JUDGMENT : SANJAY PRASAD, J. 1. This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 17.4.2004 and sentence dated 22.04.2004, passed by Sri Rai Satish Bahadur, learned Addl. Sessions Judge, Fast Track Court No. II, Dhanbad in Sessions Trial No. 376 of 1996, by which the appellant has been convicted for the offence under Section 395 I.P.C. and sentenced to undergo R.I. for five (05) years and seven (07) months and to pay a fine of Rs.2,000/-, although the Court below has acquitted other persons namely, Lalan Rai, Rajesh Rajak, Naresh Kumar Gupta for committing offence under Section 395 and 412 of the I.P.C. 2. The prosecution case, as alleged in the fardbayan of the informant Sri Om Prakash Kesari, recorded by the Inspector Das, the Officer-in-Charge of Jharia P.S. on 10.1.1996 at 23 hours, in brief, is that on 10.01.1996 at 20.45 hours while the informant was doing his work as an advocate at his office in his residence then in the meantime the informant opened the door on the sound of call that they have to get the bail of his brother and then three other persons also entered one by one. On asking they said that the case is under Section 307 I.P.C., they suddenly shut the door from inside and one of them took out revolver from his pocket. The accused person took out dagger, one took out bomb and another took out a revolver and surrounded the informant. They brought the informant at the door of the drawing room. A wheatish complexioned accused with revolver demanded Rs.2,00,000/- (two lac) and put revolver on his neck. Hearing hullah, the wife of the informant namely Gayatri Devi began to look inside the room, then one miscreant put dagger on her neck and threatened her to remain silent. Thereafter, miscreants brought them inside a room, and they confined the informant and his son Kunal and daughter Sweta and Anshu in the room and one of the miscreants began to watch them. Rest four miscreants asked the wife of the informant to move with them and the miscreants began to search the rooms of upper floor and ground floor. Thereafter, miscreants brought them inside a room, and they confined the informant and his son Kunal and daughter Sweta and Anshu in the room and one of the miscreants began to watch them. Rest four miscreants asked the wife of the informant to move with them and the miscreants began to search the rooms of upper floor and ground floor. The miscreants got opened Godrej Almirah in the upper floor and took out a brass jewellery box containing jewellery and also looted a Funai V.C.P, the Philips two in one, two shawls, Sari, salwar suits etc. from the Almirah on the ground floor. A red colour V.I.P. suitcase, a Khakhi colour big aristocrat brief-case, a leather suit-case and a steel box were also taken away in which the miscreants kept the other looted articles. 3. Heard Mr. Rajesh Kumar, learned counsel for the appellant and Santosh Kumar Shukla, learned A.P.P. for the State. 4. It is submitted by learned counsel for the appellant that the impugned judgment of conviction and sentence are illegal, arbitrary and not sustainable. It is submitted that the learned Court below has committed an illegality by convicting the appellant for the offence under Section 395 of the I.P.C. It is submitted that the appellant is not named in the F.I.R. and he himself surrendered on 06.4.1996 when he learnt about his implication in this case on his own. It is further submitted that the co-accused persons, from whose house recovery of several articles were made, were acquitted by the learned Court below, whereas the appellant has been convicted merely on the identification of P.W. 4 Kunal Prakash Keshri, i.e. the son of the informant. It is further submitted that the even P.W. 2, namely Om Prakash Keshri, i.e. father of the P.W.4 Kunal Prakash Keshri and P.W.3, namely Gayatri Devi, i.e. mother of the said P.W.4 had not identified the appellant and had identified only co-accused, Kasim and Shahid, whereas this appellant has not been named by both of them. It is submitted that the evidence of P.W.4 is not reliable in view of the fact that he was 14 years of age and he can be tutored a witness also. It is submitted that the evidence of P.W.4 is not reliable in view of the fact that he was 14 years of age and he can be tutored a witness also. It is submitted that the appellant was exposed to P.W.4, when he was produced before the Court of learned C.J.M., Dhanbad on 17.4.1996 and thereafter the T.I. Parade was conducted on 18.4.1996 and thus, it is evident that the appellant had been exposed to the