IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.730 of 2007 Against the judgment and order of conviction and sentence dated 26.2.2007 and 27.2.2007 passed by Shri Jagvir Kumar Katiyar, Additional Sessions Judge FTC II, Kaimur in S.T. No. 226 of 2004 / 223 of 2004. =========================================================== Bahir Mushar, son of late Nanhu Mushar, resident of village – Ramgarh, Police station – Kaimur, Bhabua .... .... Appellant Versus The State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Shri Shyama Kant Singh, Advocate (Amicus Curiae) For the Respondent/s : Shri Ajay Mishra, APP =========================================================== PRESENT THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The present appellant appeals from jail against his conviction recorded by judgment dated 26.2.2007 by the learned Presiding Officer, Fast Track Court II, Kaimur in S.T. No. 226 of 2004 / 223 of 2004 and by the impugned judgment was found guilty for committing offence under section 395 IPC and was directed to suffer RI for seven years. 2. It appears that a dacoity was committed in the house of P.W. 6 Md. Sikandar Quraisi in the night intervening 6th and 7th March, 2003 when he, his wife Ajeeman Bibi (P.W.3) and his daughter Bangur Khatoon (P.W. 4) were sleeping in their house, dacoits, 8-10 in number and unknown to the informant and his family members, barged into his house and plundered the house hold articles, like, a big box containing properties, a small box, two attaché case, one pair of gold ear rings, one silver chain and other silver ornaments besides some saris as per details given in the fardbeyan (Ext.2). 2 3. On the basis of the fardbeyan of P.W. 6, the FIR of the case was registered and investigation was taken up by P.W. 7 SI Ravan Soren, who was then posted as Sub Inspector in Ramgarh Police station in the district of Kaimur. During the course of investigation, this appellant was arrested on suspicion and he appears put on test identification parade where he was identified by P.W. 6. A total number of seven witnesses were examined and none except P.W. 6, the informant, claims that he had identified the present appellant or any person during the occurrence or in test identification parade organized for identifying the suspected accused. One court witness, namely, Laljee Prasad was examined who proved the writings of the fardbeyan as also those of the FIR. 4. On perusal of the evidence, what is found is that P.W. 6 has stated that he accompanied the magistrate up to the jail and identified Bahir Mushar as one among the dacoits. In addition to him, P.W. 5 Md. Junaid Quraisi has stated that he identified one of the criminals and it was the present appellant. In cross examination, it has come both in the evidence of P.W. 4, the daughter of the informant and that of his own that the present appellant is a co villager of the informant and he was quite well known to the informant and his family members. Even if there had not been any admission about the informant or his family members knowing or being acquainted with the appellant, still on account of the fact that the informant and the present appellant were co villagers, a simple inference could have been drawn that they were known to each other. P.W. 5 who was claiming to have identified the present appellant also is also a co villager and if he had identified the appellant during the very commission of the offence or just thereafter, then it was expected that the name of the appellant ought to have appeared as one of the dacoits in the very FIR of the case. But, as indicated above, the case was registered against unknown. There was not even a whisper in the FIR 3 of P.W. 6 that any of his villagers could even be suspected to be one of the participating dacoits. In the above background, the authenticity of the test identification parade and holding thereof loses its legal importance. 5. It was, in fact, useless to organize a test identification parade so as to putting the present appellant for identification. Identification parades are known to be organized only when a witness was claiming that he could identify a dacoit who had participated in the occurrence if he had the occasion of seeing him again. What follows logically from the principle is that identification parades are means of collecting evidence in a situation where accused is not personally known to the witness but on account of having seen the culprits had catched up with the features of identifying such culprits which had got imprinted in the minds of the witness and by giving a chance to participating in the test identification parade that witness recalls his memory and identifies an accused. When a person is already known on account of being a co villager, he could not be put in such a situation which may require organizing a test identification parade. The simple reasoning which I have just recorded is that if the appellant had participated in the commission of dacoity, then there was no reason as to why the informant and P.W. 6 were not naming him just after it so that he could be named as one of the dacoits in the FIR. There is no such evidence on record. As such, the appeal is meritorious and is, accordingly, allowed. The judgment and order of conviction and sentence are set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 6. Shri Shyama Kant Singh, learned counsel, who appears appointed amicus curiae at the very stage of admission of the appeal, deserves a fee of hearing and it is directed that the same be paid to him by the Patna High Court Legal Services Committee. Let the first and the last pages of the judgment be made over 4 to him for that purpose. (Dharnidhar Jha, J.) Patna High Court, The 17th November, 2011, AFR/Anil/