JUDGMENT Kailash Prasad Deo, J . - Heard learned counsel for the appellants Mr. Dilip Kumar Prasad, assisted by Mr. A.K. Pathak, Advocate and learned counsel for the State, Mr. Suraj Verma, learned Additional Public Prosecutor. 2. Both the criminal appeals are directed against a common judgment of conviction, dated 05.03.2005 and order of sentence, dated 09.03.2005, passed by learned Additional Judicial Commissioner, Fast Track Court No.-VII, Ranchi, in Sessions Trial No. 100 of 2001, whereby both the appellants have been convicted for the offence committed and punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for seven years with a fine of Rs. 1000/- each and in case of default in payment of fine, to undergo further rigorous imprisonment for three months. 3. The prosecution case is based upon the fardbayen of Sujata Kachhap (P.W.-4), recorded by Sub-inspector, P.N. Tiwari, Officer-In-Charge of Sadar police station on 28.08.1998 at 03:00 A.M. in mohalla Khoraha Toli. The informant has alleged that today in the night i.e. on 27/28.08.1998 at about 09:00 P.M. she alongwith her Bhagina, Kartik Minz aged about 14 years and Bhagni, Shrdhanjli Minz aged about 12 years were taking meals in the kitchen, her children were sleeping in the room and her husband has not returned from his work. In the meantime, the informant has heard barking of dogs, upon which she asked her Bhagni, Shrdhanjli Minz to see why the dogs are barking. Shrdhanjli Minz told her that there was nothing. In the meantime, four dacoits entered into the kitchen of informant and disclosed that they are extremists, do not raise any brawl. She was caught hold by the extremists and was brought in her kitchen. Thereafter they have demanded Rs. 50,000/- in cash from the informant and threatened to kill her in case of non-payment of the said amount. Informant has further alleged that out of fear, she has handed over the key of locker and after opening the same, the accused have taken Rs. 7000/- in cash and also some jewelleries i.e. one golden ring, two silver ring, three pairs of silver anklet, two silver chain and one bicchiya of silver. Thereafter they took the informant to another room and taken away two steel box. 7000/- in cash and also some jewelleries i.e. one golden ring, two silver ring, three pairs of silver anklet, two silver chain and one bicchiya of silver. Thereafter they took the informant to another room and taken away two steel box. The informant has disclosed about descriptions of dacoits as one of dacoits was aged about 45 years, wearing khakhi pant and khakhi shirt with monkey cap on his head. He was in intoxicated condition and seems to be leader. Second dacoit was tall and fair, aged about 30 years, bend towards front. Third dacoit was wearing yellow shirt and lungi, aged about 38-40 years and four dacoits were inside the house and two dacoits were outside. Rest of the dacoits were in age group between 25-30 years. The informant has claimed that she could identify the accused persons as she has seen them in the light of electrical bulb and also claimed to identify the looted articles. After committing dacoity, they fled away. In the meantime, husband of informant came there and with the help of other persons, they chased the dacoits who have succeeded in fleeing away. One of the dacoits was having double barrel gun and one of them having double barrel pistol. 4. On the basis of fardbeyan police has registered Sadar P.S. case no. 89 of 1998 dated 28.08.1998, under Section 395 of the Indian Penal Code against six unknown persons. During investigation one Baraku Oraon @ Alous Kujur and Lalbir Mahto were apprehended and have confessed their guilt. 5. After completion of investigation, the police has submitted charge sheet vide charge sheet no.22 of 1999, dated 30.04.1999, under Sections 395/412/109 of the Indian Penal Code against these two accused/appellants namely, Subhash Singh @ Bhoma and Kandru Singh Ganjhu showing them absconder. 6. The cognizance of the offence has been taken vide order dated 03.06.1999 and the case has been committed to the court of sessions vide order dated 14.02.2001. 7. The charge has been framed against these two accused/appellants under Sections 395 and 412 of the Indian Penal Code, in S.T. No.100 of 2001, on 07.06.2001, to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 8. The prosecution, to prove its case, has examined altogether five witnesses and also adduced documentary evidence. 7. The charge has been framed against these two accused/appellants under Sections 395 and 412 of the Indian Penal Code, in S.T. No.100 of 2001, on 07.06.2001, to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 8. The prosecution, to prove its case, has examined altogether five witnesses and also adduced documentary evidence. Deepak Kumar Mahto, has been examined as P.W.