JUDGMENT : All the aforesaid three criminal appeals arising out of common impugned judgment of conviction and order of sentence, are being heard together and disposed of, by this common judgment. 2. Heard, learned counsel for the appellants, Mr. Ananda Kumar Sinha assisted by Mr. Sanjay Kumar Sinha, Advocates in Cr. Appeal (SJ) No. 524 of 2005, Mr. Indrajit Sinha assisted by Mr. Ajay Sah in Cr. Appeal (SJ) No. 660 of 2005 and Ms. Madhulika Dasgupta in Cr. Appeal (SJ) No. 631 of 2005 and learned counsel for the State, Mr. Bijay Gupta, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 660 of 2005, Mr. Sanjay Kumar Singh, learned Additional Public Prosecutor appearing for the State in Cr. Appeal (SJ) No. 631 of 2005, Mr. Ram Prakash Singh, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 524 of 2005. 3. All the three instant Criminal Appeals have been preferred against a common judgment of conviction and order of sentence, both, dated 23.03.2005, passed by learned Additional Sessions Judge 3rd, Dhanbad, in Sessions Trial Case No. 84 of 2004, whereby the appellants namely Kanchan Bagchi @ Kanchan Kumar Bagchi, Md. Shahnawaz @ Dablu, Mukhiya Saw and Sujeet Kumar Singh have been convicted by the learned trial Court for offence committed and punishable under Section 394 of the Indian Penal Code and awarded rigorous imprisonment for five years and they are also sentenced to pay a fine of Rs.1000/- each and in default of payment of fine they are further sentenced to undergo simple imprisonment for three months. The accused person Sahnawaz @ Dablu has been acquitted of the charge under Section 412 of the Indian Penal Code. Anil Sao and Raju Pandey have been acquitted by the learned trial Court, by the same impugned judgment. 4. The prosecution case is based upon the fardbeyan of Pramod Kumar Jaiswal (P.W.1), recorded by Sub-Inspector Vijay Bahadur Singh of Kenduadih Police Station, on 18.08.2003 at about 1.00 hours, where informant has stated that, he was engaged in the business of Ready Made Cloth. He has further stated that on 17.08.2003 at about 9.45 p.m., he along with his friend Yogendra Saw, who also engaged in business of Ready Made Cloth, proceeded from their house to go to Calcutta to bring Ready Made Cloths. He has further stated that on 17.08.2003 at about 9.45 p.m., he along with his friend Yogendra Saw, who also engaged in business of Ready Made Cloth, proceeded from their house to go to Calcutta to bring Ready Made Cloths. He has further stated that, in their bags 5 sacks (Bhagu) were kept and he was having Rs. 32,000/- cash and Yogendra Saw was having 45,000/- in cash with him and he was also having Six Bank Draft of Rs. 10,000/- each. Three of the draft were in the name of Manoj Kumar and other three were in the names of R. Kumar, S. Kumar and B. Kumar. The informant has further stated that, near the Cinema Hall, they boarded a Tempoo, on which two other persons also boarded at the same place. Near Kendua Bridge, 5 other persons also boarded the said Tampoo, as passengers and three persons boarded at Godhar on the said Tempoo. He has further stated that at about 10.00 p.m., when their Tempoo reached near Project officer's office, Godhar, one of the persons, who had boarded the Tempoo near cinema hall, asked the Driver of the Tempoo to stop the Tempoo, pointing a sharp pointed weapon to him. Then the driver of the said Tempoo stopped, the Tempoo and thereafter, two persons, who had boarded near cinema hall, and two persons, who had boarded the Tempoo near Kendua Bridge, frightened him (informant) and his friend from the said Tempoo along with their bags and they forced them to go inside the road, on the point of some weapon. After some distance, all the culprits began to search and they took the cash amount and draft from them and their bags were also taken by them and thereafter the culprits asked them to go away from there and they threatened with dire consequences, if they would tell any person about the said occurrence. The informant has given the age of the culprits in between 25-30 years and also gave their physical feature and their clothings. He has further stated that none of the other passengers of the Tempoo told anything out of fear and the Tempoo went away from there. He could not give the number of the said Tempoo. The informant has further stated that after the occurrence, somehow he reached to his uncles' house in Gandhi Nagar, Dhanbad and told him about the occurrence. He could not give the number of the said Tempoo. The informant has further stated that after the occurrence, somehow he reached to his uncles' house in Gandhi Nagar, Dhanbad and told him about the occurrence. Then they along with his uncle came to Kenduadih via Dhanbad Station and told about the said occurrence to the Patrolling party. The informant claimed that he had seen the culprits and also claimed to identify them. The informant put his signature on the fardbeyan and Yogendra Saw also put his signature on the same. 5. On the basis of the fardbeyan of the informant, Pramod Kumar Jaiswal (P.W.1), the Police registered First Informant Report bearing Kenduadih P.S. Case No. 76 of 2003, dated 18.08.2003, under Section 392 of the Indian Penal Code. Subsequently, Section 392 of the Indian Penal Code has been altered to Section 395 of the Indian Penal Code vide order dated 22.08.2003, passed by the learned Chief Judicial Magistrate, Dhanbad. 