JUDGMENT : At the outset it needs to refer that the appeal has been filed by Mr. Rajiv Lochan and Sanjay Kumar. The appellant has not been represented by them, even though their names have been displayed in the Display Board. This appeal is of the year 2009 and therefore, taking into consideration of the fact that the appeal is lying pending for about last 10 years, the Court deem fit and proper to appoint Mr. Anil Kumar Sinha, as Amicus Curiae to assist this Court. 2. The instant appeal is against the judgment and order of conviction dated 12.12.2008 passed in Sessions Case No.157/2001 arising out of Jamtara P.S. Case No.39/1989, G.R. Case No.89/1989 by Additional Sessions Judge-III (Fast Track Court), Jamtara, whereby and where under the appellant has been convicted to undergo seven years rigorous imprisonment for commission of offence under Section 395 of Indian Penal Code and fine of Rs.1000/- and in default of fine of Rs.1000/- shall undergo one month simple imprisonment. 3. The order of conviction and sentence pertains to institution of a criminal case by virtue of lodging an FIR against the unknown dacoits in the Jamtara police station under Section 395 of Indian Penal Code narrating the incident that on 26.02.1989, when the informant was seeing television program in his house with his family members, six miscreants entered in his room at about 21:10 p.m., they were covered their face and told the informant to kill him. They had demanded his wrist watch, which has been given by the informant to them. The miscreants taken away the articles from the house and one of the dacoit has also exploded bomb in his house and the compounder was injured. Upon hearing the sound of exploded bomb, armed police was reached there, all the miscreants started to flee away from there. When the informant came back to the house, then he has found that one V.I.P. brief-case, two golden rings, one silver challa, one couple silver payal, one silver chain and two golden Jitia had been missing. They have also disclosed that his family members can identify the miscreants because miscreants were seen in the light of electric at the time of alleged occurrence. On the basis of the said occurrence, an FIR has been instituted. They have also disclosed that his family members can identify the miscreants because miscreants were seen in the light of electric at the time of alleged occurrence. On the basis of the said occurrence, an FIR has been instituted. The prosecution has proceeded with the investigation, the charge-sheet has been submitted thereafter charge has been framed for commission of offence under Section 395 of Indian Penal Code. The accused, after pleading not guilty, has faced the trial, wherein, altogether six witnesses have been examined. The accused persons had been identified in the Test Identification Parade and therefore the trial Court, on the basis of the statement of P.W.-1, P.W.-2 and P.W.-3 said to have been eye witness and the identification in the Test Identification Parade, has convicted the appellant on the ground that sufficient material has come to prove charge against him by one Nasim Mian had been acquitted for want of evidence against him. 4. The conviction and sentence inflicted upon Ataul Mian has been assailed in the instant appeal. 5. Mr. Anil Kumar Sinha, Amicus Curiae, has taken the following grounds in assailing the aforesaid judgment:- (i) Although, three witnesses are being said to be an eye witness but the conviction is based upon the testimony of P.W.-2 who has identified the appellant in the Test Identification Parade and corroborated it in the Court but he submits by referring to the deposition of P.W.-2 as also the finding recorded by the trial Court at paragraph-14, wherein, P.W.-2 has said that she had seen one accused person and had identified the accused person but the accused present in the Court namely Nasim Mian was not present at the place of occurrence but another accused Ataul Mian who was represented through lawyer at the time of the evidence of this witness has identified him and therefore, the conviction is based upon the same. According to him, even if, P.W.-2 has identified the Ataul Mian in Test Identification Parade but from perusal of the deposition of P.W.-2, it cannot be said that the same has been corroborated by her because admittedly on the date, when she was deposing before the Court, Ataul Mian was not present in the Court rather he was represented by his counsel as has been allowed by the trial Court under the provision of 317 Cr.P.C. and therefore, merely on account of the fact that she has identified the Ataul Mian in Test Identification Parade, the same cannot be said to be corroborative piece of evidence to convict, unless it will be corroborated in course of the deposition and since, Ataul Mian was not present in the Court, therefore, it cannot be said that the identification made by her in Test Identification Parade has been corroborated; (ii) He, further submits that the trial Court although has recorded the same in the impugned judgment but without appreciating the fact that there is no cogent evidence due to absence of corroboration of identification of the appellant namely Ataul Mian by P.W.-2 in course of deposition has presumed that the second man must be Ataul Mian and on presumption, he has been convicted and therefore, the conviction based upon the presumption is not sustainable. He further submits that P.W.-1 and P.W.-3 who are also the eye witness but have not identified the appellant in the Test Identification Parade. However, in the deposition, she has stated that they had seen the accused person but unless there would be identification by the P.W.-1 or P.W.-3, the same cannot be said to be a cogent evidence to convict the appellant. He Submits that so far as deposition of other witnesses i.e., P.W.-4, P.W.-5 and P.W.-6, the same are said to be formal witnesses. He further submits that the informant who happens to be father of P.W.-1, P.W.-2 and P.W.-3 had died in course of trial and therefore, he had not been examined. He Submits that so far as deposition of other witnesses i.e., P.W.-4, P.W.-5 and P.W.-6, the same are said to be formal witnesses. He further submits that the informant who happens to be father of P.W.