JUDGMENT : K.N. Phaneendra, J. 1. The appellant who was arraigned as accused No. 2 in S.C. No. 136/2009 on the file of Sessions (Special) Judge, Bagalkot has preferred this appeal against the judgment of conviction and sentence passed in the said case vide judgment dated 06th day of July 2011. Wherein, the Trial Court has convicted the appellant for the offence under Section 394 of Indian Penal Code ("IPC" for short) and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,000/- with default sentence to undergo simple imprisonment for a period of three months. 2. Totally two accused were prosecuted in the said special case. However, during pendency of the trial, accused No. 1 reported to be dead on 24.07.2009 and the proceedings were abated against accused No. 1. 3. I have heard the arguments of the learned counsel for the appellant and learned Additional State Public Prosecutor and carefully perused the judgment of the Trial Court and as well as the oral and documentary evidence placed by the prosecution for consideration of this Court. 4. The brief factual matrix of the case are that, the respondent-police have laid a charge sheet against as many as four accused persons in the original charge sheet in C.C. No. 506/2004 for the offence punishable under Sections 302 and 394 of IPC. The other accused persons by name Chinna and Sakiya who were tried by the Sessions Court in S.C. No. 84/2002 and they were convicted and they are undergoing the said sentence. They have not challenged the judgment of the Trial Court in S.C. No. 84/2002. 5. As the appellant and another accused Sharnya were absconding, subsequently a split up charge sheet has been filed against them. On committal, a sessions case in S.C. No. 136/2009 was registered and the appellant and another accused by name Sharnya were tried and the appellant is convicted for the above said offences. 6. The brief factual matrix of the case as per the charge sheet is that, the accused persons on 15.12.2001 at about 8.30 p.m. in the night with a common intention to commit dacoity/robbery, have entered into the farm hut belonging to the complainant by name Sulochana W/o. Yamanappa Haralayya situated at Hire-Upnal village in Ilkal taluk, Bagalkot district. 6. The brief factual matrix of the case as per the charge sheet is that, the accused persons on 15.12.2001 at about 8.30 p.m. in the night with a common intention to commit dacoity/robbery, have entered into the farm hut belonging to the complainant by name Sulochana W/o. Yamanappa Haralayya situated at Hire-Upnal village in Ilkal taluk, Bagalkot district. After entering the house of the complainant, they gave life threat and assaulted the husband of the complainant by name Yamanappa S/o. Ayyappa Haralayya with jambhya (knife) and stick and caused grievous hurt to him and thereafter committed robbery of Mangalasootra, Tali, two bendole, two Bugadi Kaddi worn by the complainant totally worth Rs. 8,000/- and also snatched a cash of Rs. 3,000/- kept in the hut and Rs. 200/- from the possession of Yamanappa. During the commission of the said robbery, the accused persons have also seriously assaulted the husband of the complainant with jambia and stick which caused severe injuries to him and he died due to the injuries sustained by him. 7. On the complaint lodged by the said Sulochana, the police have investigated the matter and submitted the charge sheet. However, it is clear that the accused were not traced for a period of more than nine years and afterwards it appears the accused persons were traced out and they were put on the trial before the Trial Court, after committal proceedings. 8. In order to bring home the guilt of the accused, the prosecution has examined as many as 10 witnesses P.Ws. 1 to 10 and got marked Exs. P.1 to 13 and 13(a) and also got marked M.Os. 1 to 11. The accused/appellant was also examined under Section 313 of Cr.P.C. Thereafter, the appellant did not choose to lead any defence evidence, after hearing the arguments on both the sides and on appreciation of the evidence on record, the Trial Court has concluded that, the prosecution has proved the case beyond reasonable doubt and as such it recorded a judgment of conviction and sentence against the accused as noted supra. 9. Before adverting to the material evidence on record, it is just and necessary to have the cursory look at the evidence of the prosecution witnesses. 10. P.W. 1-one Mr. Atmaram Bhagawanth Kamble is the inquest pancha witness. 9. Before adverting to the material evidence on record, it is just and necessary to have the cursory look at the evidence of the prosecution witnesses. 