6. After investigation, the police submitted charge sheet against all the accused persons vide charge sheet no. 97 of 2003, dated 30.09.2003, under Sections 395 and 412 of the Indian Penal Code. 7. The cognizance of the offence has been taken vide order dated 14.11.2003 and the case has been committed to the court of Sessions vide order dated 06.02.2004. The learned trial Court has framed charge against six accused persons, on 01.07.2004 under Section 395 of the Indian Penal Code and Md. Shahnawaz @ Dablu has separately been charged also under Section 412 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether three witnesses and also exhibited a number of documentary evidences. Pramod Kumar Jaiswal has been examined as P.W.1, Jogendra Kumar Sao, who is also a victim of the said occurrence, has been examined as P.W.2, Mr. Rajesh Kumar Singh, (who is learned Judicial Magistrate, 1st Class, who held the T.I.P. of the accused persons) has been examined as P.W.3. 9. The signature of Pramod Kumar Jaiswal (P.W.1) on the fardbeyan, has been proved and marked as exhibit 1, signature of Jogendra Kumar Saw (P.W.2), on fardbeyan has been proved and marked as exhibit 1/1 and T.I.P. Chart has been proved and marked as exhibit 2. 10. 9. The signature of Pramod Kumar Jaiswal (P.W.1) on the fardbeyan, has been proved and marked as exhibit 1, signature of Jogendra Kumar Saw (P.W.2), on fardbeyan has been proved and marked as exhibit 1/1 and T.I.P. Chart has been proved and marked as exhibit 2. 10. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr. P. C. on 03.03.2005, to which the appellant has stated that he has been falsely implicated in this case. 11. After hearing the parties and after perusal of record, the learned trial court passed the impugned judgment of conviction and order of sentence, which has been assailed by the appellants in these three Criminal Appeals before this Hon'ble Court. As these three appeals are arising out of a common judgment of conviction and order of sentence, these are being heard together and disposed of with this common judgment. 12. Heard, learned counsel for the appellants, Mr. Ananda Kumar Sinha assisted by Mr. Sanjay Kumar Sinha, Advocates, in Cr. Appeal (SJ) No. 524 of 2005, Mr. Indrajit Sinha assisted by Mr. Ajay Sah, Advocates, in Cr. Appeal (SJ) No. 660 of 2005 and Ms. Madhulika Dasgupta, Advocate, in Cr. Appeal (SJ) No. 631 of 2005. Learned counsel for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and as such cannot sustain in eyes of law. Learned counsel for the appellants, Mr. Anand Kumar Sinha has submitted that the conviction of the appellants under Section 394 of the Indian Penal Code is solely based upon Test Identification Parade conducted by P.W.3 (Mr. Rajesh Kumar Singh), learned Judicial Magistrate and chart of Test Identification Parade, which has been proved and marked as exhibit 2. Learned counsel for the appellants, Mr. Anand Kumar Sinha has submitted that in the cross-examination of the learned Judicial Magistrate, Mr. Rajesh Kumar Singh (P.W.3) he has categorically admitted, in paragraph 14 of his cross-examination that witnesses have identified the accused persons by holding their hand and telling their names. Learned counsel for the appellants has further submitted that, if the witnesses are knowing the name of the appellants/accused, as they have identified them during test identification parade then not giving name of the appellants/accused in the First Information Report itself, creates doubt about genesis of this case. Learned counsel for the appellants has further submitted that, if the witnesses are knowing the name of the appellants/accused, as they have identified them during test identification parade then not giving name of the appellants/accused in the First Information Report itself, creates doubt about genesis of this case. Learned counsel for the appellants has further submitted that impugned judgment of conviction and order of sentence is solely, based on the ground of test identification parade, which has lost its sanctity, after perusal of paragraph 14 of the cross-examination of the learned Judicial Magistrate, Mr. Rajesh Kumar Singh (P.W.3) and as such appellants may be acquitted from the charge and conviction under Section 394 of the Indian Penal Code by giving benefit of doubt. Learned counsel for the appellant, Mr. Indrajit Sinha assisted by Mr. Ajay Sah appearing in Cr. Appeal (SJ) No. 660 of 2005 (Kanchan Bagchi), has