The main legal point established in the judgment is the significance of a fair and credible Test Identification Parade (TIP) process in establishing the credibility of witness identification and the potential impact of procedural irregularities on the overall evidence.

JUDGMENT

Mir Alfaz Ali, J. - Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. Azad Ahmed, learned counsel for the appellant and Mr. T.K. Misra, learned Addl. P.P., Assam for the respondents.

2. This appeal is directed against the judgment and order dated 26.04.2012 passed by the learned Addl. Sessions Judge (FTC), Karimganj, in Sessions Case No. 12/2011. By the said judgment, the learned Sessions Judge convicted the appellant under Section 395 IPC and sentenced him to imprisonment for five years and fine of Rs. 2,000/- with default stipulation.

3. As per prosecution case, at about 1.30 AM, in the intervening night of 11.12.2007 and 12.12.2007 some dacoits entered into the house of the informant Rathindra Malakar and robbed away Rs. 37,500/- and other valuable materials on gun points. The dacoits also threatened to kill the son of the informant, unless he pays Rs. 1,00,000/-, which he had allegedly withdrawn from Bank. Rathindra Malakar lodged an FIR, on the basis of the FIR, police registered Patharkandi P.S. Case No. 208/2007 under Section 395 IPC. During investigation, four accused persons were arrested and a Test Identification Parade (TIP) was conducted in respect of two of the accused, wherein the present appellant was identified by one of the witnesses. After completion of the investigation, charge sheet was laid against six persons including the present appellant under Section 395 IPC. Out of the six accused persons, who were charge sheeted, the accused Badul Hoque died during pendency of the trial and another accused Suboddin absconded and eventually the four accused persons including the present appellant stood trial for the offence of dacoity. Learned Sessions Judge framed charge against the four accused persons including the present appellant under Section 395 IPC, to which they pleaded not guilty.

4. In order to bring home the charge, prosecution examined six witnesses. On appreciation of the evidence, learned Sessions Judge convicted the present appellant under Section 395 IPC and awarded the sentence as indicated above and rest of the co-accused were acquitted.

5. Learned Sr. Counsel, Mr. Choudhury for the appellant, submits, that there was no evidence, except the testimony of the PW-5, who stated to have identified the present appellant in the TIP. The contention of the learned counsel is that the TIP was not properly done and as such, no conviction could be based on the basis of sole testimony of the PW-5 and identification in the TIP. Learned counsel further contends that no evidence was brought on record to show that there were five or more persons so as to constitute an offence of dacoity as defined under Section 391 IPC.

6. Learned Addl. P.P., supporting the impugned judgment of conviction and sentence contends that the charge against the accused appellant has been proved beyond reasonable doubt and as such, the impugned judgment calls for no interference.

7. The first witness examined by the prosecution was one Promode Malakar, who testified that on the night of occurrence, he was in the house of the informant. He further deposed that at the midnight, some people entered into the house and threatened them not to make any hue & cry. The dacoits also put quilt on their faces and after the dacoits have left, he came to know from the informant (PW-4), that dacoits have taken Rs. 37,500/- and other valuable articles including ornaments. During cross examination, it was elicited that there was darkness in the house. He also stated that there was no partition in the house and all of them were in the same room.

8. Pw-2 was one Jhunu Makalar, who happens to be the wife of the informant. According to her, at about 1 to 1.30 AM at night, some dacoits being armed with weapons entered into their house and robbed Rs. 37,500/- and other valuable articles. She also stated that there was a lantern in their house, but she could not recognize any of the dacoits. She further stated that her husband told that he