CRIMINAL APPEAL No.227 OF 1993 Against the judgment and order dated 27th July, 1993 passed in Sessions Case No. 24/1985 by Sri Ram Vyash Ram, 1st Addl. Sessions Judge, Madhepura. SURENDRA MANDAL & ANOR.-------------------------------Appellants Versus STATE OF BIHAR----------------------------------------Respondent For the appellants : Mr. Rajesh Kumar, Amicus Curiae For the respondent : A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. REKHA KUMARI Rekha Kumari,J., This appeal is directed against the judgment dated 27.7.1993 passed by the 1st Addl. Sessions Judge, Madhepura in Sessions Case No. 24/1985, whereby he has convicted the appellants Surendra Mandal and Priyabrat Sharma u/s 412 I.P.C. and sentenced them to undergo R.I. for ten years. 2. The prosecution case, in brief, is that in the night between 29th and 30th day of January,1981 there was a dacoity in the house of the informant Ramanand Singh at village Jhitikiya, P.S. Murliganj, District Madhepura in which the ornaments, clothes etc. kept in steel box, briefcase etc. were looted. The brother Shyamanand Singh of the informant identified the co-accused Surendra Sharma and Gajendra Das at the time of dacoity. The F.I.R. accordingly was registered against those two accused persons. It is further alleged that during the course of investigation on 5.2.1981 some stolen clothes of the above dacoity were recovered from the house of the appellant Surendra Mandal at village Parukiya and some stolen clothes were recovered from the house of the appellant Priyabrat Sharma at village Hemabela, Saharsa. The police after completing investigation submitted charge sheet against the appellants and other accused. 3. All the four accused surendra Sharma, Gajendra Das and the two appellants were charged under section 395 I.P.C. and the appellants were further charged under section 412 I.P.C. They pleaded not guilty to the charges. The defence of 2 the appellants, as gathered from the suggestions given to the P.Ws., is that they have been falsely implicated. 4. The prosecution examined in all ten witnesses to prove the charges. The appellants did not examine any defence witness. The learned trial court after considering the evidence held that there was dacoity in the house of the informant but found that the prosecution has failed to bring home the charge u/s 395 I.P.C. against any of the accused. It, however, held that some clothes were recovered from the house of the appellants. He, hence, convicted them under section 412 I.P.C. and sentenced as mentioned above. 5. The point for determination before this Court is whether the learned trial court was justified in holding the appellants guilty u/s 412 I.P.C. 6. Learned Amicus Curiae submitted that though the informant and his brother claimed to have identified some stolen clothes in the Test Identification Parade, the B.D.O. said to have conducted the T.I.P. has not been examined to prove that the T.I.P. was conducted in a proper manner. Then, though the I.O. has stated that he had recovered some stolen clothes from the house of the appellants, the material exhibits were not shown to him to connect that actually the clothes identified in court by the informant and his brother were the clothes seized from the houses of the appellants. His submission also is that no question was put to the appellants during their examination under section 313 Cr.P.C. about the alleged recovery of the stolen clothes from their possession and this alone is sufficient to acquit the appellants. 7. In order to examine the point to be decided and the submissions of the Amicus Curiae, only the evidence of P.W.3 Ramanand Singh (informant), P.W.4 Shyamanand Singh (brother of the informant), P.W.5 Kameshwar Singh, P.W.8 Bechan Sharma (seizure list witnesses), P.W.9 Dinanath Mishra, the 3 main I.O. and P.W.10 Binod Prasad Yadav, Inspector, part I.O. is relevant. 