JUDGMENT : Heard the parties. 2. The appellant has preferred this appeal being aggrieved by the Judgment of conviction dated 21.12.2005 and Order of sentence dated 22.12.2005 passed by the learned Additional Sessions Judge, Fast Track Court -VI, Hazaribagh, in Sessions Trial No. 77 of 2004 whereby and where under, the appellant-accused person has been convicted for the offence punishable under Section 395 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for seven years and fine of Rs.2000/- with the default clause. 3. The case of the prosecution in brief is that in the intervening night of 9th -10th May, 2003 some of the miscreants variously armed came to the house of the informant and representing themselves to be the members of the M.C.C., told the informant to open the door of his house as they wanted to take him to the meeting. The informant went to the roof of his house and saw the miscreants without opening the door. As the miscreants fired a gun shot, the informant out of fear opened the door. After opening of the door by the informant, the miscreants entered inside the house and assembled the members of family of the informant at a place and inquired about the sixer (a revolver containing six cartridges) which the informant brought from Japan and demanded that the sixer be handed over to them. When the informant told that he does not have any sixer, the miscreants locked all the members of the family of the informant in a room and started searching the house of the informant. After the search, the miscreants informed the informant that they did not find any sixer in his house and told the informant that there is a sixer with the elder brother of the informant and after taking the informant they made the elder brother of the informant open the door of his house and also entered into the house of the elder brother of the informant and searched his house as well. The miscreants locked the family members of the brother of the informant and threatened that if anybody raises noise, they will shoot. They searched the house of the informant for about two hours. The informant described the physique and age of the miscreants. The miscreants locked the family members of the brother of the informant and threatened that if anybody raises noise, they will shoot. They searched the house of the informant for about two hours. The informant described the physique and age of the miscreants. The miscreants had covered their face with towel but during the occurrence, the towel of one person opened hence the informant could see that person. After the miscreants left, the informant found that several jewelries of his house as well as from the house of his elder brother were taken away by the miscreants. On the basis of the written report of the informant, police registered Barkatha P.S. Case No. 46 of 2003 and took up investigation of the case. After completion of the investigation, police submitted its report. 4. Upon commitment of the case to the court of sessions, charge for the offence punishable under section 395 of the Indian Penal Code was framed against the appellant-accused person. Upon the appellant-accused person pleading not guilty to the charge, he was put to trial. 5. In support of its case, the prosecution has altogether examined 10 witnesses. P.W.1 – Dulari Devi stated that the occurrence took place on 09.05.2003 at about 01:00 A.M. She further stated that the miscreants assembled outside the house of the P.W.1 and threatened his middle brother-in-law, who had gone to the roof of the house to ascertain who the persons were, that unless the door is opened they will destroy his house by exploding bombs. Her elder brother-in-law, who is the informant of this case, opened the door out of fear. 4-5 persons entered inside the house and demanded sixer (a revolver containing six cartridges) from the informant. When the informant told the miscreants that he does not have any Sixer, the miscreants made the P.W.1 and other members of the family sit in the courtyard and thereafter locked them in a room and looted the jewelries and cash from the house. Thereafter the miscreants took the P.W.1 and others from the first room where they were locked to another room and looted that room also and threatened that if they raise noise, they will kill the informant. Thereafter the miscreants took the P.W.1 and others from the first room where they were locked to another room and looted that room also and threatened that if they raise noise, they will kill the informant. Thereafter they made the elder brother-in-law (Bhaisur) of the P.W.1 namely Chandradeo Prasad to open the door and also looted from his house after locking the members of his family along with the P.W.1 and others. P.W.1 could identify the appellant-accused person. She did not know the appellant-accused person earlier. Later on when she went to her paternal house, there she identified the appellant-accused person. After apprehending the appellant-accused person police called the P.W.1 to police station for his