10. P.W. 1-one Mr. Atmaram Bhagawanth Kamble is the inquest pancha witness. He has stated that, the police have conducted inquest panchanama on the dead body of the husband of the complainant as per Ex. P.1 and the police have also seized one Rudrakshi chain and waste thread. There is no dispute whatsoever with regard to the death of the said deceased. The case of the accused is that total denial of the prosecution case. It is their case that, they have not committed any offence as alleged against them. Therefore he cannot deny the death of deceased as the Investigating Officer during the course of investigation following the procedure, has conducted the said inquest panchanama. 11. P.W. 2 is also a spot pancha who has also supported the case of the prosecution stating that the police on the next day of the incident have visited the scene of offence and conducted the spot mahazar as per Ex. P.3 and they have collected blood stained earth (soil) and unstained earth (soil) one dhoti and shirt of the deceased as per M.Os. 1 to 4. Again it goes without saying that this aspect also cannot be denied by the accused/appellant, though it is formally suggested that no such panchanama was drawn by the police. 12. P.W. 3 is the main witness who is the complainant, which I will discuss her evidence little later because only the important evidence to be considered by the Court is the evidence of P.W. 3. 13. P.Ws. 4 & 6 are the pancha witnesses to Exs. P.5 and P.6. Under Ex. P.5, the police have recovered a club and one knife from the original accused No. 1 and also under Ex. P.6, the police alleged to have recovered M.Os. 9 to 10, which are the gold articles belonging to the complainant (PW3). This was also actually recovered from Sakiya who is arrayed as original accused No. 2 in S.C. No. 84/2002. These witnesses i.e., P.Ws. 4 and 6 have not supported the case of the prosecution. They were treated as hostile even in the course of cross-examination nothing worth has been elicited in order to implicate them particularly the present appellant. This was also actually recovered from Sakiya who is arrayed as original accused No. 2 in S.C. No. 84/2002. These witnesses i.e., P.Ws. 4 and 6 have not supported the case of the prosecution. They were treated as hostile even in the course of cross-examination nothing worth has been elicited in order to implicate them particularly the present appellant. Nothing alleged to have been recovered from the present appellant. 14. P.W. 5 is the doctor, he has examined the husband of the complainant by name Yamanappa and also the injured Sulochana and gave injury certificates as per Exs. P.7 and 8. Though, in the course of cross-examination it is suggested that the doctor has not stated the nature of the injury and how those injuries could caused. Except that, nothing worth has been elicited to discredit the evidence of the doctor. Therefore, it goes without saying that, the complainant has suffered injuries in an incident taken place in her house and death of her husband was also caused in the said accident. 15. P.W. 7 is the Sub-Inspector of Police who has received the complaint as per Ex. P.4 from P.W. 3 and registered a case and dispatched the FIR at Ex. P.9 to the jurisdictional Court. 16. P.W. 8 is the another circumstantial witness by name Shankar Haralayya who has deposed that on the date of incident, he saw some four persons running away from the direction of the house of the complainant. 17. P.W. 9 is the goldsmith examined for the purpose of establishing that M.Os. 9 to 11 were recovered at the instance of one Chinna and Sakiya original accused Nos. 1 and 2 tried in S.C. No. 84/2002. He has also turned hostile to the prosecution. 18. Looking to the above said evidence, the evidence of P.W. 3 and P.W. 8 are only the evidence which requires to be considered by this court, whether the said witnesses are credible and acceptable. It is also made available to the Court that and it is also not disputed that the incident was happened on 15.12.2001. The present appellant and other accused were arrested on 17.11.2009. Therefore, after long lapse of nearly 8 years the accused persons were detected and arrested. The evidence also shows that, there is absolutely no recovery at the instance of the present appellant. Even the recovery sought to be proved against other accused Nos. The present appellant and other accused were arrested on 17.11.2009. Therefore, after long lapse of nearly 8 years the accused persons were detected and arrested. The evidence also shows that, there is absolutely no recovery at the instance of the present appellant. Even the recovery sought to be proved against other accused Nos. 1 and 2 i.e., Chinna and Sakiya (in S.C. No. 84/2002) is also not proved before this Court as P.W. 9 has turned totally hostile to the prosecution. Though complainant-P.W. 3 has identified M.Os. 9 to 11 as that of the complainant, but there is no connecting material to show that the recovery was made