8. P.W.3 has stated that on the alleged night there was dacoity in his house in which one attache and one briefcase and steel box containing clothes etc. were stolen. He has further stated that in T.I.P. he had identified the clothes belonging to his family. The clothes identified by him have been marked material Ext. I to XVI. P.W. 4 has also stated that on the alleged night there was dacoity in his house in which clothes, ornaments etc. were looted away. His evidence also is that he had identified the clothes (material Exts. I to XVI)in the T.I.P. 9. P.W.5 has stated that in his presence the I.O. had searched the house of the appellant Surendra Mandal and seized the clothes and prepared seizure list. He has identified his signature (Ext.2) and the signature (Ext.2/1), the other witness Dineshwar Singh on the seizure list. 10. P.W.8 has stated that the I.O. in his presence had searched the house of the appellant Priyabrat Sharma and seized clothes and prepared seizure list. He has identified his signature on it. P.W.9 has stated that during investigation he searched the house of the appellant Surendra Mandal in presence of Kameshwar Singh and Dineshwar Singh and recovered one Sweater, sari, blouse, saya etc. and had prepared seizure list (Ext.4). His evidence further is that he had searched the house of the appellant Priyabrat Sharma in presence of the witnesses and seized some clothes and prepared seizure list (Ext. 4/1). 11. P.W.10 has stated that he had put the clothes seized from the house of the appellants in T.I.P. which was conducted by the B.D.O., Murliganj. He has proved the signature of the B.D.O. on T.I.charts (Exts. 2/4 and 2/5). The witness in his cross-examination has stated that he did not mention in the diary as to what happened with the clothes after T.I.P. 4 12. Thus, from the evidence of the informant (P.W.3) and his brother (P.W.4), it is clear that a dacoity was committed in their house on the alleged night in which clothes etc. were stolen. 13. The important question, however, is whether the stolen clothes of the house of the informant was recovered from the house of the appellants. 14. In this connection, it may be mentioned that though P.Ws. 3, 4 have stated that they had identified the clothes marked Exts. I to XVI in T.I.P. and the clothes were stolen in that dacoity, the clothes were not shown to the I.O. to confirm that those clothes were actually seized from the house of the appellants. The evidence of P.W.10 also shows that he was not in a position to say as to what happened to the clothes after T.I.P. Therefore, it cannot be said with certainty that the clothes identified by P.Ws. 3, 4 were the clothes seized from the house of the appellants. The B.D.O., who had conducted the T.I.P., has not been examined. It has, therefore, not been established affirmatively that every necessary precaution was taken to ensure fair identification. The most essential requirement in Test Identification of property is that the witnesses should not have given an opportunity of seeing the property after its recovery and before its identification before the Magistrate. But in this case in absence of examination of the B.D.O., the requirement has not been satisfied. 15. It may, however, be mentioned that the evidence on T.I.P. is not a substantive piece of evidence. It is only a corroborative piece of evidence and the identification of an article in court is substantive evidence. The evidence of P.Ws. 3 and 4 shows that they have identified the clothes in court as these are stolen during dacoity, but I had already mentioned the evidence that P.Ws. 9, 10 ( I.Os.) does not prove that the 5 clothes identified by the P.Ws. 3, 4 were the same clothes which were seized from the house of the appellants. 16. To crown all, the statements of the appellants u/s 313 Cr.P.C. do not show that any question was put to them regarding the alleged recovery of stolen articles. It is well settled that any circumstance against the accused not put to him u/s 313 Cr.P.C. to explain, cannot be permitted by the prosecution to be used against him. As the above circumstance was not put to the appellants, they were unable to give their explanation on this circumstance and this has also caused prejudice to the appellants. So, on the basis of the alleged recovery of stolen articles from their houses, they cannot be held guilty u/s 412 I.P.C. There is no other material against them to prove this charge. 17. In view of the discussions made above, the learned trial court was not justified in convicting and sentencing the appellants u/s 412 I.P.C. 18. In the result, the conviction and sentence passed against the appellants is set aside. The appeal is allowed. 19. Before parting, the Court conveys its thanks to the Amicus Curiae for the valuable assistance rendered by him in the disposal of this appeal. ( Rekha Kumari,J.) PATNA HIGH COURT The 16th May, 2008 Surendra/ N.A.F.R.