JUDGMENT
Ramnandan Prasad, J.
1. Whether the accused can be convicted on the evidence of a Magistrate holding the Test Identification Parade when the witness who had identified the accused at that Test Identification Parade failed to identify him in Court at the time of the trial is the substantive question which has arisen for decision in this appeal.
2. All the three appellants, out of whom, one Narain Das is now dead, have been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for eight years each.
3. The prosecution case was that a dacoity had taken place in the house of the informant Kedar Prasad Yadav at village Paraulia in the night of 10th/11th Sept. 1977. An information about this occurrence was lodged by the informant at Motihari Mufassil Police Station on the following day. It appears that the informant had not claimed to identify anybody in the first information report. In course of investigation, however, some persons including the three appellants were arrested and put on Test Identification Parade, held on 17th April, 1978 and at this Test Identification Parade P.W. 3 had identified appellant 2 Latu Sahni and P.W. 4 had indentified the other two appellants as participants in that dacoity. At the trial, however, these two witnesses, namely, P.Ws. 3 and 4 failed to identify any of these appellants but on the statement of the Magistrate (P.W. 2), who conducted the Test Identification Parade and Test Identification Chart (Ext. 1), the learned Additional Sessions Judge, who conducted the trial, found the three appellants guilty. For coming to this conclusion the learned Additional Sessions Judge has placed reliance on a single Bench Decision of this Court in the case of Rahman Mian v. State 1953 BLJR 703.
4. No doubt, the case of Rahman Mian (supra) supports the view that a conviction could be based on the basis of Test Identification Chart even if the identifying witnesses failed to identify the accused in the Court at, the time of trial, provided the Magistrate is examined in Court. The question is whether this view still holds the field and lays down the correct law.
5. The learned Counsel for the appellants has rightly submitted that the aforesaid decision stands overrlued by the decision of the Supreme Court in the case of Hasib v. State of Bihar . It would be worthwhile to quote para 6 of this decision which is directly on the point:
6. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh the substantive evidence is the statement of a witness in Court and the purpose of test identification is to test that evidence the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when P.W. 10 saw them on Jan. 28,1963 then the T.I. Parade as against him cannot be of any assistance to the prosecution.
6. Thus, it is evident that what is substantive evidence is the sworn testimony of the witness in court and not the testimony of the Magistrate conducting the Test Identification Parade. The Test Identification Chart or the evidence of the Magistrate conducting the Test Identification can only corroborate or contradict the witness, but, they cannot replace the evidence of the identifying witness on the question of identification as substantive evidence. When the witness fails to identify the accused in Court, there remains no evidence at all on which a conviction can be based and in such a situation the Test Identification Parade cannot be of any assistance to the prosecution. That being so, the learned Additional Sessions Judge was wholly unjustified in convicting the appellants on the basis of the Test Identification Chart and the evidence of the Magistrate when the witnesses themselves failed to identify any of the appellants in the Court as there remains no legal evidence at all in the case and the court cannot convict anyone on the basis of an evidence which is in the nature of a mere corroborative evidence, in the absence of substantive evidence itself. Thus the question posed at the outset is answered in the negative.
7. In view of what has been stated above, the conviction of appellants No. 1 and 2 cannot be sustained in the eye of law and, as such, the order of conviction and sentence recorded against them by the learned Additional Sessions Judge is set aside and they are acquitted of the charge. The appeal, accordingly, succeeds so far these two appellants are concerned and they are discharged from the liability of their bail bonds. So far appellant 3 Narain Das is concerned, no such order can be passed as he is dead and the appeal has abated as against him.