identification. There also P.W.1 identified the appellant-accused person and came to know that his name is Murli Yadav. She also identified the appellant-accused person in court. In her cross-examination, the P.W.1 has stated that she does not know that the appellant-accused person was residing in the same house with the brother of the P.W.1 and was studying in the Tilaiya College and that the appellant-accused person owns a 407 vehicle. She did not disclose the name of the appellant-accused to police but told that she knows one of the miscreants. The occurrence took place in a moonlit night. All the miscreants covered their faces with clothes but the face of the appellant-accused was open during the occurrence. He tied a small muffler like cloth over his face. P.W.1 lighted the lantern. 6. P.W.2 – Sambhu Nath Prasad has stated that the occurrence took place on 09.05.2003 at 01:00 A.M. He is the brother of the informant. On hearing voice to open the door, the informant went up to the roof of the house and saw that the miscreants were standing outside. They brandished pistol and other weapons and claimed that they are the members of M.C.C. and threatened that unless the door is opened, they will kill. The informant came down from the roof of the house and opened the door. 3 to 4 miscreants entered inside the house and told the informant to show his revolver. They brandished pistol and other weapons and claimed that they are the members of M.C.C. and threatened that unless the door is opened, they will kill. The informant came down from the roof of the house and opened the door. 3 to 4 miscreants entered inside the house and told the informant to show his revolver. The informant disclosed that he does not have any revolver and thereafter the miscreants after threatening that if they raise noise they will be killed, first assembled the members of the family in the courtyard and made them sit there and thereafter locked them inside the room and looted the jewelries and valuables of the house. The P.W.2 could not identify any of the miscreants and did not identify the appellant-accused who was present in the court. The defence declined to cross-examine the P.W.2. 7. P.W.3 – Khusbu Devi has also stated about the occurrence taking place on 09.05.2003 at 01:00 A.M. and the miscreants coming and looting the articles as deposed by the P.W. 1 and 2. She also could not identify any of the miscreants. The miscreants covered their faces with clothes. She also could not identify the appellant-accused person who was present in the court at the time of her adducing evidence. In her cross-examination, she has stated that at the time of occurrence, there was no electricity connection in the house. 8. P.W.4 – Chandra Deo Prasad has also stated about the miscreants coming and locking the house and looting the valuables from the house. He identified one of the miscreants who disclosed himself to be the area commander but he cannot say the name of the appellant-accused and told that after the occurrence, he saw the appellant-accused for the first time. In his cross-examination, the P.W.4 has stated that except the appellant-accused, all other miscreants covered their faces with clothes. The police did not call the P.W.4 for identification anywhere. The lantern was burning at the door from which light was coming to the verandah as well as in the room. The miscreants looted all the valuables from the house of the P.W.4 and carried away the same in a bag. 9. P.W.5 – Urmila Devi, like the P.W.1 to 4 has also stated about the occurrence. She has stated that the occurrence took place on 09.05.2003 after 12:00 mid night. The miscreants looted all the valuables from the house of the P.W.4 and carried away the same in a bag. 9. P.W.5 – Urmila Devi, like the P.W.1 to 4 has also stated about the occurrence. She has stated that the occurrence took place on 09.05.2003 after 12:00 mid night. She further stated that after the door was opened by her father-in-law- Chandra Deo Prasad, 10 to 12 miscreants entered into the house and disclosed that they are not thieves but they are the members of the M.C.C. and have come for revolver checking. At that time, her child started crying. The appellant-accused chided the P.W.5. Her child was ill. The appellant-accused gave her Rs.50/- and one packet biscuit and told that she should get her child treated and thereafter took the key from her and locked her in one of the room along with other family members. She has also stated in detail about the articles looted. In her cross-examination, the P.W.5 has stated that she was not examined by the police. The miscreants had covered their faces with clothes. 10. P.W.6 – Jayanti Devi is the wife of the informant. She like the P.W. 1 to 5 has also stated about the occurrence which according to her took place at 01:00 A.M. one and half years prior to her being examined in court. The miscreants told that they have come for checking the pistol and took the key but they decamped with all the jewelries and valuables of the house including the cash of Rs.10,000/-. She could not identify any of the miscreants and she also could not identify the appellant-accused who was present in the court at the time of her examination. In her cross-examination, the P.W.6 stated that she could not see which miscreant covered his face and who did not cover. 