JUDGMENT : A P THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of acquittal dated 26.5.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.6, Jamnagar, in Criminal Appeal No. 8 of 2005, the State has preferred this appeal under . 2. The brief facts of the case are that the complainant filed a complaint stating that when he along with his wife was going towards Ranuja in a Maruti Car, at that time, near Village-Khiri, three persons came on a Hero Honda motor cycle and stopped it in front of the car and asked the complainant and his wife to leave the car and they were also robbed of Rs.1,000/-. Thereafter, the accused ran away in Maruti Car from the scene of offence. With these facts, a complaint was lodged with Jodiya Police Station for the offence under Section 392 read with Section 114 of the Indian Penal Code (hereinafter referred to as “IPC”), which was registered as C.R.No. 73/2001. 3. It appears from the record that initially two accused were arrested and criminal case being Criminal Case No.247 of 2001 was conducted against them. Pending trial, present appellant-accused was arrested and after completion of necessary investigation, supplementary charge sheet came to be filed before the Court of learned Judicial Magistrate, First Class, Jodiya at Jodiya, District-Jamnagar, which was registered as Criminal Case No.308 of 2002. 4. It appears from the record that learned trial Judge has conducted both the cases separately and, thereafter taken into consideration the evidence recorded in Criminal Case No.247 of 2001 as well as the evidence recorded in Criminal Case No.308 of 2002, and has ultimately, convicted the present accused for the offence under Section 392 read with Section 114 of IPC and imposed sentence of rigorous imprisonment of three years and fine of Rs.2,000/- and, in default thereof, to undergo one year’s simple imprisonment. He has also given set off to the accused. 5. Being aggrieved and dissatisfied with the judgment of conviction, as recorded by the learned trial Court, the present accused preferred an appeal before the learned Sessions Judge, Jamnagar, wherein it was registered at Criminal Appeal No.8 of 2005. After re-appreciating the evidence on record, learned Sessions Judge vide impugned judgment acquitted the present respondent and reversed the judgment of conviction recorded by the trial Court. 6. After re-appreciating the evidence on record, learned Sessions Judge vide impugned judgment acquitted the present respondent and reversed the judgment of conviction recorded by the trial Court. 6. Against this order of the learned Additional Sessions Judge, the State has preferred this appeal. 7. I have heard learned APP, Mr. Pranav Trivedi at length and also perused the judgment of the learned trial court as well as the judgment of the appellate court along with the evidence produced on record. Mr. Pranav Trivedi, learned APP has vehemently submitted that the learned Sessions Judge has committed a serious error of facts and law in reversing the judgment of conviction. According to him, the learned trial Judge has properly appreciated the evidence on record and has properly convicted the accused for the offence under section 392 read with section 114 of IPC, on the basis of the evidence of the complainant, eye witness, Executive Magistrate and evidence of the panchas of the T.I. parade. According to him, the reasoning given by the learned Sessions Judge is not in consonance with the settled legal principles and the impugned judgment is improper, perverse and bad in law, which is required to be interfered with by this Court. He has, accordingly, prayed to allow present appeal and restore the order of the learned trial Court convicting the accused. 8. On perusal of the records of the trial court, it appears that entire case of the prosecution is based on the evidence of the complainant, his wife, panchas of the T.I. Parade and the Executive Magistrate, who has conducted the T.I. Parade. Perusal of the evidence of the complainant Hamirbhai Lakhmanbhai, PW-2, Exh.5, it appears that he has narrated the facts that the incident had happened on 27.8.2001, when he was travelling in a Maruti Car along with his wife and, at that time, three persons came on Hero Honda having registration No.GJ-3 N-5726 and stopped his car and taken away Maruti Car and Rs.1,000/- from him and, thereafter, he has filed the complaint. From the perusal of his chief-examination, it appears that he has not narrated the description of the accused in any manner. Further on perusal of the evidence of Puniben Hamirbhai, PW-4, Ex.7, it appears that she has also not narrated anything regarding the description of the accused. She has simply stated that there were three persons at the time of the incident. Further on perusal of the evidence of Puniben Hamirbhai, PW-4, Ex.7, it appears that she has also not narrated anything regarding the description of the accused. She has simply stated that there were three persons at the time of the incident. 