-1, P.W.-2 and P.W.-3 had died in course of trial and therefore, he had not been examined. On the basis of the aforesaid grounds, submission has been made that the trial Court ought to have taken into consideration these aspects of the matter before passing the order of conviction in order to see that the charge has been proved beyond all reasonable doubt but rather it will be said to be proving of charge on the basis of presumption and surmises, therefore the judgment of conviction is not sustainable in the eye of law. 6. Mr. Mukesh Kumar, learned A.P.P. while defending the impugned judgment has submitted that there is no infirmity in the impugned judgment for the reason that prosecution has been able to prove the charge levelled against the appellant which is corroborated from deposition of P.W.-1, P.W.-2 and P.W.-3. He submits that P.W.-2 has identified the accused person, however in Test Identification Parade, she has only identified Ataul Mian but the trial Court has taken into consideration the fact that two accused persons were there, at the time of incident, if the person present in the Court was Nasim Mian, who has said to be not present at the time of occurrence, therefore the second man would be Ataul Mian, hence the Court has taken into consideration her testimony for convicting Atual Mian and acquitting Nasim Mian, hence there is no infirmity rather it will be said that charges have been proved beyond all reasonable doubt. He further submits that testimony of P.W.-2 has been corroborated by P.W.-1 and P.W.-3 and therefore, discarding the testimony of P.W.-1 and P.W.-3 would not be proper as it has been submitted by Mr. Sinha. He further submits that occurrence is there as per the charge-sheet and the same has been corroborated by P.W.-5-Investigating Officer and there is also injury, as per the injury report which has been marked as Exbt.-7 and hence there is cogent evidence present for convicting the appellant and taking into consideration all these aspect of the matter, the judgment has been passed hence, there is no infirmity in the same. 7. 7. Heard learned counsel for the parties and after appreciating their rival submissions, going across the lower Court record and the judgment impugned, this Court before looking into the illegality and impropriety of the judgment, it would be proper to discuss the deposition of the witnesses who have examined in course of the trial. 8. Anil Kumar Singh has been examined as P.W.-1, who happens to be son of the informant and has stated that the occurrence took place on 26.02.1989 and while watching television along with his father (informant who had died in course of trial), 3-4 persons covering their mouth with towel had entered into the house and locked them in a room by putting a man at the door and thereafter started looting the articles. His father has reported the matter before the concerned police station, the accused persons have assaulted in the feet and thigh and after seeing the police, they had fled away after taking out the articles. He has further stated that he had seen the dacoit but not identified because of night. 9. P.W.-2 namely Sobha Singh who is the daughter of the informant and was in the room but after hearing the noise, she came out and saw that accused persons were beating and threatening by showing knife and looted the household articles. She stated that she has identified one person but the person present in the Court was not the same person at the time of occurrence, the person present is Nasim Mian. 10. Sunil Kumar Singh has been examined as P.W.-3 has stated that his father (informant) had died seven years ago but signature in the fardbeyan is of his father who was impressing in his presence and as such on identification by him, which has been reflected in Exbt.-1, the handwriting on the fardbeyanhas been identified by him as Exbt.-1/A. He has stated that the incident took place 14-15 years ago at about 9:30-10:00 p.m in the night. They were in the house, some miscreants are entered into his house and locked them in a room by showing a knife. He has stated that his father has shouted by saying ‘dacoit dacoit’, thereafter there was sound of explosion of bomb but before reaching the police, they had fled away. They were in the house, some miscreants are entered into his house and locked them in a room by showing a knife. He has stated that his father has shouted by saying ‘dacoit dacoit’, thereafter there was sound of explosion of bomb but before reaching the police, they had fled away. They have also taken valuable articles from his house on which an inventory was prepared which has been marked as Exbt.-2. He has stated since the incident had took place 10-15 years ago, he was not in a position to identify the accused persons. In the cross-examination, he has stated that fardbeyan was not treated in his presence and has also not with the concerned police official and there is no signature, his signature was not visible in the seizure memo. 11. Arvind Kumar Sinha has been examined as P.W.-4, he has identified signature of the Judicial Magistrate before whom Test Identification Parade has been conducted. In the cross-examination, he has stated that Test Identification Parade was not conducted in his presence. 12. Ramdeo Prasad has been examined as P.W.-5 and was the Investigating Officer in the case who has identified the signature of Judicial Magistrate over Test Identification Parade report, marked as Exbt.-5. He has proved the fardbeyanon the basis of which an FIR was registered on the handwriting of Bijendra Singh who had visited the place of occurrence and recorded the statement of the witnesses. In the cross-examination, he has stated that he has not visited the place of occurrence rather he has recorded the description of the place of occurrence on the basis of the statement of the doctor. 13. Jagat Kihsore Dutta has been examined as P.W.-6 who was the doctor posted in the Jamtara Sadar Hospital and has proved the injury report which is in the signature of doctor H.P. Mandal, marked as Exbt.-7 14. This Court, after going across deposition of the prosecution witnesses, has found that the incident took place in presence of P.W.-1, P.W.-2 and P.W.