JUDGMENT : Sujit Narayan Prasad, J. 1. It appears from the order dated 11.04.2019 passed by the co-ordinate Division Bench of this Court that the instant appeal so far as it relates to the original appellant no.1, namely, Raju Sah; original appellant no.2, namely, Ramrai Hembrum; original appellant no.5, namely, Kewta Hembram and; original appellant no.6, namely Roshan Hembram, stands abated since it has been stated in the aforesaid order that they have passed away as per the report of the Officer-in-charge, P.S. Kotalpokhar which had been filed by the learned APP. Accordingly, the names of the aforesaid appellants had been deleted and the surviving appellants have been allotted with the new serial numbers. 2. The instant appeal is against the Judgment of conviction and Order of sentence dated 16th January, 1995, passed by learned Sessions Judge, Sahebganj, in Sessions Trial No. 319 of 1991, whereby and whereunder, the appellants have been convicted under Section 396 of I.P.C. and directed to undergo rigorous imprisonment for life. 3. The prosecution story in brief as per the Fard Beyan is that in between 21.03.1990-22.03.1990 at village Jambad Santhali Tola, P.S. Kotalpokhar, District-Sahibganj, the informant Mati Soren, P.W. 1, alongwith the deceased persons and other members of the family was sleeping in the house. At about 2:00 a.m., the dacoits armed with pistol and torch after scaling came into the courtyard, they entered into the rooms and began to loot the articles. The dacoits also looted the household articles. They also snatched the silver chain, gold ring, payal, Nakchhod, etc. The dacoits after entering into the house and before killing the deceased persons, led the deceased persons into a room and committed murder and after looting the household articles, they ran away. The informant raised alarm and the villagers arrived and she narrated the incident. The informant alleged that the dacoits had torch and in its light, she identified them. After the occurrence, the police arrived and her fard beyan was recorded, which has been exhibited as Ext. 9, in presence of the witnesses on the basis of which the FIR had been instituted. The case was registered and the inquest report was prepared (Exts. 8, 8/1 and 8/2). The police also seized the articles and prepared the seizure list (Exts. 10, 10/1, 10/2 and 10/3). 9, in presence of the witnesses on the basis of which the FIR had been instituted. The case was registered and the inquest report was prepared (Exts. 8, 8/1 and 8/2). The police also seized the articles and prepared the seizure list (Exts. 10, 10/1, 10/2 and 10/3). The dead bodies were sent for post mortem and after completing the investigation the police submitted the chargesheet against the accused persons. The appellants having not pleaded guilty, the trial commenced and the testimony of altogether 18 witnesses have been recorded as also the documents have been exhibited basis upon which the learned trial court has found the charges proved against the appellants under Section 396 of I.P.C. and have been sentenced to undergo rigorous imprisonment for life. 4. Mr. Yasir Arafat, learned counsel for the appellants has submitted by referring to paragraph-7 of the impugned judgment of conviction that the learned trial court has found the cogent evidence from the testimony of P.W. 1 who has deposed in her testimony that she claim to have identified the dacoits who were flashing their torch light and searching and looting the article. It has been argued that merely on the basis claim being made by P.W. 1 said to have identified the appellants while committing dacoity in her house, the same cannot be said to be cogent evidence to come to the conclusion that the charge levelled against the appellants have been found to be proved beyond all shadow of doubt. It has been submitted that the appellants have never been put to TIP as also have not been identified by the P.W. 1, the informant, in the dock in course of trial. The learned counsel for the appellants on the basis of the aforesaid submission has submitted that the finding of the learned trial court since is based upon the claim being made by the P.W. 1 to have identified these appellants as dacoits, cannot be said to be cogent evidence to prove the culpability of the appellants for their conviction for commission of offence under Section 396 of I.P.C., as such, the judgment of conviction suffers from material illegality and hence not sustainable in the eyes of law. 5. Mr. 5. Mr. Vineet Kumar Vashistha, learned special public prosecutor has submitted that it is incorrect on the part of the appellants to take the ground that merely the claim being made by P.W. 1 to have identified these appellants, the same is the evidence against them rather the same has also been found support from the testimonies of other witness, as such, if the learned trial court has taken into consideration the aforesaid testimonies and material available on record together with the testimony of P.W. 1, as such, it cannot be said that the judgment of conviction suffers from any illegality. Learned Spl. PP on the basis of the aforesaid submission has submitted that the instant appeal is fit to be dismissed. 6. We have heard the learned counsel for the parties, perused the material available on record including the testimony of the prosecution witnesses, the inquest report and the post mortem report and other exhibits. 7. Md. Noman Ali has been examined as P.W. 6. He is the T.I. Parade Magistrate. He has stated that during T.I. Parade the informant Mati Soren identified accused Sham Nureman who fired with his pistol and he prepared the T.I. Parade chart (Ext.1). 