from the present appellant or it is proved in this particular case that the same was recovered at the instance of accused Nos. 1 and 2 of the original charge sheet, when particularly the accused persons have denied any recovery from them and there is no connection between themselves and the other accused persons i.e., the original accused Nos. 1 and 2 Chinna and Sakiya. It is the responsibility of the prosecution to prove the connectivity between all the four accused persons and establish that all the four accused persons have committed conjointly the offences alleged against them. 19. In the above said background, when the death of the deceased Yamanappa is not denied, injuries on P.W. 3 cannot be denied by the accused persons and even dacoity in the house of P.W. 3 cannot be denied by the Accused persons, because it is their only contention that the appellant was not the person, who is involved in this particular case. Therefore, from the evidence of P.Ws. 3 and 8, the Court has to ascertain whether there evidence is trustworthy for acceptance in order to unerringly implicate the accused to the crime. 20. P.W. 3 has deposed that, about 10 years ago in the night hours four persons came to their house, after seeing them, the husband of the complainant talked with them and questioned them why they have come near their house. At that time, two persons caught hold the hands of P.W. 3 and snatched the golden tali and ear studs. P.W. 3 has deposed that, about 10 years ago in the night hours four persons came to their house, after seeing them, the husband of the complainant talked with them and questioned them why they have come near their house. At that time, two persons caught hold the hands of P.W. 3 and snatched the golden tali and ear studs. At that time the deceased made attempts to catch hold one of the persons at that time one of the persons assaulted on the head of the deceased and another person has assaulted with a club on his head and they had also taken away an amount of Rs. 3,000/- kept inside the hut and also snatched Rs. 200/- from the pocket of the deceased. They were all approximately aged about 25 to 30 years and they were all wearing lungi and banian. She has further deposed that she has seen them in a lamp which was burning inside the hut. She has also identified the appellant as one of the culprits in the Court. Basing on this identification, the Trial Court has convicted the accused/appellants for the above said offences. The Trial Court has acquitted the accused for the offence under Section 302 of IPC relying upon the same evidence on the ground that there is no specific averment as to out of the four persons who has actually assaulted the deceased. Likewise, there is absolutely no evidence in the examination-in-chief narrating any overt-act of the appellant and also the grounds for identification of the said person before the Court for the first time after long lapse of 10 years, it also creates a serious doubt, whether a person who was seen in a dim light inside the hut and he was not subjected to any identification parade or he was not at-least shown by police in the police station immediately after their arrest to the complainant, was it possible for the complainant to identify such person before the Court for the first time. 21. Before dealing this particular aspect, it is also necessary to deal with the evidence of P.W. 8. P.W. 8 is no other than the son of P.W. 3, he has identified the accused/appellant who was also one of the persons running away from the house of the deceased on that particular day. 21. Before dealing this particular aspect, it is also necessary to deal with the evidence of P.W. 8. P.W. 8 is no other than the son of P.W. 3, he has identified the accused/appellant who was also one of the persons running away from the house of the deceased on that particular day. It is there in his evidence that, on that particular day at about 7.30 to 8.00 p.m. when he was returning from the floor mill he was at a distance of 50 to 60 feet from his house he saw four persons running from their hut towards Upanal village. Thereafter he went to the house of the complainant and saw the injuries on the deceased person and complainant was also injured and he came to know that four persons came and robbed the ear studs, nose stud and mangalasootra of the complainant. He has not stated in his examination-in-chief, how and on what basis he could identify any of the accused particularly the appellant and he has never stated that whether he has seen the faces of those four persons. Except stating that, he saw four persons running away from his house. Therefore in my opinion his evidence is not so acceptable and credible in order to draw any inference that, in the night hours whether he could identify any of the four persons who are running away, muchless the accused/appellant. 