-3, all are the sons and daughter of the informant (who had died in course of the trial). P.W.-1 has deposed that he has seen the accused person and also has identified while P.W.-3 says that since, the incident took place long ago and as such, she is not in a position to identify any of the accused persons. P.W.-1 has deposed that he has seen the accused person and also has identified while P.W.-3 says that since, the incident took place long ago and as such, she is not in a position to identify any of the accused persons. P.W.-2 Sobha Singh, who happens to be daughter of the informant has identified the appellant in Test Identification Parade before the Judicial Magistrate. She in course of deposition has stated that Nasim Mian who was present in the Court but he was not present at the time of occurrence. On the date, i.e. on deposition, the appellant namely Ataul Mian was not present in the Court rather he was allowed to be represented through the counsel. P.W.-2 says that the person present in the Court namely Nasim Mian was not present at the time of occurrence and as such the second man i.e., Ataul Mian appellant was present, which she had identified in Test Identification Parade. 15. The trial Court solely based upon deposition of P.W.-2 has convicted the appellant. It is not in disputed so far as the material available against the appellant is concerned that P.W.-1 and P.W.-3 had seen the occurrence but although P.W.-1 has said that he can identify but there is nothing available on record that he has identified the appellant likewise P.W.-3 while on the other hand has stated that he cannot identify the appellant since the incident took place 10-15 years ago. The injury is there but the Investigating Officer while he has stated in the examination-in-chief, he has visited the place of occurrence but retracting back from his statement. In his cross-examination, he has stated that he has not visited the place of occurrence rather whatever has been recorded by him is based upon the reiteration of the concerned doctor. 16. The injury is there but the Investigating Officer while he has stated in the examination-in-chief, he has visited the place of occurrence but retracting back from his statement. In his cross-examination, he has stated that he has not visited the place of occurrence rather whatever has been recorded by him is based upon the reiteration of the concerned doctor. 16. It is not in dispute so far as the settled position of law is concerned that identification made in Test Identification Parade cannot be said to be the sole piece of evidence to convict the person unless it will be corroborated by the statement of the other witnesses since the identification in the Test Identification Parade is said to be a weak piece of evidence if not corroborated, as has been stated by P.W.-2 that she has identified the appellant in the Test Identification Parade but the admitted position is that Ataul Mian appellant was not present in the Court on that date and hence it cannot be presumed that if a person identified in Test Identification Parade is not present before the person who is claiming to identify him and if he or she is identifying the said identification cannot be said to be a conclusive proof of identification in absence of such person, Meaning thereby, the trial Court ought to have not allowed the appellant to be represented through lawyer by allowing his application under Section 317 Cr.P.C. but he has allowed the same, making a room for the appellant creating a weak piece of evidence. Now the question is that when rightly or wrongly the appellant has not been produced before the Court, how can it be said to be conclusive proof of identification in absence of the said person, as has been stated hereinabove. The Test Identification Parade can be said to be conclusive, if that person will be identified by the witness identified in the Test Identification Parade before the concerned Judicial Magistrate and admittedly, the said situation is not available here as per the deposition of P.W.-2 as has been recorded in paragraph-14 of the impugned judgment. 17. The Test Identification Parade can be said to be conclusive, if that person will be identified by the witness identified in the Test Identification Parade before the concerned Judicial Magistrate and admittedly, the said situation is not available here as per the deposition of P.W.-2 as has been recorded in paragraph-14 of the impugned judgment. 17. This Court, therefore is of the view that the identification of the P.W.-2 cannot be said to be conclusive proof of evidence rather it can be said that the conviction of appellant has been made on presumption and it is settled so far as the criminal jurisprudence is concerned that right to liberty of a person can be taken if the charge against such person proved beyond all reasonable doubt, the word is that “beyond all reasonable doubt”, meaning thereby, there must not be, “if and but”, then only right to liberty of a person can be taken. 18. Here in the instant case, admittedly the identification as has been claimed by P.W.-2 in her deposition and is doubtful since the same is based upon presumption and based upon the same, the order of conviction has been passed, therefore, it cannot be said that offence committed by the appellant has been proved by the prosecution beyond all reasonable doubt. The trial Court ought to have been taken into consideration these aspects of the matter but by not doing so, gross illegality has been committed, therefore, the impugned judgment cannot be said to be proper. 19. In the result, the order of conviction and sentence dated 12.12.2008 passed by learned Additional Sessions Judge-III, (Fast Track Court), Jamtara in Sessions Case No.157 of 2001, arising out of Jamtara P.S. Case No.39/1989, G.R. Case No.89/1989 are hereby, quashed. The appellant is discharged from all criminal liabilities, accordingly, this appeal is allowed. 20. This Court before passing of the order expresses it thanks to Mr. Anil Kumar Sinha, for giving proper assistance to the Court in final disposal of the appeal. 21. The Member Secretary, Jharkhand State Legal Services Authority is directed to reimburse the admissible fee to Mr. Anil Kumar Sinha, Amicus Curiae within a period of four weeks. Appeal allowed.