JUDGMENT : 1. Heard, Mr. D. C. Mishra, learned counsel for the appellant and learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 19.02.2004, passed by the learned 3rd Additional Sessions Judge, Dumka, in S.C. No.210 of 2000, arising out of Masalia P.S. Case No.28 of 1998 corresponding to G.R. No.209 of 1998, whereby the appellant and another accused, Jaidhan Dhekaro has been held guilty for the offence committed and punishable under Sections 395 and 412 I.P.C. and awarded rigorous imprisonment for five years for the offence committed and punishable under Section 395 I.P.C. and fine of Rs.1,000/-and in case of default in payment of fine, to further undergo simple imprisonment for two months and rigorous imprisonment for five years for the offence committed and punishable under Section 412 I.P.C. with a fine of Rs.1000/-and in case of default in payment of fine, to further undergo S.I. for two months Both the sentences are directed to run concurrently. 3. The prosecution case, is based upon, the fardbeyan of the informant, Ashok Kumar (P.W.4) recorded by A.S.I., J. Manjhi, Masalia Police Station at Masalia Hospital on 02.05.1998 at 14.30 hrs., wherein the informant has alleged that on 02.05.1998 at 9.00 A.M., he along with his staff, Dhananjay Choudhary (P.W.3) were returning by Motorcycle after withdrawing Rs.2 Lacs from the Allahabad Bank, Main Branch, Dumka and coming to their Branch at Dhasania. When the informant reached near Muhalbana, some unknown persons started assaulting the informant by means of lathi on his head, hand and leg and two persons were standing at some distance. The informant anyhow fled away towards the village from where he was brought to Masalia Hospital. It is further alleged that Dhananjay Choudhary (P.W.3) was also assaulted by two persons and after breaking the 'Dikki' of the Motorcycle, the accused persons have taken the bag containing Rs.2 Lacs, withdrawn by the informant from the Allahabad Bank, Dumka. 4. On the basis of the aforesaid 'fardbeyan' of the informant, the Police has instituted First Information Report bearing Masalia P.S. Case No.28 of 1998, dated 02.05.1998, corresponding to G.R. No.209 of 1998 under Section 394 of the Indian Penal Code against unknown persons. 5. 4. On the basis of the aforesaid 'fardbeyan' of the informant, the Police has instituted First Information Report bearing Masalia P.S. Case No.28 of 1998, dated 02.05.1998, corresponding to G.R. No.209 of 1998 under Section 394 of the Indian Penal Code against unknown persons. 5. After completion of the investigation, the Police has initially submitted first charge-sheet vide Charge-sheet No.35 of 1998 dated 14.08.1998, against Jaidhan Dhekaro and subsequently the Police has submitted another charge-sheet vide No.43 of 1998 against accused, Samsuddin Ansari as accused in custody and Bhagwat Dhekaro, Parwat Dhekaro, Hiyat Miyan, and Vishnu Dhekaro (appellant), as absconders. The 3rd charge-sheet was submitted by the Police vide No.30 of 1999 dated 26.07.1999 showing accused, Vishnu Dhekaro and Bhagwat Dhekaro in custody and Parwat Dhekaro and Hayat Miyan as absconders. 6. The cognizance of the offence has been taken against accused/appellant vide order dated 10.10.1998 and the case has been committed to the Court of Sessions vide order dated 30.08.2000. 7. The first charge has been framed by the learned trial court on 5th February, 2001 against Jaidhan Dhekaro, Bhagwat Dhekaro, Vishnu Dhekaro, Samsuddin Ansari and Hiyat Mian under Sections 395 and 120B I.P.C. Subsequently Vishnu Dhekaro, against whom charge has also been framed under Section 412 I.P.C. vide order dated 5th February, 2001, his name has been deleted by inserting the name of Jaidhan Dhekaro vide order dated 10.02.2004. Parwat Dhekaro has been charged under Sections 395 and 120B I.P.C. vide order dated 16.01.2002, to which the accused persons including the appellant have denied their involvement and claimed themselves to be innocent and thus, they were put under trial. 