8. Santosh Hembrom has been examined as P.W. 7 who is the witness on the inquest report in whose presence the inquest reports of three dead bodies were prepared and he made his signatures (Exts. 2 to 2/1 and 2/2). 9. Taresh Chandra Saha has been examined as P.W. 8 who is also a witness who has proved his signature (Ext.4) on the seizure list. 10. Kalipado Saha has been examined as P.W. 9 who has proved is signatures on the inquest report (Exts.2/3 to 2/5). 11. Brajnandan Saha, the Mukhiya has been examined as P.W. 10 who has stated that on the alleged date the police had come. He also went to the place of occurrence and found three dead bodies and the police prepared the inquest report and he made his signature (Ext.2/6). 12. Tipu Murmu has been examined as P.W. 12 who is a hostile witness. 13. Sunita Soren has been examined as P.W. 13 who has stated that on the alleged date and time she alongwith her children and other members was sleeping. 12. Tipu Murmu has been examined as P.W. 12 who is a hostile witness. 13. Sunita Soren has been examined as P.W. 13 who has stated that on the alleged date and time she alongwith her children and other members was sleeping. In the meantime the dacoits came and they looted away the household articles including ornaments and thereafter the dacoits assaulted the deceased persons with knife and they fired with the pistol causing the death of her father-in-law, husband and brother-in-law but she could not identify the dacoits. She has further stated that the dacoits were flashing their torch light during the time of committing dacoity. 14. Sunil Kumar Sah has been examined as P.W. 15 who has formally proved the FIR (Ext.7) I writing of S.I. Ramanuj Singh of Barharwa police station. 15. Pashpati Nath Bhattacharya has been examined as P.W. 16 who has stated that on 09.08.1990 he took the charge of this case from Ramanuj Singh and recorded the statement of this case from Ramanuj Singh and recorded the statement of the witness and on 01.04.1991 he gave the charge of this case to one Gangadhar Pandey, officer-in-charge who submitted the charge sheet. He has further proved three inquest reports in carbon process prepared by S.I. Ramanuj Singh bearing his signature (Exts. 8, 8/1 and 8/2) and the fard beyan (Ext.9) and four seizure lists prepared by S.I. Ramanuj Singh in carbon process (Exts. 10, 10/1, 10/2 and 10/3). 16. Dr. S.P. Singh has been examined as P.W. 17 who has formally proved the post mortem reports (Ext. 11, 11/1 and 11/2) written and bearing the signature of Dr. S.K. Gupta. He has stated that Dr. S.K. Gupta has been retied and he cannot say the whereabouts. 17. Gangadhar Pandey has been examined as P.W. 18 who has stated that on 06.04.1991 he took up the charge of this case and by the order of the S.P. he submitted the charge sheet. He has identified the signature of S.I. Ramanuj Singh (Ext.9) the fard beyan and three inquest reports (Exts. 8, 8/1 and 8/2). 18. The story as narrated by the P.W. 1, the informant, in the fard beyan is that in between 21.03.1990-22.03.1990 at village Jambad Santhali Tola, P.S. Kotalpokhar, District-Sahibganj, the informant Mati Soren alongwith the deceased persons and other members of the family was sleeping in the house. 8, 8/1 and 8/2). 18. The story as narrated by the P.W. 1, the informant, in the fard beyan is that in between 21.03.1990-22.03.1990 at village Jambad Santhali Tola, P.S. Kotalpokhar, District-Sahibganj, the informant Mati Soren alongwith the deceased persons and other members of the family was sleeping in the house. At about 2:00 a.m., the dacoits armed with pistol and torch after scaling came into the courtyard, they entered into the rooms and began to loot the articles. The dacoits also looted the household articles. They also snatched the silver chain, gold ring, payal, Nakchhod, etc. The dacoits after entering into the house and before killing the deceased persons, led the deceased persons into a room and committed murder and after looting the household articles, they fled away. The informant raised alarm and the villagers arrived and she narrated the incident. The informant alleged that the dacoits had torch and in its light, she identified them. 19. It appears from the impugned judgment that the learned trial court since has considered the testimony of P.W. 1 as would appear from the finding recorded at paragraph-7 of the impugned judgment, therefore, this Court requires to examine the testimony of P.W. 1, the informant. 20. It appears that the P.W. 1 has identified original appellant no.2, namely, Ramrai Hembrum; original appellant no.5, namely, Kewta Hembram, now deceased. She has stated to have identified original appellant no.6, namely, Roshan Hembram, now deceased, as would appear from the deposition so made at paragraph-1 of her testimony. It further appears from the deposition made by her in cross-examination that she had identified Ramrai Hembrum, original appellant no.5. 