22. Insofar as dacoity cases and robbery cases are concerned, the identification of the accused is the harbinger and it plays a dominant role either to accept or to reject the case of the prosecution. In this context, it is worth to refer a decision of this Court reported in 2015 (2) AKR 274 between Chandrappa S/o. Hanumanthappa Kolar & others Vs. State of Karnataka, this Court has held that : "Dacoity - the identification of the accused persons - the accused allegedly wearing monkey caps at the time of incident - no identification facts or identification features of accused divulged by witness at the earlier point of time after arrest police shown accused persons to witnesses - identification of accused by witnesses in T.I. parade or before Court cannot be said to be proper identification of accused - evidence of identification, thus not a substantive evidence." 23. While dealing with the above said case, this Court has also relied upon a decision of the Apex Court reported in 1979 SC 1127 between Kanan Vs. State of Kerala. Wherein, the Apex Court has observed that "It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his power of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding identification of an accused for the first time in Court." 24. Again this Court has relied upon another judgment of the Orissa High Court reported in 1996 Crl.L.J. 1019 between Shyamalal Pradhan Vs. State of Orissa, where it was held that : "Identification parade not conducted-witness identify the accused for the first time in the Court - such evidence cannot be relied in the absence of corroboration by an earlier test identification parade or any other material to connect the accused to the crime". 25. Applying the above said principles to the present case, it is evident that the physical feature of any of the accused persons have not been stated by any of the witnesses even in the complaint lodged by P.W. 3 as per Ex. P.4. There is nothing to indicate that in what manner the accused persons could be identified by the complainant is not stated. Even their physical feature, colour complexion, height, fattiness or leanness nothing has been stated in the complaint as to in what manner if subsequently those persons are shown to the complainant or seen by the complainant she could able to identify the said person. 26. Secondly, in this particular case after arrest of the accused in the natural way of investigation normally the police would show the accused persons to the complainant. In this case, even the accused persons at no point of time were shown to the complainant no test identification parade was conducted after arrest of the accused. 26. Secondly, in this particular case after arrest of the accused in the natural way of investigation normally the police would show the accused persons to the complainant. In this case, even the accused persons at no point of time were shown to the complainant no test identification parade was conducted after arrest of the accused. No reasons have been assigned by the investigating agency as to why such an important procedure has been not followed. 27. Therefore, looking to the above said facts and circumstances, though the complainant has stated before the Court that she could identify the appellant as one of the robbers entered her house but the said evidence is not supported by other connecting material before the Court. Therefore, it creates a serious doubt whether after long lapse of 10 years she could able to identify and pinpoint the present appellant as one of the culprits. Therefore, in my opinion it is a serious doubt crept in the case of the prosecution which has not been satisfactorily explained. 28. Further added to the above, there is absolutely no recovery and there is no allegation that this person has actually assaulted the deceased. Under the above said facts and circumstances, in my opinion the trial court ought to have exercised its discretion and out to have acquitted the accused by giving benefit of the above said doubts. Hence, for the above said reasons, the following order is passed. ORDER (a) The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the learned Sessions (Special) Judge, Bagalkot dated 06th day of July, 2011 in S.C. No. 136/2009 for the offence under Section 394 of IPC is hereby set aside. (b) The accused/appellant is hereby acquitted for the charge leveled against him for the offence under Section 394 of IPC. (c) As the accused has already been on bail granted by this Court while suspending the sentence his bail bond and bond executed by the surety are hereby cancelled. (d) Fine amount, if any, deposited before the trial Court by the accused, the same shall be refunded to him after proper acknowledgement and identification.