witnesses and the I.O. of this case, in collusion with the informant and witnesses got the appellant exposed to the witnesses before the T.I. Parade and as such finding of the Court below is not proper. It is further submitted that even P.W. 13, i.e. the I.O. of this case had admitted in his evidence at Paragraph 32 that he learnt about the surrender of the appellant on 09.4.1996 and thereafter, he got the T.I. Parade done on 18.04.1996. It is submitted that even suggestion was put to the P.W.13, i.e. the I.O. that he had the appellant exposed to the witnesses in the Court of the learned C.J.M., Dhanbad at the time of production of the appellant on 17.4.1996, but he has shown ignorance, which cannot be believed. It is further submitted that there are several inconsistencies and irregularities in the prosecution case. It is further submitted that the appellant has got no criminal antecedent. 5. Learned counsel for the appellant has placed reliance on judgments in support of his submission regarding delay in conducting the T.I. Parade and placed reliance in the case of Md. Sajjad @ Raju @ Salim Vs. State of West Bengal passed in Criminal Appeal No. 1953 of 2010 on 06.01.2017. 6. Learned counsel has further relied upon the judgment reported in the case of Girish Sen Nayar & Ors. Vs. The State of Kerala, (2023) 1 SCC 180 and submitted that in the above case also the accused was exposed to the witnesses before the T.I. Parade and the Apex Court has held that such exposure would lead to mere completing formality in holding T.I. Parade and on that ground the conviction was set aside, hence this Criminal Appeal may be allowed. 7. 7. On the other hand, learned A.P.P. has opposed the submission and has submitted that the impugned judgment of conviction and sentence passed by the learned Court below are fit and proper and no interference from this Court is required. It is also submitted that although the appellant was not named in the F.I.R., but during investigation his complicity was found by the police. It is submitted that P.W. 4 Kunal Prakash Keshri has identified the appellant. It is further submitted that P.W. 9-Mr. Satya Prakash Shukla, learned Judicial Magistrate had also corroborated the evidence of P.W. 4. It is further submitted that the P.W.4 is also an eye witness of the occurrence and he had tried to save his mother and father at the time of occurrence. It is submitted that all the prosecution witnesses have fully supported the prosecution case regarding the offence of dacoity committed in the house of the informant and several articles, such as jewellery, V.C.P., Phillips Two-in-one, two shawls, Sari, Salwar, suits, leather suit case and steel box were looted from the house of the informant. It is further submitted that P.W.13, who is the I.O. of the case, has also supported and corroborated the evidence of the informant and P.W.4.-Kunal Prakash Keshri. It is submitted that P.W. 1 is the seizure list witness who has proved the seizure of articles from the possession of the miscreants. It is submitted that co-accused Md. Shahid and Md. Parvej Alam were arrested by the I.O. and their confessional statements were also recorded and they accepted about the occurrence of committing dacoity in the house of the informant. It is further submitted that though the informant had not identified the appellant he had identified other two co-accused, namely Md. Sahid and Parvej. It is submitted that P.W.4 has clearly stated that the appellant was looting the articles and hence the learned Court below has committed no illegality by convicting the appellant for the offence under Section 395 of the I.P.C. and hence this Criminal Appeal may be dismissed. 8. Perused the Lower Court record of this case and considered the submission of both sides. 9. 8. Perused the Lower Court record of this case and considered the submission of both sides. 9. It transpires that informant Om Prakash Keshri has lodged the F.I.R. on 10.01.1996 for committing dacoity in his house and for looting several articles, like jewellery of silver and gold, shawl, V.C.P., Brief Case, several clothes, F.D.R. by five unknown miscreants from the house on 10.01.1996 itself. 10. It transpires that the police, after conducting investigation, had submitted chargesheet against seven persons, namely Md. Sahid Ansari, Md. Nasiruddin, Md. Naiyar (i.e. the appellant), Phul Badan @ Bideshi Ram, Budhdeo Prasad, Madan Yadav and one other person for the offence under Section 395/412 of the I.P.C. on 18.6.1996. 