JUDGMENT : Heard the parties. 2. The appellant has filed this appeal being aggrieved by the Judgment of conviction dated 30.01.2006 and Order of Sentence dated 31.01.2006 passed by learned Additional Sessions Judge-I, Sahibganj in Sessions Case No.55 of 1993 whereby and where under the learned court below held the appellant-accused person guilty of having committed offence punishable under Section 395 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and fine with default clause. 3. The case of the prosecution as unfolded in the fardbeyan of the informant in brief is that the informant was travelling in 405 Up Katuwa Passenger train in the second class general compartment in the intervening night of 2/3 December, 1990. Some dacoits entered inside the bogie from Sahebganj Railway Station. After the train crossed the outer signal of Sahebganj railway station, the dacoits, altogether five in number, armed with bombs and knives looted the passengers of the train and also exploded bombs causing injury to several persons. The Railway Protection Force personnel, who were also travelling in the same bogie, fired at the dacoits. The informant gave description about the age and physique of the dacoits. By the time the train slowed down on reaching Karamtoli Railway Station, the dacoits got down from train. The informant claimed to identify the dacoits as there was light in the bogie of the train. 4. On the basis of the fardbeyan of the informant, police registered Sahibganj G.R.P.S. Case No.39 of 1990 and took up investigation of the case. After completion of the investigation, police submitted police report. Upon commitment of the case to the Court of Session, charge for the offence punishable under Section 395 of the Indian Penal Code was framed against the appellant-accused person. 5. Upon the appellant-accused person pleading not guilty to the charge and claiming to be tried, he was put to trial. In support of its case, the prosecution altogether examined nine witnesses. 6. Out of the witnesses examined by the prosecution, P.W.1- Dhanupati Mandal is the informant of the case, P.W.2-Dilip Mandal, P.W.3- Gaur Mandal, P.W.5-Sunil Mandal, P.W.7-Kamli Devi and P.W.8- Kado Devi were the passengers of the train. They have stated about the occurrence of dacoity in the train but none of them could identify the appellant-accused person in the court or in T.I. Parade. 7. They have stated about the occurrence of dacoity in the train but none of them could identify the appellant-accused person in the court or in T.I. Parade. 7. P.W.4- Indradeo Gope is the investigating officer of the case. P.W.9- Kishor Kumar is as formal witness being an advocate’s clerk. 8. P.W.6- Rajendra Singh has stated that the occurrence took place on 02.12.1990. There was a sound of explosion of bomb in 405 Up Katuwa Train at 1:00 am near Sahibganj outer signal. He went there to see. A bomb was thrown at him. He was injured but he fired. There was incident of looting in that train in that night. 4-5 miscreants were there. He identified the person who exploded the bomb. He was in T-Shirt. On 04.01.1991, the P.W.6 identified the miscreants in the T.I. Parade. The name of accused was some Mandal. The accused person was represented by his advocate on the date of examination of P.W.6 in court. In his cross-examination, P.W.6 has stated that along with him, another constable was on duty. Both the constables were in the same bogie. Information was given at Mirzachowki Police Station. He fired from his rifle. The rifle was not seized. 9. P.W.1- Dhanupati Mandal is the informant of the case, P.W.2-Dilip Mandal, P.W.3- Gaur Mandal, P.W.5-Sunil Mandal, P.W.7-Kamli Devi and P.W.8- Kado Devi all have stated that they were travelling in the 405 Up Katuwa Train. After the train started from Sahibganj Station and it crossed the outer signal of Sahibganj Station, the dacoits looted the articles from the passengers. The train next stopped at Karamtoli Station. The dacoits caused injury to the passengers by exploding bombs. In his cross-examination, the P.W.1- Dhanupati Mandal who is the informant of the case, has stated that there was no light in the bogie in which dacoity took place. He could not identify the dacoits in the T.I. Parade also. 10. The P.W.2-Dilip Mandal has stated that he sustained injury on his hand and chest. There was no light in the bogie. The dacoits fled away at Mirzachowk. He could not identify the appellant-accused person. He also could not identify the appellant-accused in the T.I. Parade. 11. P.W.3- Gaur Mandal has stated that the occurrence took place between 11:00 pm to 12:00 midnight. His statement was recorded by police at Bhagalpur. There was no light in the bogie. The dacoits fled away at Mirzachowk. He could not identify the appellant-accused person. He also could not identify the appellant-accused in the T.I. Parade. 11. P.W.3- Gaur Mandal has stated that the occurrence took place between 11:00 pm to 12:00 midnight. His statement was recorded by police at Bhagalpur. In his cross-examination he has stated that no constable was present in the bogie nor anybody fired any bullet. He could not identify any of the persons in the T.I. Parade. 12. P.W.5- Sunil Mandal has stated that only one dacoit came near him and he took away Rs.150 from his pocket. There was light in the bogie. 13. P.W.7- Kamli Devi has stated about the dacoits looting Rs.1,700/- from her and Rs.2,000/- from her mother. The right hand of her mother was severed because of the bomb explosion. The dacoits stabbed on the hand of the P.W.7 with a knife. 14. P.W.8- Kado Devi is the mother of the P.W.7. She also stated that the occurrence took place between 10/11 pm. She has corroborated the testimony of the P.W.7. 15. P.W.4- Indradeo Gope is the investigating officer of the case. He has proved the formal F.I.R. which has been marked Ext. 1 and the fardbeyan of the informant which has been marked Ext. 2. He further deposed that the place of occurrence is the second class compartment bearing No.822 of 405 Up Aajimganj-Bhagalpur Passenger Train. He recorded the statement of the witnesses and also got conducted the test identification parade and submitted the charge-sheet against the appellant-accused person. In his cross-examination, he denied the suggestion that the appellant- accused person was got identified to P.W.6- Rajendra Singh before the T.I. Parade. 16. P.W.9- Kishor Kumar is an advocate’s clerk. He has proved the T.I. Parade Chart which has been marked Ext. 3. In his cross-examination, he has stated that the chart was not prepared in his presence. 