JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction dated 25.05.2004 and order of sentence dated 26.05.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No. II, Gumla, in Sessions Trial No. 136 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 395 of the Indian Penal Code and has been awarded rigorous imprisonment for seven years with a fine of Rs. 1,000/- and in default of payment of fine amount, to undergo simple imprisonment for three months. 2. The prosecution case is based upon written report submitted by Arkhita Nand Deoghariya (P.W. 1), before the Officer-in-Charge, Bharno Police Station on 07.07.2002, alleging therein, that on 06.07.2002 at around 9.45 P.M., the informant was in his house, when dacoits lashed with weapon asked the informant to open the door, by claiming that they are members of M.C.C. and if the informant will not open the door, he will put the house on fire. The informant under fear, opened the door and thereafter the dacoits surrounded the informant and targeted the weapon on the head of the informant. The total accused who entered into the house were eight in number. They have looted the ornaments and cash. The articles have been mentioned as two pair of gold earrings, nose tops of gold, three pairs of silver anklet, two-three silver coins, titan wrist watch and cash Rs. 11,800/- from the informant, his wife, his son and his father. The accused persons were having double barrel gun, one sten gun, five dacoits having pistol and two persons were having bhujali (sharp cut weapon). The accused persons after committing dacoity went out of the house and after half an hour, the informant came out of his house, upon hearing brawl in the village and met co-villager Ram Prasad Jaiswal, who has also disclosed that dacoity has been committed in his house and Rs. 5800/- has been looted away. Another co-villager Shiv Prasad Jaiswal, who met the informant has also disclosed that dacoity has been committed in his house and Rs. 4600/-, ornaments of silver and gold and other articles have been looted away by the accused persons. 5800/- has been looted away. Another co-villager Shiv Prasad Jaiswal, who met the informant has also disclosed that dacoity has been committed in his house and Rs. 4600/-, ornaments of silver and gold and other articles have been looted away by the accused persons. The informant has disclosed the appearance of the accused as one is fair in complexion & tall and rest were dark in complexion and all of them were in the age group of 20-30 years having normal built body. The informant has claimed that he along with Ram Prasad Jaiswal and Shiv Prasad Jaiswal can identify the accused after seeing them. The dacoits were using local Hindi language. 3. On the basis of the written report of the informant, police has registered Sisai (Bharno) P.S. Case No. 61 of 2002, dated 07.07.2002, under Section 395 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide charge sheet no. 60 of 2002, dated 25.11.2002, against the appellant Purushottam Lakara @ Hanshu and showing Bisheshwar Bhagat as suspect along with one Rana Bhagat, who has been shown as dead, keeping investigation pending against Suresh Gope, Dinesh Gope, Amit Barla, Bujh Oraon and Harda Oraon. 5. The cognizance of the offence has been taken vide order dated 24.12.2002 and the case has been committed to the Court of Sessions vide order dated 24.04.2003. 6. The charge has been framed against the present appellant along with another accused Bisheshwar Bhagat on 04.07.2003, under Section 395 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether five witnesses and exhibited a number of documents upto Exhibit- 3, in support of its case. Arkhita Nand Deoghariya, informant of the case, has been examined as P.W. 1, Ram Prasad Jaiswal has been examined as P.W. 2, Mukesh Kumar Jaiswal, son of Ram Prasad Jaiswal, has been examined as P.W. 3, Ashif Iqbal, learned Judicial Magistrate, has been examined as P.W. 4 and Kaushik Verma, Advocate Clerk, being a formal witness of case has been examined as P.W. 5. Written report of informant Arkhita Nand Deoghariya has been proved and marked as Exhibit- 1, test identification parade of the accused has been proved and marked as Exhibit- 2 and the formal F.I.R. has been proved and marked as Exhibit- 3. 8. After closure of the prosecution evidence, the statement of the accused/appellant along with co-accused Bisheshwar Bhagat have been recorded under Section 313 Cr.P.C. on 18.05.2004, to which they have denied about any evidence against them but the defence has not examined any witness nor exhibited any documentary evidence. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, whereby the learned Trial Court has convicted the appellant under Section 395 of the Indian Penal Code but by the same impugned judgment, acquitted the co-accused Bisheshwar Bhagat of the charge under Section 395 of the Indian Penal Code by giving benefit of doubt. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant Purushottam Lakara has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsels for the appellant, Mr. Hemant Shikarwar assisted by Mrs. Mani Mala, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as by the same impugned judgment, the learned trial court has acquitted one of the accused Bisheshwar Bhagat. Learned counsel for the appellant has further submitted that the sole evidence, which is against the appellant is that the appellant was identified by the informant Arkhita Nand Deoghariya and Ram Prasad Jaiswal during test identification parade but in the court Ram Prasad Jaiswal has not identified the appellant and as such only on the testimony of the informant, who has identified the appellant, as one of the associate of dacoits, without specifying the act done by the appellant, the learned trial court, has wrongly placed reliance upon the Exhibit- 2, which is test identification and convicted the appellant under Section 395 of the Indian Penal Code. Learned counsel for the appellant has further submitted that the testimony of Arkhita Nand Deoghariya, on the basis of which the appellant has been convicted is itself doubtful. Learned Counsel for the appellant has further submitted that Arkhita Nand Deoghariya (P.W. 1) in his deposition, at paragraph- 2 of his examination-in-chief, has stated that after committing dacoity, when the dacoits left the house, they took son of the informant along with them but from the perusal of the First Information Report, no such averment was made by the informant. Learned counsel for the appellant has further submitted that informant has identified the accused, who had concealed his face as it has been stated by Mukesh Kumar Jaiswal (P.W. 3), son of Ram Prasad Jaiswal without attributing any act against the appellant. Learned counsel for the appellant has further submitted that in the case of Dana Yadav @ Dahu & Ors. versus State of Bihar as reported in (2002) 7 SCC 295 , the Hon’ble Supreme Court has held that: “evidence of identification of the accused before the court, should not ordinarily form the basis of conviction unless corroborated by previous identification in the test identification parade or any other evidence, though there are exception to this rule. Further identification before the Court should not normally be relied upon if the name of the accused is neither written in the First Information Report nor before the Police.” Learned counsel for the appellant has further submitted that though there are eighteen charge sheeted witnesses in the case, but as per the prosecution case, the informant who was in his house along with his family members when dacoity was committed, has only been examined in this case and serious prejudice has been caused because of non-examination of other witnesses, who are inmates of the house at the time of commission of dacoity coupled with the fact that the investigating officer of the case has also not been examined in this case. On the basis of such test identification parade, the appellant has been convicted by the learned trial court. Learned counsel for the appellant has further submitted that on the sole testimony of Arkhita Nand Deoghariya, the appellant has been convicted under Section 395 of the Indian Penal Code although no other corroborative material is there on the record. On the basis of such test identification parade, the appellant has been convicted by the learned trial court. Learned counsel for the appellant has further submitted that on the sole testimony of Arkhita Nand Deoghariya, the appellant has been convicted under Section 395 of the Indian Penal Code although no other corroborative material is there on the record. Ram Prasad Jaiswal (P.W. 2), who has identified the appellant in the test identification parade, has not identified the appellant in the Court. As per the testimony of Arkhita Nand Deoghariya (P.W. 1), this appellant was one of the member of the gang of dacoits. As per evidence of Ram Prasad Jaiswal, this appellant was having sten gun in his hand and as per the evidence of P.W. 3, the accused persons have concealed their face by tying cloth on their face. If all these three prosecution evidence are compared and scrutinized then, it appears that Arkhita Nand Deoghariya has exaggerated his case as, he has stated that his son was taken by dacoits during his deposition, which has not been stated by the informant in the fardbeyan nor by any of the prosecution witnesses. Learned counsel for the appellant has further submitted that the Court cannot put reliance upon the testimony of Arkhita Nand Deoghariya (P.W. 1) as once the dacoity was committed in series by the same group of dacoits and if one witness is saying that they have concealed their face by the cloth, then occasion for identifying the accused by informant, in whose house dacoity has been committed seems to be doubtful as informant has never alleged that what role the appellant was playing at the time of commission of dacoity. Learned counsel for the appellant has further submitted that non-examination of the investigating officer of the case has caused serious prejudice to the appellant as the appellant could not cross-examined the investigating officer to elucidate the fact that after two months of his custody, the appellant was put on test identification parade, and by that time, there was every occasion for the witnesses to see the appellant while producing him in the Court, as the appellant was in custody under Section 167 Cr.P.C., where on every fifteen days, the appellant was produced before the learned Trial Court. Learned counsel for the appellant has further submitted that under the above facts and circumstances, the appellant may be acquitted by extending benefit of doubt, as there is a weak piece of evidence against the appellant. 