11. P.W.7 – Churaman Mahato has also stated about the occurrence in the same manner as the P.W.1 to 6. According to him, the occurrence took place between 12:00 mid night to 01:00 A.M. about one and half years before his deposing in court. He further stated that the miscreants demanded Rs.11,000/- which was not paid by his sons. Thereafter the miscreants demanded revolver. When the P.W.7 and his family members told that they did not have any revolver, the miscreants locked them in a room and after taking the key searched the house. He further stated that the miscreants demanded Rs.11,000/- which was not paid by his sons. Thereafter the miscreants demanded revolver. When the P.W.7 and his family members told that they did not have any revolver, the miscreants locked them in a room and after taking the key searched the house. They were keeping the informant with them. Along with the informant, the miscreants went to the house of Chandra Deo Prasad and made him open the door of his house and locked him and his daughter-in-law along with P.W.7 and others. In the morning, the informant came and opened the door. P.W.7 claimed that he could identify the dacoits. He identified the appellant-accused person who was present in the court but could not say his name. In his cross-examination, the P.W.7 has stated that there was no electric light. It was moonlit night. By 10 to 11 P.M. the moon light comes to his courtyard. 12. P.W.8-Tulsi Mahto is the informant of the case. He has also stated about the occurrence which took place at the middle of the night on 09.05.2003. He has corroborated the averments made in his written report. He further stated that the miscreants were armed with revolver, sixer, Machine Gun kind of arms. One of them asked the P.W.8 to handover the revolver he has brought from Japan. When the P.W.8 told him that he does not have any revolver, the miscreants told that they would search the house of P.W.8 and after search told that they did not find anything. Thereafter, the miscreants took the P.W.8 to the house of his elder brother and gave one packet of biscuit and Rs.50/- as the granddaughter of his elder brother was crying and thereafter, took the elder brother and his daughter-in-law to the house of the P.W.8 and also locked them there and continued the search of the house of his elder brother by keeping the P.W.8 along with them and also told that the P.W.8 has to pay Rs.10,000/- per year. After the search of the house of the elder brother was complete, they locked the P.W.8 in the house and went away. After the search of the house of the elder brother was complete, they locked the P.W.8 in the house and went away. When the miscreants went away, the P.W.8 opened the door with the help of a stick and came to his house and brought out his family members who were locked in a room and on checking the articles, he found that the jewelry and cash of the house was looted by the miscreants. During course of the occurrence, the face of one or two miscreants was open and the faces of the rest of the miscreants were covered with clothes. He could identify the person whose face was open and that person was present in court while the P.W.1 was deposing in court and the P.W.8 thus identified the appellant-accused person but he could not say his name. After the occurrence, the P.W.8 came to Hazaribag Jail and identified the appellant-accused person, to be the person who was standing near the P.W.8 while catching hold of the hand of the P.W.8 and was armed with a revolver. The appellant-accused person was also the person who was threating that if they will raise noise, he will kill. He has stated that he cannot say out of the miscreants how many covered their faces. He disclosed the police about the theft of Rs.15,000/-. After the occurrence, the P.W.8 could guess that the miscreants were not the members of M.C.C. 13. P.W.9-Rajesh Sinha is the Judicial Magistrate who conducted the Test Identification Parade of the appellant-accused person. He has stated that the Test Identification Parade of the appellant-accused person along with others was conducted in Central Jail, Hazaribag. The witness Dulari Devi(P.W.1) identified the appellant-accused person-Murli Yadav on the Test Identification Parade by telling that he was the person who was present outside the house and on door being opened, he came inside the house and told that they are searching for the sixer and would not do any harm to them. P.W.1 also identified the four other persons who were kept along with appellant-accused person present in the Test Identification Parade who were not the suspect of this case. In the Test Identification Parade, the P.W.8 identified Murli Yadav by telling that the appellant-accused