8. The prosecution has examined altogether thirteen prosecution witnesses and also exhibited a number of documentary evidence as exhibits in order to prove its case. Santosh Soren, has been examined as P.W.1, is a seizure witness, and his signature on the seizure-list of blood-stained wood and blood stained soil has been proved and marked as Exhibit-1, Anand Soren has been examined as P.W.2, is another seizure witness whose signature on seizure list has been proved and marked as Exhibit-2, Dhananjay Choudhary, one of the victims and injured has been examined as P.W.3 and has identified three persons in the Test Identification Parade, namely, Jaidhan Dhekaro, Bhagwat Dhekaro and Vishnu Dhekaro (appellant). Ashok Kumar, informant of the case, has been examined as P.W.4 and has only identified Jaidhan Dhekaro in the Test Identification Parade, Ramlal Rana, a villager of Muhalbana Village has been examined as P.W.5 and has proved his signature on the seizure list which has been proved and marked as Exhibit-2/a, Muni Lal Rana has been examined as P.W.6 and has been declared hostile by the prosecution and his signature on the seizure list has been proved and marked as Exhibit-1/a, Sudhir Rana has been examined as P.W.7 and has proved his signature and signature of Sripati Rana on the seizure list which has been marked as Exhibit-5 and Exhibit-5/a respectively, Bisheshwar Tudu has been examined as P.W.8 and has proved his signature on the seizure-list which has been marked as Exhibit-2/b and his signature on the seizure list of the Motorcycle has been proved and marked as Exhibit-3/a, Junakhi Manjhi, A.S.I. and investigating officer of the case has been examined as P.W.9 and he has proved the fardbeyan as Exhibit-6, the Formal First Information Report as Exhibit-7 and seizure-list of blood-stained soil and lathi as Exhibit-8, Basant Kumar Mallik has been examined as P.W.10 and has proved the hand-writing and signature of A.S.I., Sanjay Kumar on two injury reports, hand-writing and signature of Mahendra Prasad Singh, Block Development officer on Test Identification Parade, and hand-writing and signature of Sri R. B. Prasad, Judicial Magistrate and Sri A. K. Jha, Judicial Magistrate which have been marked as Exhibits-9, 9/1, 10, 11 and 12. Nil Dhekaro has been examined as P.W.11, Dhenapadho Dhekaro has been examined as P.W.12 and Budha Dhekaro has been examined as P.W.13, but have been declared hostile by the prosecution. Nil Dhekaro has been examined as P.W.11, Dhenapadho Dhekaro has been examined as P.W.12 and Budha Dhekaro has been examined as P.W.13, but have been declared hostile by the prosecution. Signature of Santosh Soren (P.W.1) on the seizure list has been proved and marked as Exhibit-1, signature of Muni Lal Rana (P.W.5) on the seizure-list has been proved and marked as Exhibit-1/a, signature of Anand Soren (P.W.2) on the seizure list has been proved and marked as Exhibit-2, signature of Ram Lal Rana (P.W.5) on the seizure-list has been proved and marked as Exhibit-2/a, signature of witness, Bisheshwar Tudu (P.W.8) on the seizure-list has been proved and marked as Exhibit-2/b, signature of Anand Soren (P.W.2) on another seizure list has been proved and marked as Exhibit-3, signature of witness, Bisheshwar Tudu (P.W.8) on the seizure-list of Motorcycle has been proved and marked as Exhibit-3/a, signature of the informant on the written report has been proved and marked as Exhibit-4, signature of Dhananjay Choudhary (P.W.3) on the written report has been proved and marked as Exhibit-4/a, signatures of Sudhir Rana (P.W.7) and Sripati Rana on the seizure-list have been proved and marked as Exhibits – 5 to 5/1,, fardbeyan has been proved and marked as Exhibit-6, Formal First Information Report has been proved and marked as Exhibit-7, seizure-list of sal lathi has been proved and marked as Exhibit-8, seizure-list of broken motorcycle bearing Registration No.BPU 1348 has been proved and marked as Exhibit-8/1, seizure-list of check-book etc., has been proved and marked as Exhibit-8/2, seizure-list of Motorcycle papers bearing Registration No.BPU 1348 has been proved and marked as Exhibit-8/3, seizure-list of cash seized from accused, Jaidhan Dhekaro has been proved and marked as Exhibit-8/4, seizure-list of cash from accused, Vishnu Dhekharo has been proved and marked as Exhibit-8/5, injury reports of Ashok Kumar and Dhananjay Choudhary have been proved and marked as Exhibits-9 and 9/1, T.I.P. Chart of materials has been proved and marked as Exhibit-10, T.I.P. Chart of suspect and another T.I.P. Chart of suspect have been proved and marked as Exhibit-11 and Exhibit-12, signature of witness on the seizure-list of Rs.19,000/-has been proved and marked as Exhibit-13, signature of witness on the seizure-list of Rs.1700/-has been proved and marked as Exhibit-14. 