11. After supplying the police papers to the appellant and other accused persons the case was committed to the Court of Sessions. 12. However, charges were framed against the appellant and eight others by Shri R.N.R. Mahto, Ist Addl. Sessions Judge, Dhanbad, against co-accused Md. Sahid Ansari, Md. Parvej Alam, Md. Naiyar Shah (i.e. the appellant), Md. Kasim, Phul-Badan, Budhdeo Prasad, Madan Yadav, Lalan Rai, Rajdeo Oraon @ Rajak and Naresh Kumar Gupta on 20.11.1996 for the offence under Section 395/412 of the I.P.C. and to which they pleaded not guilty and claimed to be tried. 13. During trial the prosecution got examined Thirteen (13) witnesses, who are as follows: (i) P.W. 1 is Harish Kumar Joshi, (ii) P.W.2 is Om Prakash Kesari, i.e. the informant, (iii) P.W. 3 is Gyatri Devi, wife of the informant, (iv) P.W. 4 is Kunal Prakash, son of the informant, (v) P.W. 5 is Ashok Kumar Singh, Judicial Magistrate, (vi) P.W. 6 is Rabindra Nath Tripathi, Judicial Magistrate (vii) P.W. 7 is Kaushal Kishore Singh, (viii) P.W. 8 is Promod Kumar Sah, (ix) P.W. 9 is Satya Prakash Shukla, Judicial Magistrate (x) P.W. 10 is Ram Khelawan Paswan, (xi) P.W. 11 is Dipankar Panda, C.O., Jharia Block, (xii) P.W.12 is Maheshari Ram, Executive Magistrate (xiii) P.W. 13 is Alok Kumar, i.e. the Investigating Officer 14. In support of its case, the prosecution got following documents marked as the exhibits, which are as follows: (i) Ext.1 is the seizure list, (ii) Ext. 2 is the Fardbayan, (iii) Ext. 3 is the list of looted articles, (iv) Ext. In support of its case, the prosecution got following documents marked as the exhibits, which are as follows: (i) Ext.1 is the seizure list, (ii) Ext. 2 is the Fardbayan, (iii) Ext. 3 is the list of looted articles, (iv) Ext. 4 is the T.I.P. chart dated 09.4.1996, (iv) Ext.4/1 is the T.I.P. chart dated 14.05.1996, (v) Ext.4/2 is the T.I.P. chart dated 18.04.1996, (vi) Ext.5 is the Seizure list, (vii) Ext.4/3 is the T.I.P. chart of the articles dated 09.04.1996, (viii) Ext.6 is the Endorsement made on the seizure list dated 20.03.1996, (ix) Ext. 7 is the Formal F.I.R. 15. In support its case, the prosecution has got following materials marked as Material Exhibits, which are as follows:- (i) Material Ext.I is V.I.P. suitcase, (ii) Material Ext.II is V.C.P. (Funai), (iii) Material Ext.III is Salwar Suit set, (iv) Material Ext. IV is Woolen Shawl and (v) Material Ext. V is a Towel. 16. Thereafter the appellant and others were examined under Section 313 Cr.P.C. on 21.07.1999 and to which they denied the circumstances put forth before them. 17. In support of its case, the Defence has got examined only one witness, namely Abdul Manan, who is an Advocate’s Clerk. 18. It also transpires that during pendency of trial some of the accused persons, i.e. Co-accused Ful Badan Rajwar @ Bideshi Ram, Madan Yadav and Budhdeo Prasad were declared absconder by the learned Court below. 19. It also transpires that trial of co-accused Md. Kasim, Md. Sahid, Md. Parwej Alam was separated from the other co-accused on 22.6.2002 as they had pleaded guilty and had confessed their guilt. 20. Thereafter, the learned Court below vide the impugned judgment of conviction and sentence, convicted the appellant for the offence under Section 395 of the I.P.C., but acquitted other three accused persons namely Naresh Kumar Gupta, Lalan Rai and Rajesh Rajak. Hence this Criminal Appeal has been filed. 21. P.W.1 is Harish Kumar Joshi, who is an Advocate and a seizure list witness and has proved his signature. He is a formal witness. Even during his cross-examination he stated nothing against the appellant. 22. P.W.2, who is the informant of this case and during evidence he supported the prosecution case. Hence this Criminal Appeal has been filed. 21. P.W.1 is Harish Kumar Joshi, who is an Advocate and a seizure list witness and has proved his signature. He is a formal witness. Even during his cross-examination he stated nothing against the appellant. 