17. 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 wherein he denied the allegations made against him and pleaded innocence. 18. Learned court below after taking into consideration the evidence in the record convicted and sentenced the appellant-accused person as already indicated above. 19. Mr. 18. Learned court below after taking into consideration the evidence in the record convicted and sentenced the appellant-accused person as already indicated above. 19. Mr. Peeyush Krishna Choudhary, learned counsel for the appellant submits that the learned court below failed to properly appreciate the evidence in record. It is further submitted by Mr. Choudhary that none of the prosecution witnesses has identified the appellant-accused person in the court and the identification in the T.I. Parade is not a substantive piece of evidence. It is submitted that the learned court below ought to have acquitted the appellant-accused person, in the absence of any substantive evidence in the record of his identification to implicate him in the case. It is further submitted that the learned court below erred by not considering that the presence of P.W.6- Rajendra Singh at the place of occurrence is highly doubtful as P.W3 has stated that no police personnel were in the bogie nor any firing was made. It is also submitted that there is no injury report in the record to suggest that any of the prosecution witness including the P.W.6, sustained any injury as claimed by them and there is no evidence in the record to suggest that any arms or any explosive substance was used in commission of the alleged dacoity as there is no evidence in the record that either any weapon or any explosive was seized in connection with the case. It is next submitted that nothing has been recovered from the possession of the appellant-accused to implicate him in the case and in view of this weak evidence in the record, the appellant-accused person be acquitted, at least by giving him the benefit of doubt. Hence, it is submitted that the impugned judgment of conviction and order of sentence being not sustainable in law, be set aside. 20. Mr. Manoj Kumar, the learned Addl. Hence, it is submitted that the impugned judgment of conviction and order of sentence being not sustainable in law, be set aside. 20. Mr. Manoj Kumar, the learned Addl. P.P. on the other hand defended the judgment of conviction and order of sentence and submitted that there is ample evidence in the record to suggest that there was a dacoity in the intervening night of 2/3 December, 1990 in the 405 Up Passenger Train and all the material witnesses of the case being P.W.1- Dhanupati Mandal is the informant of the case, P.W.2-Dilip Mandal, P.W.3- Gaur Mandal, P.W.5-Sunil Mandal, P.W.7-Kamli Devi and P.W.8- Kado Devi have categorically deposed about this and nothing has been elicited in their cross-examination to controvert the occurrence of dacoity in the said train and P.W.6- Rajendra Singh has identified the appellant-accused person. Hence, it is submitted that the evidence in the 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 any reasonable doubt and the sentence is also proper. 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. 21. Having heard the submissions made at the Bar and after carefully going through the evidence in record, it is pertinent to mention here that it is a settled principle of law that identification of an accused in T.I. Parade is a part of investigation and it is not substantive piece of evidence. The identification of the appellant-accused person in the court is a substantive piece of evidence. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence. The Hon’ble Supreme Court of India in the case of Iqbal and another versus State of Uttar Pradesh reported in (2015) 6 SCC 623 , has held in paragraphs 15 as under:- “15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence.” (Emphasis Supplied) 22. After going through the evidence in the record, this Court is of the considered view that there is no evidence in the record to suggest that any of the prosecution witnesses have identified the appellant-accused in the court. The P.W.6- Rajendra Singh, who according to the prosecution is the person who identified the appellant-accused, could not disclose the name of the appellant-accused. He has only deposed that the person who committed dacoity is some Mandal. It is pertinent to mention here that in the fardbeyan no name of any of the dacoits has been mentioned. The F.I.R. has been registered against the unknown persons. It is not forthcoming on which date the P.W.6 could come to know that the name of appellant-accused is Mandal. If P.W.6 knew the appellant-accused person before the occurrence, it remains unexplained why the name of the appellant-accused was not mentioned in the fardbeyan and what was the need of T.I. Parade. Though as per prosecution case several prosecution witnesses have sustained injuries but there is no evidence of any doctor in the record to suggest any injury having sustained by any of the witnesses including severe injury like severing of hand and injuries caused by the explosion of bomb. The P.W.3- Gaur Mandal in paragraph-4 of his cross-examination has stated that there was no police constable in the compartment where the occurrence of dacoity took place and no firing was made. This also creates a doubt about the presence of P.W.6 in the said bogie where the alleged occurrence took place. 23. Under such circumstances, this Court is of the considered opinion that in view of the facts and law discussed above, this is a fit case where the appellant-accused be acquitted by giving him the benefit of doubt as the evidence in the record is insufficient to establish the charge for the offence punishable under Section 395 of the Indian Penal Code against him beyond reasonable doubt. Accordingly, the appellant-accused namely Chhatish Mandal is acquitted of the charge for the offence punishable under Section 395 of the Indian Penal Code and the Judgment of conviction dated 30.01.2006 and Order of Sentence dated 31.01.2006 passed by learned Additional Sessions Judge-I, Sahibganj in Sessions Case No.55 of 1993, being not sustainable in law, is set aside. 24. Perusal of the record reveals that the appellant namely Chhatish Mandal is in custody. In view of his acquittal, he is directed to be released from custody forthwith unless his detention is required in any other case. 25. In the result this appeal is allowed. 26. Let a copy of this judgment be sent to the learned court below forthwith.