-1, Dinesh Prasad Gupta, has been examined as P.W.-2, Anand Kachhap, has been examined as P.W.-3, Sujata Kachhap, informant of the case, has been examined as P.W.-4 and Prithvi Nath Tiwari, investigating officer of the case, has been examined as P.W.-5. The prosecution has also brought all the exhibits of Sessions Trial No.226 of 1999 from the court of learned 6th Additional Judicial Commissioner, Ranchi, on record, in which Baraku Oraon @ Alous Kujur and Lalbir Mahto, have faced trial and after trial the learned trial court has convicted Baraku Oraon @ Alous Kujur for the offence committed and punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for five years but he has not preferred any appeal against the judgment of conviction and order of sentence. But by the same judgment learned trial court has acquitted the accused, Lalbir Mahto from all the charges i.e. under Sections 395, 109 and 412 of the Indian Penal Code framed against him. 9. After closure of the prosecution evidence, the statement of appellants have been recorded under section 313 Cr.P.C., 1973 on 20.12.2004, to which the appellants have denied the evidence levelled against them and stated that they were innocent and have been falsely implicated in this case. Defence has examined Bijay Kumar Sahu as D.W.-1 and Padmohan Singh as D.W.-2 but no documentary evidence has been adduced on behalf of the defence. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has convicted the appellants under Section 395 of the Indian Penal Code but acquitted the appellants from the charge under Section 412 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Mr. Dilip Kumar Prasad, assisted by Mr. A.K. Pathak, Advocate. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Mr. Dilip Kumar Prasad, assisted by Mr. A.K. Pathak, Advocate. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law and there is no legal materials against these two appellants. Learned counsel for the appellants has submitted, that these two appellants have not been named in the First Information Report and their names transpired from the confessional statement of co-accused, Baraku Oraon @ Alous Kujur, during investigation but these two appellants, were not apprehended, as such they were not put on test identification parade. Learned trial court has acquitted them from the charge under Section 412 of the Indian Penal Code and no appeal has been preferred on behalf of the State. Learned counsel for the appellants has further submitted, that any confession made by accused is only admissible against that accused and not against other persons. Learned counsel for the appellants has further submitted, that there is no evidence against the appellants and only on the basis of identification made by informant during trial in the dock, on 22.09.2003, for the occurrence committed on 27/28.08.1998, learned trial court has convicted the appellants without taking judicial notice of the judgment reported in 2002 (4) Crimes 307 (SC) in the case of Dana Yadav @ Dahu & Ors. vs. State of Bihar, where the Hon''ble Supreme Court has observed that identification in the Court without any test identification parade is a bad piece of evidence as cited in paragraph 38 :- (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. Learned counsel for the appellants has thus submitted, that in the present case there is no material against the appellants warranting conviction as there is no corroborative materials, as such the impugned judgment of conviction and order of sentence is bad in law. 12. Heard, Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that these appellants were absconder during investigation, as such they have not been put on test identification parade and informant, Sujata Kachhap (P.W.-4) has rightly identified them in the dock without specifying the role played by them. Learned counsel for the State has further submitted, that Baraku Oraon @ Alous Kujur has been convicted in separate trial vide S.T. No. 226 of 1999 and as per the report called for from the Jail Superintendent, Baraku Oraon @ Alous Kujur has not preferred any appeal rather he was released after serving out the sentence passed by learned trial court in Session Trial No.226 of 1999 and as such, impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court at this stage. 