Criminal Appeal (SJ) No.164 of 1998 With Criminal Appeal (SJ) No. 206 of 1998 **** Against the judgment, dated 18.03.1998, passed by Smt. Vidyut Prabha Singh, Additional Sessions Judge, I, Katihar, in S. Tr. No. 119 of 1998 **** 1. Raghuni @ Raghunath Mandal, son of late Dhorai Mandal, resident of village Narihya, P.s. Falka (Pothia) district Katihar 2. Sudhir Mandal, son of Dhaneshwar Mandal, resident of village Satbehri Chanpur, P.s. Falka (Pothia) district Katihar 3. Kala Mandal, son of Sri Baldeo Mandal, resident of village Chohar, P.S. Falka (Pothia) district Katihar .. Appellants (in Cr. Appeal (SJ) No. 164/98) Harilal Mandal, son of Sohan Mandal, resident of village Mohanpur, Budhu Chak, P.S. Kapouli, district Purnea .. Appellant (in Cr. Appeal (SJ) No.206/98) Versus The State Of Bihar .. Respondent (in both the cases) **** For the Appellants .. Mrs. Rina Sinha, Adv. (in Cr. Appeal (SJ)No.164/98) as Amicus Curiae For the Appellant .. Mr. Ranvir Singh, Adv. (in Cr. Appeal (SJ)No.206/98) Adv. as Amicus Curiae For the Respondent .. Mr. Parmeshwar Mehta APP (in both the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2 2. Both the appeals are being heard together and disposed off by this common judgment as the conviction of the appellants in both the cases are from the same order in sessions trial and the appellants have been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years to each. 3. The prosecution case, as alleged in the fardbeyan by the informant that on 26.01.1987 in the evening he was talking then all of a sudden he heard hulla of the female inmates of his house and when he came out then three dacoits surrounded him and 10-12 entered into the house and committed dacoity and he claimed to have identified three dacoits in the light of the lantern and he mentioned that out of three dacoits one was holding a pistol and was wearing lungi and wrapped a towel on the head and they committed dacoity and addressing each other as comrade and the dacoits took away various articles mentioned in the fardbeyan. On the fardbeyan the first information report lodged and during investigation some of the dacoits were apprehended and the Test Identification Parade was conducted. Further, case that during the investigation one of the witnesses identified one person in a shirt which is alleged to have been looted in dacoity and, hence, that person was apprehended and handed over to police. Subsequently, the Test Identification Parade conducted and after investigation the charge sheet submitted, cognizance taken and the case was committed to the Court of sessions for offence under Sections 395 and 412 of the Penal Code. 4. However, after commitment the charge was framed under Sections 395 and 412 of the Penal Code and after framing of the charge 3 eleven witnesses have been examined on behalf of the prosecution apart from that documentary evidence Exhibit 1, the seizure list, Exhibit 2 fardbeyan, Exhibits 3, 3/a, 3/b and 3/c are the test identification chart and Exhibits 1A and 1B are the signature on the test identification chart. 5. Three witnesses examined on behalf of the defence and two witnesses have been examined as Court witnesses, who are the Judicial Magistrates, conducted the Test Identification Parade. 6. The trial Court taking into consideration the evidence that appellant, Harilal Mandal was identified by the informant and appellant Raghuni identified by P.Ws. 11 and 5, appellant Sudhir Mandal by P.W. 3 and appellant Kala Mandal by P.W. 5 and taking into consideration the evidence of the witnesses convicted the appellant for offence under Section 395 of the Penal Code and sentenced them to undergo rigorous imprisonment for ten years, however, acquitted the appellants of the charge under Section 412 of the Penal Code as the prosecution has not been able to prove the charge. 7. The learned counsel for the appellants, appearing as amicus curiae, however, contends that the investigating officer of this case has not been examined. The Test Identification Parade of the appellants conducted after 3-4 months or even after 9-10 months of the occurrence and the means of identification have not been established and though it is alleged that the identification was made in the light of lamp or torch, but, there is no investigation regarding these means of identification as investigation officer has not come to depose in the case has caused prejudice and, further, the conviction is only on the basis of 4 single identification and the witnesses have not stated specifically about the physical feature of the idenfication during the statement nor have stated specifically that what act of commission and omission was being done by the appellants and, hence, further the occurrence of the year 1987. 8. Hence, taking into consideration the evidence in the light of submissions, eleven witnesses have been examined in this case and they have come to support the prosecution case. P.Ws. 1 to 5 have come to support the prosecution case and about the dacoity. P.W. 6 has stated that he went in Maghi Mela and there he found one person wearing his shirt looted in the dacoity and then he caught hold of him and handed over to police. However, P.W. 9 stated in his evidence that the seizure list was prepared with regard to shirt and he has proved his signature on the seizure list as Exhibit 1. However, P.W. 10 is a Chowkidar has stated that nothing recovered before him and Bara Babu took his thumb impression. P.W. 6 identified Harilal Mandal on the basis that he has caught hold of Harilal Mandal in Maghi Mela wearing a shirt which belonged to him and seizure list prepared on 13.02.1987 whereas the occurrence is of 26.01.1987 and, hence, the identification of Harilal Mandal by P.W. 6 is that he was seen during dacoity, but, he was caught on the basis that accused, Harilal Mandal, was wearing a shirt P.W. 6 he alleged belonging to him and looted in dacoity. However, no Test Identification Parade with regard to the shirt. P.W. 1 Ganpat Mandal