Criminal Appeal (SJ) No.387 of 1998 Against the judgment and order of conviction and sentence dated 29. 08. 1998, passed by Shri Chakra Dhar Rai, Sessions Judge, Darbhanga, in Sessions Trial No. 196 of 1996. Misri Paswan, son of Ganesh Paswan, resident of Village- Chhachha, Police Station- Raiyam, District- Darbhanga. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Ajay Kumar Thakur, Advocate. Mr. Imteyaz Ahmad, Advocate. Mr. Anjani Prasad Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 412 of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case that some thieves were entered into the house of the informant by cutting sendh and unlocked the door and assaulted the inmates of the house of the informant and her husband caused fire arms injury and took away ornaments, wrist watch. 4. On the basis of Fardbeyan, F.I.R was lodged. During investigation, raid conducted and wrist watch 2 recovered put on T.I.P. which was identified and then charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. Charge was framed under Section 412 I.P.C. After charge, four witnesses were examined. P.W. 1 Anand Mohan Kumar deposed about theft of articles. He participated in T.I.P. and identified the watch in T.I.P. conducted by the B.D.O. P.W. 2 has also supported the prosecution case about dacoity and assault during dacoity and her signature on Fardbeyan. P.W. 3 B.D.O. who has conducted T.I.P. and has proved T.I. chart. P.W. 4 is constable has formally proved the seizure list in writing of Office-in-Charge of Keoti P.S. and has formally proved the case diary. In his cross-examination, he has stated that nothing was written before him and he has no knowledge about content of the said document and has stated that Ext. 4 seizure list is only photo copy which is filled up before Officer-in- Charge. 5. The trial court on considering the evidence of witnesses held that P.W. 2 has supported the prosecution case about dacoity leading of the articles including wrist watch. P.W. 1 has supported the prosecution case and 3 participated in T.I.P. and identified the wrist watch in T.I.P. and convicted the appellant under Section 412 I.P.C. 6. Learned counsel for the appellant however contends that no witness has come to depose any recovery from the possession of this appellant and formal prove of the seizure list can not be prove of recovery was from the possession of this appellant. It has further been contended that conduct of T.I.P. and T.I.P. chart has been proved by B.D.O., but wrist watch has not been produced in court as material exhibit or evidence. No person has come to depose that the watch belong to him looted in dacoity which he identified in T.I.P. So there is no identification of watch in court. Hence substantive evidence regarding the loot of the watch during dacoity and its recovery and identification is missing. Further there is delay in conducting the T.I.P. where wrist watch has been recovered on 30. 12. 1995. 7. Learned counsel for the State supported the prosecution case and finding recorded by the trial court. 8. However, I.O. in this case has not been examined and no person has come to depose that said 4 watch was recovered from the possession of the appellant. However seizure list has formally been proved by P.W. 4. However, merely proved the document by formal witnesses only to show that said person wrote the document, but content of the document is not proved unless a person come to say that recovery was made before him from the house of the accused and seizure list was prepared in this context. Hence, if the recovery of the article has not been established by any witness who was witness of seizure then mere prove the seizure list will not be evidence about recovery of the article from the house of the appellant. Further T.I.P. was conducted and T.I. chart has prepared during investigation is not substantive evidence and has only got corroboration value. However, P.W. 1 and 2 have come to prove that said watch looted in dacoity is subject of dacoity which they identified in T.I.P.But the said watch not produced in court nor identification in court, hence the substantive evidence regarding the identification of watch in court is missing and the appellant had no opportunity to cross- examine the prosecution as had no opportunity to cross- examine during T.I.P. 5 9. Hence the evidence regarding to the recovery of watch from the house of the appellant and evidence that the said watch belong to the appellant or the evidence that watch lost during dacoity was recovered from the possession of the appellant is missing and hence ingredient of Section 412 I.P.C. has not been established. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 24th August, 2011. NAFR/m.p. (Gopal Prasad, J.)