22. P.W.2, who is the informant of this case and during evidence he supported the prosecution case. He stated that while he was sitting in his chamber, two miscreants came with file and sat at the table and thereafter some other youth also entered into his house and surrounded him and they closed the door and one of the miscreants pointed a pistol at his neck and demanded two lakh cash and when he protested, then he was assaulted by the butt of the pistol on his head, due to which he sustained injury. On hearing alarm his wife came from drawing room and she was stopped at knife point and the miscreants have taken his son and daughter to another room and they had committed loot of his properties. He also stated that after the dacoits left the place, his son came there after 15 minutes and thereafter, they informed the matter to the police. He has proved the written application marked as Ext.2. He also stated that looted articles, i.e. the V.I.P., V.C.P., one Salwar suit, one lady’s shawl were recovered, which were identified by him during the T.I. Parade. During T.I. Parade, he had identified co-accused Sahid and Kasim. He has further proved the material exhibits, i.e. the Aristocrat Suit-case and other articles marked as Material Ext. I to Material Ext. V. Although several questions were asked, but so far as this appellant is concerned, he has not named him during his evidence before the Court below and had not identified him during the trial. During cross-examination, on being pointed out that the accused persons were shown earlier to the informant and other witnesses before T.I.P, he denied the suggestion. He has emphasized that he had gone for the first time to jail for T.I. Parade in presence of the Judicial Magistrate and he had seen the accused for the first time. Thus, so far as the evidence of P.W. 2 is concerned, he had not identified the appellant during T.I. Parade and even during the trial. 23. He has emphasized that he had gone for the first time to jail for T.I. Parade in presence of the Judicial Magistrate and he had seen the accused for the first time. Thus, so far as the evidence of P.W. 2 is concerned, he had not identified the appellant during T.I. Parade and even during the trial. 23. P.W. 3 is Gayatri Devi, i.e. wife of the informant and she has also supported the prosecution case regarding commission of dacoity in her house. She had also identified two co-accused, Md. Sahid and Parwej during T.I.P. She had also supported the recovery of articles from the miscreants, who have been declared absconder by the Court below, namely Phul Badan Rajwar @ Bidesi. Thus, from scrutinizing the evidence of P.W. 3, it is evident that she had not identified this appellant during the T.I. Parade & during the trial. 24. P.W. 4 is Kunal Prakash Keshri, who is the son of the informant, who, during evidence, supported the prosecution case for commission of dacoity in his house. However, He has claimed to have identified the appellant in T.I.P. and he had also identified the appellant in the Court and the appellant was identified for looting of articles. During cross-examination, on being confronted regarding prior identification of the appellant in the Court of learned C.J.M. on 17.4.1996, he stated in Para 8 of his evidence that he had not gone to the Court of C.J.M. on 17.4.1996 and stated that he had identified the appellant during T.I. Parade. 25. P.W. 5 is Ashok Kumar Singh, the Judicial Magistrate, who had conducted the T.I.P. dated 9.4.1996, which is marked as Ext. 4 in respect of co-accused Md. Sahid only. 26. P.W. 6 is Ravindra Nath Tripathy, who is another Judicial Magistrate, who had conducted T.I.P. dated 14.05.1996, marked as Ext. 4/1 with regard to accused Md. Kasim only. 27. P.W.7 is Kaushal Kishore Singh, who is a formal witness and has merely stated that he learnt about the occurrence after arrival of the police and he had gone to the house of the informant. During his cross-examination, he also had not named the appellant for any overt act. 28. P.W. 8 is Pramod Kumar Sao, who has been tendered by the prosecution and his evidence is not relevant. 29. During his cross-examination, he also had not named the appellant for any overt act. 28. P.W. 8 is Pramod Kumar Sao, who has been tendered by the prosecution and his evidence is not relevant. 29. P.W. 9 is Satya Prakash Shukla, learned Judicial Magistrate, who conducted T.I.P. on 18.04.1996 with regard to the co-accused Md. Sahid, Md. Parwej Alam and the appellant Md. Naiyar Shah and the T.I.P. chart was marked as Ext. 4/2. 30. P.W. 10 is Ram Khelawan Paswan, who is one of the I.O. of this case and has supported the prosecution case on the point of occurrence that he had conducted raid in the house of co-accused Ful Badan Rajwar @ Bideshi Ram and Budhdeo Prasad, Madan Yadav and Rakesh Rajak respectively and had recovered cash, silver coin, ladies watch, shawl, towel, red briefcase and proved the seizure of the said articles prepared by A.S.I. R.K. Singh, which was marked as Ext. 5. During cross-examination, he stated that the looted article were recovered in connection with investigation of Jharia P.S. Case No. 73 of 1996 from the house of co-accused Ful Badan, however, in the seizure list, it has not been mentioned as to which articles were related to this case. Thus, the evidence of P.W. 10 does not show recovery of the articles from the possessions of the appellant. 