9. 9. After closure of the prosecution evidence, statement of the accused / appellant has been recorded under Section 313 Cr.P.C., on 22.12.2003 wherein he has denied his involvement and claimed himself to be innocent. The defence has not examined any witness or exhibited any document. 10. The learned trial court, after hearing learned counsel for the parties and on the basis of the materials brought on record, has convicted two persons, namely, Jaidhan Dhekaro and Vishnu Dhekaro (present appellant) and by the same impugned judgment, has acquitted Samsuddin Ansari, Hiyat Miyan and Parwat Dekharo. Accused, Jaidhan Dhekaro has not preferred any Criminal Appeal as after serving sentence has been released by the jail authority, as such, the present criminal appeal has been preferred by the sole appellant, Vishnu Dhekharo. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellant has preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 11. Heard, Mr. Durga Charan Mishra, learned counsel appearing on behalf of the appellant. 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. Learned counsel for the appellant has submitted that name of the appellant, Vishnu Dhekaro has neither figured in the First Information Report nor he has been identified by the informant (P.W.4), Ashok Kumar in the Test Identification Parade. Learned counsel for the appellant has submitted that witness, Dhananjay Choudhary (P.W.3) has claimed that he has identified three accused persons in the Test Identification Parade, namely, Jaidhan Dhekaro, Bhagwat Dhekaro and Vishnu Dhekaro (appellant), but in his cross-examination in Para-13, this witness has admitted that all these persons were shown to him by the Police soon after their arrest at the Police Station. Learned counsel for the appellant has further submitted that sanctity of the Test Identification Parade has lost its value as this witness had occasion to see the accused prior to the Test Identification Parade. Learned counsel for the appellant has submitted that Jaidhan Dhekaro was identified by the informant (P.W.3) of the case, but no such identification has been made by any of the witnesses so far as the present appellant is concerned, except P.W.3, Dhananjay Choudhary, whose identification in T.I.P. has no legal sanctity. Learned counsel for the appellant has submitted that Jaidhan Dhekaro was identified by the informant (P.W.3) of the case, but no such identification has been made by any of the witnesses so far as the present appellant is concerned, except P.W.3, Dhananjay Choudhary, whose identification in T.I.P. has no legal sanctity. Learned counsel for the appellant has further submitted that it is alleged that Rs.1700/-having wrapper of Allahabad Bank has been recovered from the house of the appellant, Vishnu Dhekaro, but the prosecution has miserably failed to prove that Rs.1700/-belongs to same incident of dacoity and as such, conviction of the appellant under Sections 395 and 412 I.P.C. Learned counsel for the appellant has vehemently submitted that the case of co-accused, Jaidhan Dhekaro and the appellant, Vishnu Dhekaro is not identical, as such, conviction of the appellant is not sustainable in the eyes of law. 12. Heard learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record. Learned counsel for the State has further submitted that the First Information Report has been lodged against unknown criminal persons, but during investigation, the Police has arrested one Jaidhan Dhekaro, who has confessed his guilt and on the basis of his statement, the names of other accused persons have got figured and as such, the Police has filed charge-sheet in three sheets. Learned counsel for the State has further submitted that on the basis of the disclosure made by co-accused, Jaidhan Dhekaro, the Police has recovered Rs.19,000/-from the house of Jaidhan Dhekaro and Rs.1700/-having wrapper of Allahabad