B.K. Behera, J.
1. Two persons, namely, the petitioner and the co-accused Trilochan Chand, who is reported to dead, were convicted by the trial court under section 395 of the Indian Penal Code (for short, the 'Code') and sentenced thereunder to undergo rigorons imprisonment for a period of five years. The order of conviction passed against the petitioner has been maintained by the appellate court. Seven accused persons stood trial, five of them including the petitioner being charged under section 395 of the Code, one under section 212 and another under section 201 of the Code. Five of the accused persons were acquitted of the charges. It was alleged that on the 23rd December, 1978 at about 1.00 A. M., the petitioner and the other co-accused persons who stood charged for commission of dacoity, being armed with deadly weapons, attacked P. W. 15 and others on their way from Bhubaneswar to Rayagada and after as saulting them, removed cash and other articles. At the trial, the prosecution examined twenty-one witnesses to bring home the charges. It is not necessary to catalogue the entire evidence as the order of conviction of the petitioner has been passed solely on the basis of the evidence of identification of the petitioner by P. W. 15, the driver of one of the two trucks.
2. Mr. S. K. Padhi, the learned counsel for the petitioner, has submitted that as three of the five named persons were acquitted of the charge of dacoity, no order of conviction could legally be passed under section 395 of the Code against the petitioner and the prosecution evidence, if accepted, could establish a charge of robbery. He has contended that as the petitioner was not known to P. W. 15 from before and no test identification parade had been held, the evidence of identification of P. W. 15 sixteen months after the occurrence could not safely be accepted. In this connection, my attention has been invited to the view taken by this court, in 56 (1983) C. L. T. 60 Ramesh Chandra Mohapatra and three others vs. State of Orissa.
3. As contended by the learned counsel for the petitioner and fairly submitted by Mr. Ray, the learned Government Advocate, in view of what has been held by this Court in the aforesaid decision and in 53 (1982) C. L. T, 121 Kbagendra Gahan vs. The State, referring to and relying on the principles laid down by the Supreme Court in AIR 1956 Supreme Court 441 Ram Sankara Singh and Ors. v. State of Uttar Pradesh and AIR 1973 Supreme Court 780 Ram Prakash v. The State of Himachal Pradesh, when five named persons stood trial being charged of dacoity and the others were acquitted, the petitioner and another co-accused persons could not legally be convicted for an offence of dacoity.
4. It is next to be seen as to whether on the basis of the sole evidence of P. W. 15, the petitioner could be convicted for commission of robbery. P. W. 15 had not claimed to have known the petitioner at any time prior to the occurrence. The ocurrence had taken place during the night time, although it was said to be a moonlit night and the lights of the trucks were on. There was no material that at any stage prior to the identification of the petitioner in the court, P. W. 15 had given the identifying features of the petitioner. In the circumstances in which P. W. 15 had been placed, be must have bee a in a state of daze as he was himself one of the victims. The trial and appellate courts were of the view that the evidence of identification was not to be thrown out in every case merely because no test identification parade had been conducted. In the instant case, however, apart from the fact that the petitioner had not been known to P. W. 15 from before, P. W. 15 had not given the identifying features of the petitioner and none of the other occupants of the trucks had identified the petitioner to be one of the culprits. Identification in the court of the petitioner by P. W. 15 had been made in April, 1980, while the occurrence had taken place in December, 1978. In (1983) 1 S. C. C. 143 : 1983 Criminal Appeals Reporter 1 (SC) 25 : 1983 S.C.C. (Cri) 139 Mohd. Abdul Hafeez vs. State of Andhra Pradesh, the evidence of identification was not accepted by the Supreme Court as the name and description of the appellant had not been given in the first information report, no test identification parade had been held and the appellant had been identified in the court more than four months after the occurrence. It has been held by the Supreme Court in AIR 1980 Supreme Court 1382 State (Delhi Admn.) v. V. C. Sukla that identification evidence without a test identification parade is valueless when then accused is not known to the identifying witness from before.
5. For the aforesaid reasons, it would not be reasonable and proper, in my view, to accept the evidence of identification of the petitioner by P. W. 15 and record a conviction thereon. The order of conviction, being illegal and improper, cannot be allowed to stand.
6. I would allow the revision, set aside the order of conviction and sentence passed against the petitioner and direct that he be set at liberty forthwith.