JUDGMENT : Kailash Prasad Deo, J. 1. The present Criminal Appeal has been preferred by the sole appellant Nandu Hazra, who has been convicted for offence punishable u/s. 395 of the Indian Penal Code vide judgment of conviction dated 23.2.2004 and order of sentence dated 24.2.2004. The impugned judgment of conviction and order of sentence has been passed by learned Additional Sessions Judge-XIII, Dhanbad in Sessions Trial No. 161 of 1996, arising out of Govindpur P.S. Case No. 7/1980 (G.R. No. 1559/1980). That three accused namely Yunus Mian, Nandu Hazra and Mukali Hazra have been put under trial for offence committed u/ss. 395 and 412 of the Indian Penal Code but the Trial Court has acquitted Mukali Hazra and Yunus Mian of the charges u/ss. 395 and 412 of the Indian Penal Code and convicted the sole appellant Nandu Hazra u/ss. 395 of the Indian Penal Code and awarded rigorous imprisonment for 5 years and a fine of Rs. 1,000/- in default of payment of fine, further rigorous imprisonment for six months but no finding with respect to Nandu Hazra was given for the charge u/s. 412 of the Indian Penal Code. 2. The prosecution case in brief is that on 12.5.1980 at around 8 P.M., the informant Md. Tale Hussain, was sitting in his house, in the Village-Kashitand, P.S.-Govindpur, District-Dhanbad. The door of the house was open. All of a sudden 15-20 unknown miscreants armed with pistol, dagger and having torch entered into the house. The miscreants assaulted a tutor who was teaching the children of the informant. Thereafter, the miscreants assaulted the inmates of the house and looted away ornaments, cloths and other articles worth Rs. 3,840/-. In the incident, the father of the informant, Umar Ali, has also sustained injury, who was taken to hospital for treatment. The informant has also stated that dacoity was also committed in the house of his uncle, who will disclose, what are the articles, the dacoit has taken. As his uncle has taken his father to the hospital for treatment. 3. Police recorded the fardbeyan of informant Tale Hussain at 20.30 hrs. on 12.5.1980 and instituted case u/s. 395 of the Indian Penal Code against unknown accused persons. 4. That after investigation, the police submitted charge-sheet vide charge-sheet no. As his uncle has taken his father to the hospital for treatment. 3. Police recorded the fardbeyan of informant Tale Hussain at 20.30 hrs. on 12.5.1980 and instituted case u/s. 395 of the Indian Penal Code against unknown accused persons. 4. That after investigation, the police submitted charge-sheet vide charge-sheet no. 172 dated 29.12.1982 against four persons namely Perka @ Kamruddin @ Fakruddin, Nandu Hazra (appellant), Mukali Hazra and Yunus Mian u/s. 395/412 of the Indian Penal Code. Perka @ Kamruddin @ Fakruddin died during pendency of the case and the case was dropped vide order dated 6.4.1990. The learned Chief Judicial Magistrate, Dhanbad took cognizance of the offence u/s. 395/412 of the Indian Penal Code against Perka @ Fakruddin @ Kamruddin and Mokali Hazra and Yunus Mian vide order dated 19.2.1983 and the case has been committed to the Court of Sessions vide notification dated 15.4.1996. The charge has been framed against Mokali Hazra, Nandu Hazra and Yunus Mian u/s. 395/412 of the Indian Penal Code on 2.5.1998 to which the accused persons pleaded innocence and thus they are put under trial. 5. The prosecution has examined four witnesses and also exhibited test identification parade chart proved by learned Judicial Magistrate. 6. Umar Ali, father of the informant and injured of the case has been examined as P.W. 1. This witness has been declared hostile by the prosecution and has also stated that accused Nandu Hazra is resident of Village-Bhelatand with whom he is acquainted since childhood. This witness has further stated that in the test identification parade conducted by the learned Judicial Magistrate on 16.9.1980, he has not identified Nandu Hazra. This witness has further stated that his statement has never been recorded by the police nor the tooted articles seized by the police, has been put for test identification parade in the jail. 7. Tej Narayan Singh has been examined as P.W. 2 and has also been declared hostile by the prosecution. 8. Mukhlal Singh has been examined as P.W. 3. This witness has not been declared hostile by the prosecution although during examination-in-chief he has stated that he has no knowledge about the occurrence nor his statement has been recorded by the police. 9. Learned Judicial Magistrate, Dhanbad at the relevant point of time has been examined as P.W. 4. 8. Mukhlal Singh has been examined as P.W. 3. This witness has not been declared hostile by the prosecution although during examination-in-chief he has stated that he has no knowledge about the occurrence nor his statement has been recorded by the police. 9. Learned Judicial Magistrate, Dhanbad at the relevant point of time has been examined as P.W. 4. This, witness being a Judicial Magistrate has conducted the test identification parade of 7 suspects of Gobindpur P.S. Case No. 7/1980 u/s. 395 of the Indian Penal Code. After following the due formality of Test Identification Parade, this witness has stated that Tale Hussain has not identified any of the suspects. Umar Ali has identified suspect nos. 1 and 2 (Perka @ Kamruddin @ Fakruddin and Nandu Hazra) and proved the Test Identification Parade chart in his pen and signature and marked the same as Exhibit-1. After closure of the prosecution evidence, the appellant and others are examined u/s. 313 of the Cr.P.C, on 9.1.2004. After hearing, the parties and on perusal of the record, the Trial Court has convicted Nandu Hazra for charged offence but no finding has been given with respect to Section 412 of the Indian Penal Code. However, by the same impugned judgment the learned Trial Court has acquitted Mukali Hazra & Yunis Mian u/ss. 395 and 412 of the Indian Penal Code. 10. Learned counsel for the appellant, Mr. Rajendra Prasad has submitted that Umar Ali, P.W. 1 has not identified