any looted property or any firearm used by the appellant-accused person in the alleged dacoity. The fact that the Investigating Officer did not find any broken box or lock at the place of occurrence though police immediately reached at the place of occurrence after the occurrence as is evident from the fact that the fardbeyan was recorded at 2.00 AM on 30.04.2002, also creates doubt about commission of the dacoity more so because the conduct of the dacoits in allowing the women of the house to move freely during dacoity and the women of the houses did not go out to seek support of the villagers, when they were free to move when the alleged dacoity continued for a period about two hours, which is without doubt against the normal human conduct also raises doubt about the occurrence. It is a settled principle of law that in case of unexplained and unreasonable delay in putting up the accused person for test identification, the delay by itself, detracts from the credibility of the test. The Hon’ble Supreme Court of India in this respect held in paragraph -16 of the case of Hari Nath v. State of U.P. reported in (1988) 1 SCC 14 as under:- “16. … the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.” It is also a settled principle of law that if the person put in the test identification parade is shown to the identifier before the test identification parade, in such a case the test identification parade loses its value. Further it is a settled principle of law that the recovery of the stolen property and the arms used by the appellant-accused person are important pieces of evidence in a case of dacoity. Further it is a settled principle of law that the recovery of the stolen property and the arms used by the appellant-accused person are important pieces of evidence in a case of dacoity. After giving anxious consideration to the facts of this case and the settled principle of law as discussed above this court has no hesitation in holding that this is a fit case where the appellant-accused person be acquitted of the charge by giving him the benefit of doubt. Accordingly, the impugned Judgment of conviction dated 21.10.2005 and order of sentence dated 22.10.2005 passed by the learned Additional Sessions Judge, F.T.C.-V, Hazaribagh in Sessions Trial No. 17 of 2003 being not sustainable in the law, is set aside and the appellant Anwar Khan is acquitted of the charge under section 395 of the Indian Penal Code. The appellant Anwar Khan Singh is on bail, in view of his acquittal, he is discharged of the liability of his bail bond. 17. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. 18. In result, this appeal is allowed.