Bank, from the house of the appellant and as such, the learned trial court has rightly convicted the accused, Jaydhan Dhekaro and Vishnu Dhekaro (appellant) and acquitted other three co-accused, Samsuddin Ansari, Hiyat Mian and Parwat Dhekharo from the charge framed against them. Learned counsel for the State has submitted that it is a case of road dacoity near Masalia and the informant (P.W.4), being a Branch Manager, while he was returning with his staff, Dhananjay Choudhary, who has also sustained injury caused by the criminals though injury reports have not been brought on record and the charge has been framed only under Section 395 I.P.C. and as such, the learned trial court has rightly convicted the appellant under Sections 395 and 412 I.P.C. Learned counsel for the State has further submitted that co-convict, Jaydhan Dhekaro has not preferred any Criminal appeal before this Hon’ble Court, rather he has served out sentence awarded by the learned trial Court. This shows that the investigation has been done in right manner resulted into conviction of two accused persons. Learned counsel for the State relying upon the aforesaid submissions, has submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon’ble Court 13. Heard, Mr. D. C. Mishra, learned counsel appearing for the appellant and learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor and perused the materials available on record, including the First Information Report, framing of the charge, the evidence of all the thirteen prosecution witnesses, fourteen prosecution exhibits, and statement of accused under Section 313 Cr.P.C, as well as impugned judgment of conviction and order of sentence. This Court has to consider the legal materials available, against the appellant (Vishnu Dhekaro) i.e. identification made by Dhananjay Chaudhary (P.W.3) in Test Identification Parade, confession of co-accused, Jaydhan Dhekaro, and recovery of Rs.1700/-in the wrapper of the Allahabad Bank from the house of the appellant, Vishnu Dhekaro. Evidence of other prosecution witnesses are not relevant, so far adjudication of the present case against the appellant, Vishnu Dhekaro is concerned, as those are seizure witnesses. From perusal of the evidence of Dhananjay Chaudhary (P.W.3) particularly in Para-13 where the witness has categorically stated that soon after arrest of the accused persons, they were shown to him in the Police Station by the Police, meaning thereby, the legal sanctity of T.I.P. remains meaningless. Apart from this, these witnesses have not claimed in the Court that the accused persons present in the dock are the persons who have committed dacoity and confession of co-accused before the Police has no legal evidence, so far present appellant is concerned. Apart from this, these witnesses have not claimed in the Court that the accused persons present in the dock are the persons who have committed dacoity and confession of co-accused before the Police has no legal evidence, so far present appellant is concerned. 14. Under the aforesaid circumstances, this Court is of the opinion that conviction of the appellant under Section 395 I.P.C. solely on the basis of the Test Identification Parade cannot sustain in the eyes of law. So far as conviction of the appellant under Section 412 I.P.C. is concerned, the same is also not sustainable in the eyes of law, as the money withdrawn from the Allahabad Bank, may be having wrapper of the same Bank, but that does not mean that the money which has been recovered from the house of the appellant, is the looted article of the present case. The prosecution has miserably failed to prove its case beyond all reasonable doubt. 15. Under the aforesaid circumstances, the appellant deserves to be acquitted by extending benefit of doubt, as such, the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. 16. Accordingly, the Judgment of conviction and order of sentence, both dated 19.02.2004, passed by the learned 3rd Additional Sessions Judge, Dumka, in S.C. No.210 of 2000, is hereby set aside. 17. The appellant, who is on bail, is discharged from the liability of the bail bonds. 18. Accordingly, the instant Criminal Appeal stands allowed. 19. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.