31. P.W. 11 is Dipankar Panda, i.e. the Anchal Adhikari, who has conducted T.I. Parade of the articles and has proved the T.I.P. chart marked Ext. 4/3. 32. P.W. 12 is the Executive Magistrate, Dhanbad, who has stated regarding recovery of article- V.C.P., which was recovered from the possession of co-accused Naresh Kumar Gupta, marked as Ext. 6. Thus, P.W. 12 is mainly on the point of recovery of the article from the possession of co-accused Naresh Kumar Gupta, who has been acquitted by the learned Court below. 33. P.W.13 is Alok Kumar, who is the main I.O. of this case who has supported and corroborated the case on the point of occurrence and also on the point of identification of the accused persons including the appellant and he had given the details of the place of occurrence and the articles scattered near the place of occurrence. He had also proved the seizure list marked as Ext. 1. He has further stated that on the confessional statement of Co-accused Subhash Kr. Sahni, Md. Sahid Ansari, Md. He had also proved the seizure list marked as Ext. 1. He has further stated that on the confessional statement of Co-accused Subhash Kr. Sahni, Md. Sahid Ansari, Md. Parvej Alam, who were arrested in connection with Jharia P.S. Case No. 73 of 1996, the facts of this case were revealed and the aforesaid accused person had also accepted of being involved in this case. He also stated that he conducted raid in the house of Ful Badan @ Bidesi Ram while conducting the investigation in connection with Jharia P.S. Case No. 73 of 1996 and had recovered some looted articles from the house of said Ful Badan @ Bideshi Ram which included some looted article of this case and he has proved the seizure list which was marked as Ext. 5. He also claimed to have arrested the accused Lalan Rai and accused Naresh Kumar Gupta in injured condition. 34. He further stated that on 09.4.1996, he received a copy of the T.I.P. chart of Co-accused Subhash Kumar Sahni, Md. Sahid Ansari, and Parvej Alam, who were taken on remand, it was found from the said chart that Md. Sahid Ansari has been identified for keeping revolver at the head of the informant. Thereafter, he filed application before the learned C.J.M. for conducting T.I.P. of the suspects and seized articles for identification by the witnesses. He arrested Md. Kasim on 03.5.1996 and taken his statement and got conducted T.I.P. of other miscreants and except Subhash Kumar Sahni other accused persons were identified. He further stated that Md. Kasim was an accused in Jharia P.S. Case No. 43/95, under Section 376 of the I.P.C. and he was also accused in Jharia P.S. Case No. 520/93 for offences under Section 457, 380 and 411/120 B of the I.P.C. He further stated that co-accused Parvez Alam is also accused in connection with Sindri P.S. Case 04 of 1992, Jorapokhar P.S. Case No. 44/92, 49/92, 89/92, 437/93, 322/94, 107/95, Jharia P.S. Case No. 73/96 and 74/96. He further stated that Co-accused Md. Sahid Ansari is also accused in Jharia P.S. Case 25/94, 73/94 and 74/96 respectively. Thereafter, he had submitted chargesheet against the accused persons under Section 395 and 412 of the I.P.C. He had further proved the formal F.I.R. marked as Ext. 7. He further stated that Co-accused Md. Sahid Ansari is also accused in Jharia P.S. Case 25/94, 73/94 and 74/96 respectively. Thereafter, he had submitted chargesheet against the accused persons under Section 395 and 412 of the I.P.C. He had further proved the formal F.I.R. marked as Ext. 7. He further identified the recovered articles from the house of Co-accused Bideshi Ram @ Ful Badan, marked as Material Exhibit I, Material Ext. III, Material Ext. IV and Material Exhibit V respectively. 