21. The undisputed fact in this case is that present appellants have not been put to TIP and even the day when the deposition was being recorded before the trial court they were not present in the court and as such, not been identified by the P.W. 1. The learned trial court after considering the testimony of P.W. 1 who claim to have identified these appellants, has found the charges proved against the appellants beyond all shadow of doubt and convicted these appellants for commission of offence under Section 396 of I.P.C. 22. The learned trial court after considering the testimony of P.W. 1 who claim to have identified these appellants, has found the charges proved against the appellants beyond all shadow of doubt and convicted these appellants for commission of offence under Section 396 of I.P.C. 22. The issue which has been raised on behalf of the appellants is that due to non-identification of these appellants either in the TIP or in the dock in course of trial by the P.W. 1 and merely on the basis of her testimony claiming to have identified the appellants, cannot be said to be a cogent evidence to prove the culpability against these appellants. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Noorahammad vs. State of Karnataka, (2016) 3 SCC 325 . Paragraph-24 of the said judgment reads as under: “24. In the instant case, TIP of the appellant-accused should have been carried out at the instance of the investigating officer. The High Court, in this regard, has erred in appreciating the evidence on record in the light of the facts and circumstances of the present case. From the material on record, it is sufficiently clear that the incident occurred in the night around 3.00 a.m., at a place where there was no proper light. From the material on record it is not clear whether the source of light in the form of torches and jeep flash light was sufficient to enable the forest officers to see the appellant-accused for the purpose of their identification in later stage of the case. No doubt, law with regard to the importance of TIP is well settled that identification in court is a substantive piece of evidence and TIP simply corroborates the same.” 23. Learned Spl. PP is fair enough to submit that in absence of any cogent evidence, there cannot be any conviction. He has also not disputed the fact that these appellants have not been identified in the TIP and even not identified in the dock in course of trial. 24. This Court, on consideration of the aforesaid undisputed fact, comes to the finding recorded at paragraph-7 of the impugned judgment wherefrom it is evident that the learned trial court has found the culpability of these appellants on the basis of the testimony of P.W. 1 who has claimed to have identified the appellants. 24. This Court, on consideration of the aforesaid undisputed fact, comes to the finding recorded at paragraph-7 of the impugned judgment wherefrom it is evident that the learned trial court has found the culpability of these appellants on the basis of the testimony of P.W. 1 who has claimed to have identified the appellants. Reference of paragraph-7 requires to made herein, which reads as under: “7. Now let us consider as to whether these accused persons are the members of the gang who committed dacoity in the house of the informant and in course of dacoity committed murder of her husband and two sons. In this case the only witness is P.W. 1 Mati Soren, who has stated that on the alleged date and time she alongwith the deceased persons and P.W. 3 were in the house and the dacoits came and they began to loot the ornaments and other house hold articles and in course of committing dacoity the dacoits killed three male members in the family. P.W. 1 has claimed to have identified these dacoits who were flashing their torch light and searching and looting the articles. P.W. 3 has also stated that at the time of committing dacoity the dacoits were flashing torch light.” 25. The position of law is well settled so far as the criminal trial is concerned that the charge is to be proved beyond all shadow of doubt and it is onus upon the prosecution to prove the same. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Rang Bahadur Singh and Ors. vs. State of U.P., (2000) 3 SCC 454 . Paragraph-22 of the said judgment reads as under: “22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.” In Sheila Sebastian vs. R. Jawaharaj and Anr., (2018) 7 SCC 581 , wherein at paragraph-28 it has been laid down which reads as under: “28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.” 26. In the instant case, as has been observed from the finding recorded by the learned trial court that the P.W. 1 claims to have identified these appellants, the same, according to the considered view of this Court, cannot be said to be an evidence unless the identification is fully proved and merely on such claim being made by any witness, it cannot be said that the charge of culpability is said to be proved. 27. This Court, therefore, is of the view that the learned trial court since has based his finding only on the claim of P.W. 1 to have identified the appellants, suffers from material illegality. 28. 27. This Court, therefore, is of the view that the learned trial court since has based his finding only on the claim of P.W. 1 to have identified the appellants, suffers from material illegality. 28. In view thereof, the impugned judgment cannot be said to be based upon the correct legal proposition since merely on the basis of the claim of P.W. 1, the judgment of conviction has been passed, as such, the instant appeal deserves to be allowed. 29. Accordingly, the instant appeal stands allowed. 30. In consequence thereof, the Judgment of conviction and Order of sentence dated 16th January, 1995, passed by learned Sessions Judge, Sahebganj, in Sessions Trial No. 319 of 1991, is hereby quashed and set aside as far as these appellants are concerned. 31. The appellants are acquitted and discharged from criminal liability. 32. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.