and he claims to have identified Harilal Mandal in the Test Identification Parade as well as in the Court, but, this witness has stated in cross 5 examination that the dacoit was caught after 1(1/2) months by daroga in Maghi Mela to whom he had identified. However, to a Court question this witness stated that the person was arrested before him there. However, he has, further, stated that he has heard this. However, in view of his specific assertion in paragraph 11 of his deposition that he was arrested there before police. He has, further, stated that the son of Mukhiyajee has caught hold of him and daroga was called and handed over to him and he has, further, stated that after having been called he was sent to Barari Police Station and, hence, in view of these evidence that the Harilal Mandal was arrested before him and his identification about the involvement of Harilal Mandal in dacoity cast a doubt of the involvement of Harilal Mandal. However, this witness has, further, stated on his own that these did not happen before him, but, he had only heard, however, the evidence of the witnesses in view of this statement and evidence in cross examination that Harilal Mandal was arrested in Maghi Mela before him his identification of Harilal Mandal during dacoity does not inspire confidence. 9. P.W. 3, however, identified Sudhir Mandal in Court and he has stated that he has also identified this person in Test Identification Parade. However, he has not stated the means of identification though in his examination-in-chief he has stated that he put on his torch on seeing some person coming from the west and then he asked who are they and then the miscreants catch hold of him and he identified one of them by face, but, he fled away. However, in cross examination he stated that when the dacoits receded he returned back and he had a talk with 6 Birendra regarding dacoity, but, he did not disclose his son that he has identified the dacoit in the light of torch. However, neither any physical feature of the dacoit has been mentioned to whom he claimed to have identified nor disclosed the act of omission and commission of the dacoity during dacoity when he identified. However, he claimed to have identified Sudhir Mandal in Court and Test Identification Parade and, hence, identification of this witness appears to be doubtful. 10. P.W. 4, however, supported the prosecution case about dacoity and claimed to have identified Anil, however, Anil is not appellant and P.W. 5 claims to have identified Kala Mandal, Anil and Raghunath and identified them in Court as well as in Test Identification Parade. However, he has stated that three dacoits had come to him and asked him where is the gun and when he said that he does not know then he asked him to sleep on the bed and one dacoit assaulted him by back portion of garasa and put quilt on him and he claimed that he identified the three dacoits in the light of the lamp. He has, further stated that out of the three dacoits, one was holding a 3 not 3, one holding garasa and one has gone and when the dacoits were started fleeing out side then he went out and saw the dacoits fleeing away. However, he claimed to have identified three dacoits, but, does not mention that what act of commission and omission was being done by these dacoits and who was armed with which weapon when identified and what act was being performed by them. In cross examination he has, further, stated that he does not remember that at that was sitting facing which side and he does not remember that the lantern was on which side though stated that 7 lantern was burning about, but, he can not say the direction and, further, stated in his cross examination that he identified the dacoit while the dacoits were fleeing away. In paragraphs 13 and 14 of his deposition P.W. 11 also claimed to have identified Raghuni in Test Identification Parade as well as in Court, but, did not mention the act of commission or omission at the time of dacoity. However, the occurrence is of January, 1987, and Test Identification Parade of this witness was conducted on 26.12.1987 when he was arrested on 16.12.1987 and, hence, the identification does not inspire confidence. More over, the investigating officer of the case has not been examined and C.Ws. 1 and 2 are the Judicial Magistrates who have come to depose and prove the Test Identification Parade and test identification chart and conducted the Test Identification Parade of the suspects. 11. Hence, having regard to the facts and circumstances, since, the investigating officer has not been examined the means of identification has not been established, there is no investigation with regard to the means of identification when they identified the appellants and what act was being done by them and identification of Raghuni on 26.12.1987 after more than a year of the occurrence and more over in the case of Kala Mandal, Sudhir Mandal and Harilal Mandal identification by only one witness and, hence, conviction on the basis of one witness, under the facts and circumstances where the means of identification has not been established and the investigating officer has not been examined and with regard to Harilal Mandal who was arrested at Maghi Mela wearing shirt alleged to be looted in the dacoity for which a seizure list 8 has been marked, but, no Test Identification Parade conducted and identification of Harilal Mandal by P.W. 1 is doubtful in view of his cross examination that he was Harilal Mandal was arrested before him at Maghi Mela. 12. Hence, having regard to the facts and circumstances, the appellants are entitled for benefit of doubts, as the prosecution case has not been able to prove charges beyond all reasonable doubts and, hence, I find and hold that the prosecution has not been able to prove the charges and the order of conviction and sentence of the lower Court is hereby set aside and both the appeals are allowed. ( Gopal Prasad, J. ) The Patna High Court, The 11th day of August 2011, N.A.F.R., S.A.