11. Heard, learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and based on the material available on record and the learned Trial Court has rightly convicted the appellant under Section 395 of the Indian Penal Code. Learned counsel for the State has further submitted that the appellant was not named in the F.I.R. but he has been identified by two witnesses namely Arkhita Nand Deoghariya (P.W. 1) and Ram Prasad Jaiswal (P.W. 2), during test identification parade in presence of the learned Judicial Magistrate, which has been proved and marked as Exhibit- 2. Learned counsel for the State has further submitted, that the informant Arkhita Nand Deoghariya (P.W. 1) has identified the appellant in the dock and as such, the learned Trial Court has rightly convicted the appellant under Section 395 of the Indian Penal Code and acquitted the co-accused Bisheshwar Bhagat of the charge under Section 395 of the Indian Penal Code. 12. Heard, learned counsel for the appellant, Mr. Hemant Shikarwar assisted by Mrs. Mani Mala, Advocates and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. This Court has perused the evidence brought on record including the First Information Report, framing of charge, evidence of five prosecution witnesses, three exhibits including the test identification parade, the statement of the appellant recorded under Section 313 Cr.P.C. and the impugned judgment. This Court has scrutinized the evidence of Arkhita Nand Deoghariya (P.W. 1), who is the informant of the case and has identified the accused in the test identification parade as well as in the Court and his evidence is the sole basis of conviction of the appellant under Section 395 of the Indian Penal Code. This Court, has examined the First Information Report, which is on the basis of written report submitted by Arkhita Nand Deoghariya (P.W. 1). In the written report, the informant has never stated that after committing dacoity in the house, the dacoits have also taken his son. This Court, has examined the First Information Report, which is on the basis of written report submitted by Arkhita Nand Deoghariya (P.W. 1). In the written report, the informant has never stated that after committing dacoity in the house, the dacoits have also taken his son. He remained in house for half an hour and on brawl raised in the village, the informant went out of the house and came to know that dacoity has also been committed in the house of Ram Prasad Jaiswal and Shiv Prasad Jaiswal. Thereafter, they went to lodge the First Information Report in the police station. During examination-in-chief of this witness as P.W. 1, the informant has categorically stated in paragraph- 2 that while the accused persons were returning, after commission of dacoity, they took his son with them. The son of the informant has not been examined in this case nor other inmates of the house of the informant has been examined. The witnesses examined in this case have also not supported the version of the informant, regarding taking of the son of the informant by dacoits. Only on the basis of identification by this witness in the test identification parade, without assigning any role played by the appellant in the dacoity, the appellant has been convicted under Section 395 of the Indian Penal Code, which is a weak piece of evidence without any corroboration. Ram Prasad Jaiswal (P.W. 2) has identified the appellant during test identification parade as the accused having sten gun in his hand, but subsequently not identified the accused in the dock. Mukesh Kumar Jaiswal (P.W. 3), son of Ram Prasad Jaiswal has categorically stated that accused persons have concealed their face by means of cloth. Ashif Iqbal is the Judicial Magistrate, who has conducted the test identification parade, has been examined as P.W. 4. Kaushik Verma (P.W. 5) is a formal witness, who has proved the formal F.I.R. as Exhibit- 3. After due scrutiny and consideration of the evidence, it is clear that only on the basis of the evidence of the informant Arkhita Nand Deoghariya (P.W. 1), the appellant has been convicted under Section 395 of the Indian Penal Code. The judgment, as cited by the counsel for the appellant, i.e. Dana Yadav @ Dahu & Ors. After due scrutiny and consideration of the evidence, it is clear that only on the basis of the evidence of the informant Arkhita Nand Deoghariya (P.W. 1), the appellant has been convicted under Section 395 of the Indian Penal Code. The judgment, as cited by the counsel for the appellant, i.e. Dana Yadav @ Dahu & Ors. versus State of Bihar (supra), is applicable in this case and this Court is of the opinion that such evidence, i.e. test identification parade is a weak piece of evidence without any corroborative material on record, for convicting the appellant under Section 395 of the Indian Penal Code. Apart from this, the credential of Arkhita Nand Deoghariya (P.W. 1) is itself doubtful as Mukesh Kumar Jaiswal (P.W. 3) has categorically stated that all the accused persons have concealed their face. Apart from this informant has tried to exaggerate his case by stating that his son was also taken by the dacoits. All these factors are sufficient to create doubt about authenticity and reliability of the testimony of the informant (P.W. 1) Arkhita Nand Deoghariya. Under the aforesaid background and in view of the judgment of Hon’ble Supreme Court in the case of Dana Yadav (supra), the appellant cannot be convicted on the basis of single identification, which is a weak piece of evidence. This court extends the benefit of doubt in favour of the appellant. 14. In the result, the impugned judgment of conviction dated 25.05.2004 and order of sentence dated 26.05.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No. II, Gumla, in Sessions Trial No. 136 of 2003, in connection with Sisai (Bharno) P.S. Case No. 61 of 2002, corresponding to G. R. No. 394 of 2002, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 395 of the Indian Penal Code by giving benefit of doubt. 15. The appellant, who is on bail, is discharged from the liability of his bail bond. 16. Accordingly, the present criminal appeal is allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.