35. During his Cross-Examination he stated that he started investigation of this case on 10.01.1996 itself and had recorded the statement of the informant and his wife and got prepared the injury report of the informant marked as Ext. C. He further could not explain as to when he had sent the Fardbayan of the informant before the court of the learned C.J.M. He further stated in Para 27 of this cross-examination that the witness Kunal Prakash Kesri, i.e. P.W. 4 had stated during his presence before him that the miscreants had assaulted his father by butt of the pistol, however, P.W.4 had not stated before him that on hearing hullah, when his mother came to drawing room, then he along with his sisters followed her. He further stated that on the basis of activity and involvement, he had arrested Co-accused Subhash Sahni, Md. Sahid, Md. Kasim, Md. Parvej Alam, Md. Naseem, Md. Kallu @ Chota Kallu, Md. Maqsood Ansari and others respectively on the basis of suspicion as he was acquainted with them earlier and he had seen their earlier criminal antecedents, which is mentioned in Para 194 of the case diary. However, he has stated there is nothing against the present appellant, i.e. Naiyar, i.e. the appellant. During further cross-examination, he admitted in Para 32 that he learnt about surrender of Naiyar Sah, i.e. the appellant on 09.4.1996 that he had surrendered on 06.4.1996 and he was in jail, but on that date he had not conducted T.I. Parade. He has shown ignorance to have not seen the order sheet of the C.J.M. Court that the date was fixed for appearance of miscreant Md. Sahid, Md. Parvez Alam and Md. Naiyar Sah on 17.4.1996. He has shown ignorance to have not seen the order sheet of the C.J.M. Court that the date was fixed for appearance of miscreant Md. Sahid, Md. Parvez Alam and Md. Naiyar Sah on 17.4.1996. He had denied the suggestion that Gayatri Devi and Kunal, i.e. P.W. 3 and P.W.4 had arrived in the Court on 17.4.1996 and on that date he had got them seen the three miscreants while they were being produced before the Court of the learned C.J.M. from the jail. However, he had admitted and stated that he had issued a notice on 17.04.1996 in the name of Gayatri Devi i.e. P.W.3 and Kunal, i.e. P.W.4 and also Sweta Kumari and Anshu Kumari for arriving in the Court for T.I.P. on 18.4.1996. This witness has been cross examined on behalf of the Co-accused persons Naresh Kumar Gupta and Lalan Rai, but the same is not discussed because the same is not relevant because they have been acquitted by the learned Court below. He had also been questioned on behalf of accused Bideshi Ram and Rajesh Rajak. 36. Thus, from scrutinizing the evidence of P.W. 13, it would appear that although he has shown ignorance about date fixed in the Court of C.J.M. on 17.4.1996 for the production of the accused Md. Naiyar Shah, i.e. the appellant and therefore, the assertion of the appellant stands proved that the accused persons were shown earlier on 17.4.1996 before the Court of the learned C.J.M. before conducting the T.I. Parade. 37. D.W. 1 is one Abdul Manan, Advocate’s clerk, who has proved the paper cutting of news paper (Bihar Observer) dated 20.3.1996, showing photograph of two accused, Md. Sahid and Md. Parvej Alam, whose evidence is not relevant sofar as this appellant is concerned. 38. From perusal of the T.I.P. Chart marked as Ext. 4, 4/1 respectively, it would appear that T.I.P. was conducted in the Central Jail, Dhanbad with respect to accused Md. Sahid and Md. Kasim on 9.4.1996 and 14.5.1996 respectively, but P.W. 2-Om Prakash had identified only Md. Sahid Ansari, although miscreants namely Subhash Kumar Sahni and Md. Parvej were also produced for T.I. Parade in presence of Sri Rabindra Nath Tripathi, learned J.M., 1st Class, Dhanbad. 39. Sahid and Md. Kasim on 9.4.1996 and 14.5.1996 respectively, but P.W. 2-Om Prakash had identified only Md. Sahid Ansari, although miscreants namely Subhash Kumar Sahni and Md. Parvej were also produced for T.I. Parade in presence of Sri Rabindra Nath Tripathi, learned J.M., 1st Class, Dhanbad. 39. Exhibit 4/2 is another T.I.P. Chart showing identification of by P.W. 3 and P.W. 4 of the accused persons on 18.04.1996 and it reveals that P.W. 3-Gayatri Devi had identified co-accused Parvej Alam and has wrongly identified one another person, whereas the P.W. 4-Kunal Prakash has identified Md. Sahid, Parwej Alam and appellant Md. Nayar Sah in presence of P.W.9-Sri Satya Prakash Shukla, learned J.M., 1st Class, Dhanbad. 40. Ext. 4/3 is the T.I.P. chart of the articles showing the recovery of V.C.P. and other materials on 9.4.1996, which is not relevant for the appellant. 41. Thus, it is evident that although the appellant had surrendered before the Court below on 6.4.1996 and T.I.P. of some of the Co-accused persons Md. Sahid and Md. Parvej was conducted on 09.4.1996, however, T.I.P. of the appellant was not deliberately conducted on 09.4.1996, rather it was conducted on 18.4.1996 after his production in the court of the learned C.J.M. on 17.4.1996. 