9. From the evidence of the panch witness, Hardevsinh Jitubha, who was allegedly present during the test identification parade of the accused before the Mamlatdar on 28th July 2007, Exh.28, it appears that in his examination in chief, he has stated that he was in the office of Mamlatdar and at that time, there were four or five persons there and, thereafter, Hamirbhai was called and Hamirbhai was asked to identify one person from four to five persons and, thereafter, he has identified the present accused. On perusal of the crossexamination of this witness, it appears that he has stated that there were ten persons in the chamber but names of all those persons were not narrated in the panchnama and he has shown his ignorance as to at which number the accused was standing in the queue. He has also admitted that he has signed on an already prepared panchnama. Thus, from his evidence, there is nothing coming out as to whether the present accused was identified by the complainant or not. 10. From the evidence of the Executive Magistrate, Jeram Premjibhai Mandpara, Exh.30, it appears that he has simply stated, in his chief examination, that there were five dummy persons and two panchas and, in the presence of the panchas, the complainant has identified the present accused. In the chief examination, he himself has stated that the accused was asked to stand between number 3 and 4. On perusal of his cross-examination, it is found that he has instructed the accused to stand in between number 3 and 4. He has shown his ignorance as to what type of clothes were worn by the accused. Of course, he has stated that this fact has been narrated in the panchnama. On perusal of the panchnama, which is at Exh.25, it appears that there is no mention of description of clothes of the accused or five dummy persons. He has shown his ignorance as to what type of clothes were worn by the accused. Of course, he has stated that this fact has been narrated in the panchnama. On perusal of the panchnama, which is at Exh.25, it appears that there is no mention of description of clothes of the accused or five dummy persons. On reading the panchnama at Exh.25, it is found that each of the accused is around 39 years old, whereas the dummy persons are of the age of 19 to 22 years and there is no description of either of the dummy persons or the accused in the entire panchnama. Of course, in the panchnama, it has been stated that the dummy persons are of the same age and of the same description but there is no statement that the dummy persons were of the age of the accused and the description was also same. 11. It appears that other panch, Habib Aamad, has also not supported the version of the prosecution that T.I. Parade of the accused was conducted and the present accused was identified by the complainant. 12. Considering the evidence on record, it appears that test identification parade conducted by the Executive Magistrate in this case is not proper one and, in absence of any other evidence on record, solely on the basis of such test identification parade, the accused cannot be convicted for the alleged offence. So far as evidence of other witnesses is concerned, their evidence is in the nature of hearsay evidence. 13. On perusal of the judgment of the trial court convicting the accused, it is found that he has based his order on the evidence recorded in Criminal Case No.247 of 2001 for recording conviction against the present accused. This is not permissible under law and only the evidence produced against present accused is required to be considered. However, the trial court has considered the evidence recorded against other two accused persons for convicting present accused. This is the material illegality in convicting the present accused. 14. This is not permissible under law and only the evidence produced against present accused is required to be considered. However, the trial court has considered the evidence recorded against other two accused persons for convicting present accused. This is the material illegality in convicting the present accused. 14. Now, so far as the impugned judgment of acquittal passed by learned Additional Sessions Judge is concerned, it is found that he has threadbare analyzed the evidence of the complainant, his wife, Executive Magistrate and evidence of the panch witnesses of T.I. Parade and, after re-appreciating the entire evidence on record, learned Additional Sessions Judge has reversed the judgment of conviction recorded against present accused. On re-appreciating the evidence on record, it is clearly found that whatever evidence is on record is regarding two other accused persons and there is no iota of evidence connecting present accused with the alleged crime. It is pertinent to note that, as observed by the learned Additional Sessions Judge that before T.I. Parade was done on 28th July 2002, the present accused was in custody from 25th July 2002 and he was brought from police custody of LCB, Jamnagar. This very fact suggests that the entire exercise of T.I. Parade is not properly done and the factum of T.I. Parade itself is not supported by the evidence of the Executive Magistrate himself and the panch witnesses thereof. 15. Considering entire evidence on record, it appears that the learned trial Judge has committed error of facts and law in convicting the accused and the learned Additional Sessions Judge has properly re-appreciated the evidence on record and has properly recorded the order of acquittal. Therefore, there is no factual as well as legal infirmity in the impugned judgment of the learned Sessions Judge. 16. Resultantly, present appeal fails and it is accordingly dismissed. The impugned judgment and order of acquittal dated 26.5.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.6, Jamnagar, in Criminal Appeal No.8 of 2005 acquitting the present accused by reversing the judgment and order of conviction dated 14.12.2004 passed by learned Judicial Magistrate, First Class, Dhrol-Jodiya, Camp-Jodiya in Criminal Case No.308 of 2002 is hereby confirmed. Bail bond, if any, stands cancelled. Fine, if paid, be refunded to the accused. Record and proceedings be sent back to the concerned Trial Court forthwith.