person is the person who was present in front of him. P.W.1 also identified the four other persons who were kept along with appellant-accused person present in the Test Identification Parade who were not the suspect of this case. In the Test Identification Parade, the P.W.8 identified Murli Yadav by telling that the appellant-accused person is the person who was present in front of him. P.W.8 also identified another person who was kept in Test Identification Parade but he was not the suspect of this case. On being proved by the P.W.9, the Test Identification chart was marked Ext. 2. In his cross-examination, the P.W.9 has stated that at the time of Test Identification Parade, the face of the appellant-accused person and other accused persons were not covered. 14. P.W.10- Suresh Prasad Paswan is the Investigating Officer of the case. He has stated that he was the officer-in-charge of Barkatha Police Station on 10.05.2003. On receiving the written report of the informant, the case was instituted. On being proved by him the formal F.I.R. was marked Ext. 3 and the endorsement over the formal F.I.R. regarding the registration of the case was marked Ext. 3/1. He took up investigation of the case and visited the place of occurrence. P.W.10 has described the two places of occurrence in detail with its boundaries. The appellant-accused person was in jail custody in a case related to arms. When he came out from jail, P.W.10 again arrested him. He recorded the confessional statement of the appellant-accused person and put him under the Test Identification Parade and he was identified in the Test Identification Parade. After the investigation, he submitted the report. In his cross-examination, he stated that he arrested the appellant-accused person on 19.07.2003 and got the Test Identification Parade conduced on 25.07.2003. 15. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused person was recorded regarding the circumstances appearing in evidence against him which he did not admit. 16. Learned court below after taking into consideration the evidence in record both, oral and documentary, convicted and sentenced the appellant-accused person as already indicated above. 17. Mr. R.P. Gupta, learned counsel for the appellant submits that the learned court below could not properly appreciate the evidence in record in its proper perspective. 16. Learned court below after taking into consideration the evidence in record both, oral and documentary, convicted and sentenced the appellant-accused person as already indicated above. 17. Mr. R.P. Gupta, learned counsel for the appellant submits that the learned court below could not properly appreciate the evidence in record in its proper perspective. It is further submitted by the learned counsel for the appellant that the learned court below erred in not considering that no alleged looted property was recovered from the appellant-accused person or anybody else during the investigation and also failed to consider that the miscreants were four to five in number. It is further submitted by the learned counsel for the appellant that the learned court below erred in not considering the fact that the Test Identification Parade took place two and half months after the alleged occurrence. It is further submitted that the learned court below failed to take note of the fact that the appellant-accused person was shown to the P.W.1 in the police station before the Test Identification Parade and thus, the Test Identification Parade has lost its significance and has become a farce. It is further submitted that the source of light that is the alleged lantern has not been seized by the police during the investigation and the learned court below failed to consider this fact. It is lastly submitted that because of the lacunae in the evidence in the record, the appellant be at least given the benefit of doubt and in case the conviction is upheld, considering the fact that the appellant was in custody from 19.07.2003 to 07.04.2006 when he was granted bail by this Court vide order dated 07.04.2006 in this appeal and also that he remained in custody from 23.09.2018 to till date and that he has faced the rigors criminal proceeding for a considerable period of time, hence, he should be sentenced for the period he has already undergone in custody. 18. Learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that there is nothing to disbelieve the testimony of P.W.8. He has categorically stated about the occurrence. He identified the appellant-accused person in the Test Identification Parade and also he identified the appellant-accused person in court. 18. Learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that there is nothing to disbelieve the testimony of P.W.8. He has categorically stated about the occurrence. He identified the appellant-accused person in the Test Identification Parade and also he identified the appellant-accused person in court. Nothing has been elicited to discredit or disbelieve his testimony and his testimony is corroborated by the other material witnesses as well as the Judicial Magistrate being the P.W.9 who conducted the Test Identification Parade and thus the evidence in record is sufficient to establish the charge for the offence punishable under Section 395 of the Indian Penal Code against the appellant-accused person beyond reasonable doubt. Hence, it is submitted that the learned court below having rightly convicted and sentenced the appellant-accused person, this appeal being without any merit be dismissed. 19. Having heard the submission made at the Bar and after carefully going through the record, I find that the testimony of the P.W.8 who is the informant of the case is trustworthy and wholly reliable. Nothing has been elicited in his cross-examination to discredit his testimony and his testimony is corroborated by the other material witnesses being the P.Ws.1 to 7. There is absolutely no cross-examination of any of the material witnesses of the case being the P.Ws.1 to 8 challenging the occurrence of dacoity in the house of the informant and his elder brother. Hence, the factum of the occurrence of the dacoity in the house of the informant and his elder brother is to be accepted. True it is that the testimony of the P.W.1 that she had the occasion of seeing the appellant-accused person in the police station before the Test Identification Parade has certainly made the Test Identification Parade of the appellant-accused person to be a farce, so far as his identification by P.W.1 is concerned but apart from P.W.1; the P.W.4, P.W.5 and P.W.7 have also identified the appellant-accused person in court though they were not taken for identification of the appellant-accused person in the Test Identification Parade. It is a settled principle of law that failure to hold a Test Identification Parade would not make inadmissible the evidence of identification in court as has been held by Hon’ble Supreme Court of India in the case of Heera & Anr. Vs. It is a settled principle of law that failure to hold a Test Identification Parade would not make inadmissible the evidence of identification in court as has been held by Hon’ble Supreme Court of India in the case of Heera & Anr. Vs. State of Rajasthan in Criminal Appeal reported in (2007)10 SCC 175 wherein the Hon’ble Supreme Court has held as under :- “It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn ( AIR 1958 SC 350 ), Vaikuntam Chandrappa and others v. State of A.P. ( AIR 1960 SC 1340 ), Budhsen and another v. State of U.P. ( AIR 1970 SC 1321 ) and Rameshwar Singh v. State of Jammu and Kashmir ( AIR 1972 SC 102 )” (Emphasis Supplied) 20. So under such facts and circumstances of the case, this Court is of the considered opinion that the evidence in record is sufficient to establish the charge for the offence punishable under Section 395 of the Indian Penal Code against the appellant-accused person beyond reasonable doubt. 21. Accordingly, the impugned Judgment of conviction dated 21.12.2005 and Order of sentence dated 22.12.2005 passed by the learned Additional Sessions Judge, Fast Track Court -VI, Hazaribagh, in Sessions Trial No. 77 of 2004 is confirmed. The conviction of the appellant-accused person namely Murli Yadav for the offence punishable under Section 395 of the Indian Penal Code is confirmed. So far as the sentence is concerned, perusal of the record reveals that the appellant-accused person has spent nearly three years in custody. Keeping in view that no stolen articles have been recovered during the investigation of the case and the appellant-accused person is undergoing rigors of the criminal proceeding for a considerable period of time since the year 2003. This Court is of the considered view that the substantive sentence be reduced to the period he has already undergone but the fine amount by enhanced from Rs. 2000/- to Rs.50,000/-. Considering the amount of loss sustained by the informant’s family by the dacoity, it will be proper to order that if the fine amount is deposited, the same be paid to the informant or in case, he is not available, the same be paid to his legal representatives. 2000/- to Rs.50,000/-. Considering the amount of loss sustained by the informant’s family by the dacoity, it will be proper to order that if the fine amount is deposited, the same be paid to the informant or in case, he is not available, the same be paid to his legal representatives. Accordingly, the sentence of the appellant-accused person is modified from R.I. of seven years to the period he has already undergone in custody and the fine amount is enhanced to Rs.50,000/- in case of failing in deposit of the fine amount, the appellant is directed to undergo S.I. for one year. 22. In case, the appellant deposits the fine amount, the same be paid to the informant or in case if he is not available, the same be paid to his legal representatives. 23. The appeal is disposed of with the modification of the sentence of the appellant as to the extent indicated above. 24. Let a copy of this Judgment be sent to the learned court below forthwith.