the accused in the dock nor has claimed to have identified the accused Nandu Hazra during Test Identification Parade. Learned counsel has further submitted that the police has only submitted charge-sheet against four persons and as such offence u/s. 395 is not made out. The learned counsel has further submitted that even if the prosecution story is taken to be true, then also the charge has wrongly been framed as the charge ought to have been framed u/s. 394 of the Indian Penal Code. It has further been submitted that the P.W. 2 (Tej Narayan Singh) and P.W. 3 (Mukhlal Singh) have been examined on behalf of the prosecution and their evidence are not in consistent with the prosecution case in any manner. As P.W. 2 has been declared hostile by the prosecution and P.W. 3 has categorically stated that he has no knowledge about the occurrence. As P.W. 2 has been declared hostile by the prosecution and P.W. 3 has categorically stated that he has no knowledge about the occurrence. Learned counsel, has further submitted that on the basis of the testimony of the P.W. 4 (learned Judicial Magistrate) who proved the test identification parade chart as Exhibit-1. The appellant cannot be convicted in the background that P.W. 1 (Umar Ali) has categorically stated that he was acquainted with Nandu Hazra since his childhood, as Nandu Hazra is resident of Bhelatand and if Nandu Hazra was involved in the crime his name must have been figured in the First Information Report. Learned counsel for the appellant has also submitted that in this case the Investigating Officer has not been examined. The informant of the case has also not been examined nor the First Information Report has been proved and marked Exhibit. Under such background, the conviction u/s. 395 of the Indian Penal Code of sole appellant cannot sustain in the eyes of law. Learned counsel has further submitted that there is no finding with respect to Section 412 of the Indian Penal Code nor there is any evidence that any looted article has been recovered from the possession - or house of this appellant and as such the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. 11. Learned counsel for the State, Mr. Sudhir Kumar Roy, Additional Public Prosecutor has submitted that it is a case which has been committed in the year 1980 and the Test Identification Parade has been proved as Exhibit-1, which shows that Umar Ali (P.W. 1) has identified the appellant as one of the miscreant involved in the case and as such the judgment of conviction and order of sentence is based on sound reasoning. Learned counsel for the State has fairly submitted that in this case the informant and the Investigating Officer has not been examined but that has not caused any prejudice to the appellant. As such the impugned judgment of conviction and order of sentence does not require any interference by this Hon'ble Court. 12. Learned counsel for the State has fairly submitted that in this case the informant and the Investigating Officer has not been examined but that has not caused any prejudice to the appellant. As such the impugned judgment of conviction and order of sentence does not require any interference by this Hon'ble Court. 12. After hearing the counsel for the appellant and counsel for the State and on perusal of the record, it appears that there is no evidence so far Nandu Hazra is concerned, as P.W. 1 Umar Ali has been declared hostile by the prosecution and has also not supported the Test Identification Parade by stating that he is well acquainted with Nandu Hazra since childhood who is a resident of Bhelatand. Umar Ali (P.W. 1) has thus not substantiated the Test Identification Parade Chart Exhibit-1 during trial in his deposition by adducing substantive piece of evidence. The argument of the learned counsel, for the appellant has some force, if Nandu Hazra was involved in the crime, his name must have figured in the First Information Report. None of the witnesses have supported the prosecution case and on the basis of the Test Identification Parade which has been marked as Exhibit-1, conviction u/s. 395 of the Indian Penal Code cannot sustain in the eyes of law. When witness Umar Ali (P.W. 1) has been declared hostile, who has identified the accused in Test Identification Parade during investigation. 13. The submission of the learned counsel for the appellant that charge-sheet was only submitted against four persons without keeping the case pending for investigation against unknown persons framing of charge under Section 395 of the Indian Penal Code is bad in law, although there was injured persons in this case namely Umar Ali and others, but it is strange that the charge has been framed u/s. 395 of the Indian Penal Code. This argument is well founded argument on behalf of the appellant. This argument is well founded argument on behalf of the appellant. From perusal of the record, it appears that Nandu Hazra has no criminal antecedent and on the basis of only Test Identification Parade chart marked as Exhibit-1 not supported by the witness P.W. 1 during trial, conviction cannot sustain in the eyes of law in the background that Umar Ali (P.W. 1) has not identified the accused in dock rather said that Nandu Hazra is acquainted with him nor Nandu Hazra is named accused so putting reliance on (Exhibit-1) Test Identification Parade Chart not supported by the witness in the court is not a substantial piece of Evidence for conviction. 14. In the result, judgment of conviction dated 23.2.2004 and order of sentence dated 24.2.2004 passed by the Additional Sessions Judge XIII at Dhanbad, in Sessions Trial Case No. 161 of 1996 arising out of Govindpur P.S. Case No. 7 of 1980 arising out of G.R. 1559 of 1980 is hereby set aside and the appellant is acquitted of the charges u/s. 395 of the Indian Penal Code by giving benefit of doubt. Appellant Nandu Hazra is on bail hence, he is discharged from the liabilities of his bail bond. 15. Accordingly, the appeal is allowed and disposed of. Let the record be sent to the lower court at once.