13. Heard, learned counsel for the appellants, Mr. Dilip Kumar Prasad, assisted by Mr. A.K. Pathak, Advocate and learned counsel for the State, Mr. 13. Heard, learned counsel for the appellants, Mr. Dilip Kumar Prasad, assisted by Mr. A.K. Pathak, Advocate and learned counsel for the State, Mr. Suraj Verma, learned Additional Public Prosecutor and perused the record i.e. First Informant Report, framing of charge, evidence of five prosecution witnesses, the exhibits brought on record by prosecution without objection from the Sessions Trial No.226 of 1999, the statement of the appellants recorded under Section 313 Cr.P.C., 1973 and two defence witnesses as well as impugned judgment of conviction and order of sentence. This court has scrutinized the evidence brought on record. From perusal of the same, it appears that except informant, Sujata Kachhap (P.W.-4) none of the prosecution witnesses are eye witness to the occurrence. Though these appellants, have not been arrested during investigation rather charge sheet was filed against them, showing them as absconder and their names have transpired in the confessional statement of co-accused, Baraku Oraon @ Alous Kujur during investigation before the police, as such they were not put on test identification parade but during trial they have been identified by the informant, Sujata Kachhap (P.W.-4). This Court has scrutinized the evidence of P.W.-4. From bare reading of evidence of P.W.-4 at paragraph 18 it appears that she knew these appellants but has not disclosed their names in the First Information Report nor it has been alleged in the First Information Report by the informant that she has seen the accused persons prior to the occurrence. This Court has taken Judicial notice of paragraph 19 of the impugned judgment at page 9, where the learned trial court has categorically observed that no doubt the confessional statement recorded by the police, during the course of investigation has no evidentially value but even then without having any circumstantial evidence, the learned trial court has convicted the appellants. From perusal of the evidence of the prosecution witnesses, it appears that there is no legal material against these two appellants except the confessional statement of the co-accused, Baraku Oraon @ Alous Kujur recorded during investigation of Sessions Trial No. 226 of 1999 and the identification made by the informant, Sujata Kachhap (P.W.-4), during trial, after a period of approximately 6 years as the occurrence has taken place on 27/28.08.1998 and the deposition was record on 22.09.2003. This Court has taken Judicial notice of the judgment relied by the learned counsel for the appellants in the case of 2002(4) Crimes 307 (SC) in the case of Dana Yadav @ Dahu & Ors. vs. State of Bihar (supra). The Hon''ble Apex Court has held that on such weak piece of evidence, conviction can only be passed upon the cogent circumstantial evidence. This Court has minutely scrutinized the evidence. There is no cogent and circumstantial evidence brought on record by the prosecution, except the confessional statement of Baraku Oraon @ Alous Kujur before the police during investigation and this fact has been admitted by the investigating officer, Prithwi Nath Tiwari, who has been examined as P.W.-5, at paragraphs 9 and 10 of his cross-examination, which completely belies the prosecution material against these two appellants, as the investigating officer has categorically stated that he cannot say in whose presence Baraku Oraon @ Alous Kujur has confessed his guilt nor has recorded the name of the witness. This witness has also admitted that in the case diary he has not mentioned that Baraku Oraon @ Alous Kujur has given confessional statement voluntarily and further at paragraph 10 of his cross-examination, this witness has admitted that on the basis of confessional statement of Baraku Oraon @ Alous Kujur, he has submitted charge sheet against Subhash Singh @ Bhoma and Kandru Singh Ganjhu. 14. Under the aforesaid circumstances, this Court is of the opinion that prosecution has failed to prove the charge against the appellants. The learned trial court has acquitted the appellants of the charge under Section 412 of the Indian Penal Code and there are no other materials for convicting the appellants under Section 395 of the Indian Penal Code. 15. In the result, the impugned judgment of conviction, dated 05.03.2005 and order of sentence, dated 09.03.2005, passed by learned Additional Judicial Commissioner, Fast Track Court No.-VII, Ranchi, in Sessions Trial No. 100 of 2001 is hereby set aside by extending benefit of doubt in favour of appellants. 16. Accordingly, the present Criminal Appeals stand allowed. 17. The appellants, who are on bail, are discharged from liability of their bail bonds. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.