submitted that conviction of the appellant under section 394 of the Indian Penal Code cannot sustain in the eyes of law, as there is no evidence with regard to the appellant Kanchan Bagchi, and as such the conviction of the appellant under Section 394 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellant, Ms. Madhulika Dasgupta appearing in Cr. Appeal (SJ) No. 631 of 2005 has submitted that there is contradiction in the evidence of the prosecution witnesses and she has also adopted the argument made by Mr. Anand Kumar Sinha appearing in Cr. Appeal (SJ) No. 524 of 2005 and Mr. Indrajit Sinha in Cr. Appeal (SJ) No. 660 of 2005 and has prayed that appellant be acquitted from charge and conviction under Section 394 of the Indian Penal Code by giving the benefit of doubt. 13. Mr. Vijay Kumar Gupta, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 660 of 2005 (appellant Kanchan Bagchi), Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 631 of 2005 (appellant Sujeet Kumar Singh) and Mr. Ram Prakash Singh, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 524 of 2005 (appellants Md. Appeal (SJ) No. 660 of 2005 (appellant Kanchan Bagchi), Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 631 of 2005 (appellant Sujeet Kumar Singh) and Mr. Ram Prakash Singh, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 524 of 2005 (appellants Md. Shanawaz @ Dablu and Mukhiya Saw) have jointly submitted that the impugned judgment of conviction and order of sentence is based on material available on record and the learned trial Court has rightly passed order of conviction and sentence, and that may be affirmed and upheld by this Hon’ble Court. 14. After hearing the learned counsel for the appellants, Mr. Ananda Kumar Sinha assisted by Mr. Sanjay Kumar Sinha, Advocates in Cr. Appeal (SJ) No. 524 of 2005, Mr. Indrajit Sinha assisted by Mr. Ajay Sah in Cr. Appeal(SJ) No. 660 of 2005 and Ms. Madhulika Dasgupta in Cr. Appeal (SJ) No. 631 of 2005 and learned counsel for the State, Mr. Vijay Gupta, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 660 of 2005 (Kanchan Bagchi), Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor appearing for the State in Cr. Appeal (SJ) No. 631 of 2005 (Sujeet Kumar Singh) and Mr. Ram Prakash Singh, learned Additional Public Prosecutor appearing for the State, in Cr. Appeal (SJ) No. 524 of 2005 (Md. Sahnawaz @ Dablu and Mukhiya Saw) and from perusal of the First Information Report, charge, evidence of three prosecution witnesses, three exhibits and the statement of the appellants recorded under Section 313 Cr. P. C. and the impugned judgment, this Court is of the opinion that conviction of the appellants is solely on the basis of test identification parade conducted by P.W.3, but in the evidence of P.W.3 (Mr. Rajesh Kumar Singh) at paragraph-14, learned Judicial Magistrate has admitted that the accused persons were identified by the witnesses by holding their hands, but simultaneously, the witnesses have also taken the name of the appellants. It is true that, if the names of the appellants are known to the witnesses, then not mentioning the same in the F.I.R. creates itself doubt about the genesis of this case and if the accused persons are unknown to the witnesses then how they have taken the name of the accused during the Test Identification Parade. It is true that, if the names of the appellants are known to the witnesses, then not mentioning the same in the F.I.R. creates itself doubt about the genesis of this case and if the accused persons are unknown to the witnesses then how they have taken the name of the accused during the Test Identification Parade. The submission made by learned counsel for the appellants is well founded and acceptable to this Court. Test Identification Parade is itself under cloud, which creates doubt about the prosecution case. This Court is of the opinion that the conviction of the appellants under Section 394 I.P.C. cannot sustain in the eyes of law, as there is no evidence with regard to the commission of offence caused upon the victim. 16. Under such background, this Court is of the opinion that appellants are entitled to benefit of doubt, and they are acquitted of the charge and conviction under Section 394 of the Indian Penal Code. 17. Thus, considering the above discussions, the impugned judgment of conviction and order of sentence, both, dated 23.03.2005, passed by the learned Additional Sessions Judge 3rd, Dhanbad, in Sessions Trial No. 84 of 2004 [arising out of Kenduadih P.S. Case No. 76 of 2003, consequent G.R. No. 2340 of 2003], is hereby set aside, and as such, the appellants is acquitted of the charge and conviction under Section 394 of the Indian Penal Code. 18. Accordingly, all the aforesaid three instant criminal appeals stand allowed. 19. The appellants, who are on bail, are discharged from the liability of their bail bonds. 20. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.