42. Thus, the submission of the learned counsel for the appellant is correct to the extent that the appellant was shown to the witnesses on 17.4.1996 prior to his T.I.P. conducted on 18.4.1996. It is further evident that the T.I.P. of the appellant was conducted on 18.4.1996 though the appellant had surrendered on 06.04. 1996 and the I.O. was aware of the surrender of the appellant on 9.4.1996, thus, there is delay of nine days in conducting T.I. Parade of the appellant, particularly in view of the fact that the co-accused were produced for T.I. Parade on 09.4.1996. 43. It has been held in the case of Gireesan Nair & Ors. Vs. The State of Kerala, (2023) 1 SCC 180 , Para 31, 32 and 48 as follows:- “Para 31:- In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. (2003) 12 SCC 554 : 2004 SCC (Cri) Supp 489 and Suryamoorthi v. Govindaswamy, (1989) 3 SCC 24 : 1989 SCC (Cri) 472). Para 32:- If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP in admissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 : (2021) 1 SCC (Cri) 9 and Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104 ). Para 48:- Having considered the evidence of crucial eyewitnesses and the material indicating the conduct of the TIP, we are of the opinion that the witnesses had the opportunity of seeing the accused before the conduct of the TIP. Not only have the witnesses deposed that they had seen the suspects before the TIP, even Accused 2, at the end of the 1st TIP, had raised a grievance that the suspects were all photographed, videographed and were shown to the witnesses from the cabin of the IO (PW 84). At the end of the 2nd TIP, he had also stated that when Accused 1-19 were taken to court for the purpose of remand, and the presence of all the witnesses was arranged in the court by the police. In fact, all the accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. In fact, all the accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. We find no reason to disbelieve the truthfulness of the statement of the accused because they had raised this contention right from the beginning and have maintained it all along.” 44. In view of the discussions made and the law laid down by the Hon’ble Supreme Court in the case of Gireesan Nair & Ors. Vs. The State of Kerala, (2023) 1 SCC 180 and also in view of the discussions of the evidence, it is apparent that conducting T.I.P. of the appellant was a mere formality as the appellant has already been exposed to the witnesses one day before the T.I.P. and therefore the T.I.P. conducted on behest of the I.O. after a delay of nine days is suspicious. 45. It has been held by the Hon’ble Supreme Court in the judgment passed in the case of Md. Sajjad @ Raju @ Salim Vs. State of West Bengal in Criminal Appeal No. 1953 of 2010 on 06.01.2017 at paragraph 15 as follows:- “Para 15:- In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that none of the concerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments.” 46. It further transpires that P.W.2, namely Om Prakash Kesri and P.W.3, namely Gayatri Devi, i.e. father and mother respectively of the P.W.4-Kunal Prakash had not identified the appellant for looting the articles although they had identified some of the other accused, therefore, in the light of the judgment passed in the case of Md. Sajjad @ Raju @ Salim Vs. State of West Bengal in Criminal Appeal No. 1953 of 2010 on 06.01.2017 and Girish Sen Nayar & Ors. Vs. Sajjad @ Raju @ Salim Vs. State of West Bengal in Criminal Appeal No. 1953 of 2010 on 06.01.2017 and Girish Sen Nayar & Ors. Vs. The State of Kerala, 2023 (1) SCC 180 , this Court is of the view that it is a case of single identification and that too after showing the appellant to the witnesses in the court of C.J.M. on 17.4.1996, i.e. before the T.I. Parade was conducted on 18.4.1996 and as such this court is of the view that impugned judgment of conviction dated 17.4.2004 and sentence dated 22.04.2004 passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. 47. Thus, on the facts and in the circumstances and in view of the discussions made above and in the light of the law laid down by the Hon’ble Supreme Court, impugned judgment of conviction dated 17.4.2004 and sentence dated 22.04.2004, passed by Sri Rai Satish Bahadur, learned Addl. Sessions Judge, Fast Track Court No. II, Dhanbad in Sessions Trial No. 376 of 1996, is set aside and the appellant, Md. Naiyar Shah, is acquitted for the offence under Section 395 of the I.P.C. and is discharged from the liability of his bail bonds. 48. Thus, the Cr. Appeal (S.J.) No. 742 of 2004 is allowed. 49. Let the entire Original Lower Court Records be sent to the learned Court below at once.