GOPAL PRASAD, J.:–Heard learned counsel for the appellant and learned counsel for the State.

2. The appellant has been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.5,000/- and in default to serve further simple imprisonment for three months.

3. The prosecution case as alleged in the First Information Report by the informant Raghu Ram P.W. 2 is that on 30.07.2008 at about 1:30 A.M. he loaded the cattle on Truck No. UP-65H-8582 from Chausa (U.P.) and at 3:00 P.M. truck proceed. Other businessmen boarded in truck and truck driver Vijay Yadav was driving the truck. At about 12:45 A.M. truck reached at N.H.-98 Lamari Parsawan More, where both back tyres were punctured and truck was stopped. In the meantime, six persons came and surrounded the truck including the informant and the accused persons boarded the truck. Two miscreants were armed with pistol and two were armed with iron rod, one had a chhura (knife) and one miscreant had a bag. Two miscreants were wearing lungi and shirt and other four were wearing shirt and pants. Dacoits looted away total Rs.36,200/- from the possession of informant and his associates on the point of pistol. Informant has given the description of dacoits, who were aged about 15 to 35 years and were speaking local language. Informant and others identified the dacoits in the light of truck and in torch light and claimed to identify them. After committing dacoity, accused persons fled towards east. The First Information Report lodged against six unknown persons.

4. The police after investigation submitted charge-sheet, on the charge-sheet cognizance taken, case committed to the Court of Sessions and after framing of the charge, trial proceeded. During trial 14 witnesses were examined on behalf of the prosecution. The documentary evidence proved as Ext. 1 formal First Information Report, Ext. 2 fardbeyan.

5. The trial court after taking into consideration the evidence of the witnesses convicted the appellant on the evidence of P.Ws. 1 and 2 who identified the appellant in dock and P.W. 2 has also identified him in the Test Identification Parade.

6. Learned counsel for the appellant, however, contended that the First Information Report is registered against unknown.

7. P.W. 13 has stated in his evidence that he apprehended the appellant on 04.08.2008 and took him to the police station. He has further stated that the informant (P.W. 2) was also with him in apprehending the appellant.

8. P.W. 2 claims to have identified the appellant in the Test Identification Parade and P.W. 13 has proved T.I.P. chart which has been marked as Ext. 6 but the Magistrate who conducted the Test Identification Parade has not been examined. The T.I.P. chart suggests that the appellant has simply been identified but neither the Test Identification Parade chart nor the evidence state about the act committed by the appellant while the appellant identified.

9. Learned counsel for the appellant further submitted that the identification by P.W. 2 in Test Identification Parade without stating about the fact that what act was being committed by appellant at the time he was identified has got no significance. The production-cum-seizure list has been proved by P.W. 11 but in his cross-examination he has stated that the seizure list was not prepared before him and he only signed on the seizure list at the instance of Investigating Officer and he does not know about the seizure. The Advocate Clerk (P.W. 14) formally proved the signature of the Judicial Magistrate on the T.I. Chart. The Judicial Magistrate who conducted the Test Identification Parade has not been examined. Hence, the seizure and T.I. Chart have formally been proved which caused great prejudice to accuse as he could not get the opportunity to cross-examine either the seizure witness or the Magistrate who conducted Test Identification Parade.

10. Learned counsel for the State supported the prosecution cas

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