Criminal Appeal (SJ) No.148 of 1997
Against the judgment and order dated 13. 05. 1997 and
and order of sentence dated 14. 05. 1997, passed by
Shri Jaleshwar Ram, additional Sessions Judge, Kishanganj,
in Sessions Trial No. 209 of 1996/ Tr. No. 15 of 1996.
1. Raitu Mohammad .
2. Hakeem Mohammad.
Both sons of Fakat Mohammad.
Resident of Village- Batiapara, P.S. Islampur, District-
West Deenajpur, West Bengal.
3. Imamuddin, son of Sarwar Ali,
Resident of Village- Chhotgachh, P.S. Islampur, District-
West Deenajpur, West Bengal.
4. Pesh Mohammad, son of Kalimuddin,
Resident of Village- Jharbari, P.S. Pothia, District-
Kishanganj.
.... .... Appellants.
Versus
The State Of Bihar
.... .... Respondent.
For the Appellants : Mr. Asoka Jang Bahadur,Advocate.
Mr. Rashid Alam, Advocate.
Mr. Anis Akhtar, Advocate.
Mr. Anif Daula Siddiqui, Advocate.
For the Respondent : Mr. Sujit Kumar Singh, A.P.P.
=
PRESENT
THE HONOURABLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard learned counsel for the appellants and
learned counsel for the State.
2. The appellants have been convicted for offence
under Section 395 of the Indian Penal Code sentenced to
undergo rigorous imprisonment for seven years.
3. Learned counsel for the appellants however,
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contends that this is a case of dacoity in the night of 06.
01. 1995, while the informant along with his family
members were sleeping in the house 20-25 persons open
the tatti fence and entered into Angan and committed
dacoity. Seven persons have been named in the
Fardbeyan on the basis of which F.I.R. was lodged and
after investigation charge sheet submitted. However, only
two out of seven named in the F.I.R. were charge sheeted
and other were not sent up. Two persons Madan Mohan
and Bhobha @ Manglu showing in the column ‘not sent
up’.
4. During investigation, some suspects were
arrested and put on Test Identification Parade in which
some of them were identified by the informant.
Subsequently, charge sheet submitted.
5. However, during trial eleven witnesses were
examined as witnesses. Out of which P.W. 9 and 11 are
Judicial Magistrates who conducted Test Identification
Parade. P.W. 10 is I.O.
6. However, P.W. 9 and 11 has stated that in Test
Identification Parade, appellant no. 1 and 2 identified by
five witnesses and appellant no. 3 and 4 identified by two
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persons. However, during trial, P.W. 9 and 11 the Judicial
Magistrates who conducted Test Identification Parade has
proved that five witnesses have identified each of the
appellant nos. 1 and 2 and two witnesses have identified
appellant nos. 3 and 4 each.
7. However, witnesses 1 to 8 who are material
witnesses do not identify the accused persons in the court.
Witnesses 1 and 7 have been declared hostile by
prosecution. However, P.W. 8 the informant, though, not
declared hostile but has not identified the accused persons
in Court. Accused Gera Mian, though, named in
Fardbeyan was not identified in the Test Identification
Parade nor in the court and other accused Leda Mian
though has been identified by only one, but was given
benefit of doubt.
8. However, learned counsel for the appellants
submits that, though, appellants have not been identified in
court and hence substantive evidence are missing and
evidence of witnesses in the Test Identification Parade has
got only corroborative value and is not substantive
evidence. Conviction on the basis of Test Identification
Parade is not sustainable. However, learned lower court
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has convicted the accused on the basis of identification in
Test Identification Parade relying on decision of Hon’ble
Supreme Court reported in 1996 (4) Criminal Law Journal
page 3585. However, it is a case of train dacoity, one
culprit was arrested. The said culprit was identified during
the Test Identification Parade conducted by the Magistrate.
However, witnesses did not chosen to identify in trial due
to fear. However, at this juncture during evidence trial
court got his remark as to the demeanor of the witness that
witness was afraid by the accused as he was trembling
stair and it has become evident to record recognition of the
trial and in that facts and circumstance trial court as well
as High Court relied upon by the statement of the
Magistrate who had conducted Test Identification Parade
that the witness has identified the appellant before whom
identification parade was done and hence, prosecution case
proved beyond doubt.
9. Learned counsel for the appellants however,
contends that two facts required to be taken into
consideration to distinguish the decision that there is no
demeanor recorded by the Judge of the witness examined
about their being afraid or trembling out of fear and
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witnesses 2 to 8 have declared hostile and witness no. 8
who is informant has also not supported the prosecution
case with regard to other and witnesses also identifying in
Test Identification Parade have not specifically stated
about what specific role of accused in committing dacoity.
10. Learned counsel for the appellants however,
contends that witnesses claimed to have identified the
accused persons in torch light and I.O. has not seized the
torch light. Hence identification of appellants is doubtful.
11. Hence having regard to the submissions of
the parties it is apparent that in the case, eight material
witnesses examined did not identify the appellants in
court and hence the substantive evidence about
identification of appellants is missing. However, the
identification in Test Identification Parade is secondary
evidence. However, in decision reported the evidence in
Test Identification Parade was taken substantive evidence
when the court in evidence marked the demeanor that the
witness was trembling under fear. However, under the
facts and circumstance when majority of the witnesses not
supported the prosecution case about identification and
there is no demeanor recorded, hence the principle can not
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be applied.
12. Hence under the facts and circumstances
prosecution has not been able to prove the charges and
hence order of conviction and sentence recorded by the
lower court is hereby set aside and appeal is allowed.
Patna High Court, ( Gopal Prasad, J.) The 18th July, 2011. NAFR/m.p.
