Criminal Appeal (SJ) No. 964 of 2006 With Criminal Appeal (SJ) No. 1047 of 2006 ---------- Against the judgment and order of conviction and sentence dated 14.11.2006 and 15.11.2006 passed by Shri Prodip Kumar Neogy, Additional Sessions Judge, Fast Track Court No. I, Sheohar in Sessions Trial No. 120 of 2003 / 201 of 2006. ---------- Cr. Appeal (SJ) No. 964 of 2006 Bhagirath Paswan, son of late Bhukhlu Paswan, resident of village – Rejama, Police Station – Sheohar, District – Sheohar (Sitamarhi) ……………… Appellant Cr. Appeal (SJ) No. 1047 of 2006 Ram Lal Paswan, son of late Pratap Paswan, resident of village – Rejama, Police station – Sheohar, District – Sheohar (Sitamarhi) …………….. Appellant Versus The State of Bihar …….………. Respondent (in both the appeals) --------- For the Appellants : Sarvshri Rajendra Pd. Sah & Sunil Pd. Singh, Advocates For the State : Shri S.N. Prasad, APP --------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA Dharnidhar Jha, J. The two appeals arise out of the judgment dated the 14th November, 2006 passed by the learned Additional Sessions judge-cum-Presiding Officer, Fast Track Court – I, Sheohar at Sitamarhi in Sessions Trial No. 120 of 2003/ 201 of 2006 by which 2 the two appellants, one in each of the two appeals, were convicted of committing offences under sections 395 and 397 IPC and were directed to suffer RI for seven years on each of the counts, which sentences were directed to run concurrently. The appellants were acquitted by the same judgment of the charge under section 17 of the Criminal Law Amendment Act. 2. It appears that a police picket had been stationed near a temple situated at Deokuli known as Deokuli Dham. It further appears that the informant Kapildeo Yadav, Constable No. 117 of Sheohar Police Force, was standing on guard duty at Deokuli Dham temple on 24.6.2001. At about 4.15 P.M., while other constables were also around him, someone came running to the police picket raising a halla of ‘Jaan Bachao-Jaan Bachao’ who was being followed by twenty – twenty five criminals. The gang of criminals not only overpowered the person who was being chased by them but also overpowered the constables on duty at Deokuli Dham. The unknown criminals snatched rifles from the guard on duty and one of the miscreants took out a carbine from the bag and fired into air. The remaining miscreants entered the room, which was the armory of the picket, and took away six rifles and 180 rounds of cartridges. While retreating, they raised the slogans of ‘MCC Jindabad’. The police had retaliated and during that course, some police personnel like, the informant and others had been injured, who were hospitalized in Sub Divisional Hospital, Sheohar and on that basis the FIR of the case was drawn up. The case was investigated into, during that course the I.O. recorded the 3 statements of witnesses, seized the incriminating articles by preparing the seizure memo (Ext. 4) and also obtained the injury reports of injured constables which have been marked Ext. 3 to ¾. 3. It appears that the two appellants were arrested and remanded in another case, i.e., Sheohar P.S. Case no. 108 of 2001 from which they were remanded into this case on 29.11.2001 as appears from the orders passed by the Magistrate which are part of record. They were put on Test Identification Parade on 22.12.2001, which is apparently clear from the perusal of Ext. 5 indicating as if the two appellants had been identified by Kapildeo Yadav (P.W. 9) and Nepal Prasad (P.W. 4). On close of investigation, the two appellants were put on trial that resulted in the impugned judgment. 4. Plea of the appellants was of false implication and their innocence. 5. Learned counsel appearing for the appellants in the two appeals advanced a solitary submission. It was contended that there is no dispute in the fact, which is recorded in the impugned judgment also, that the appellants were never arrested in the present case though they are said to be named in the FIR and was arrested in the above noted Sheohar P.S. Case no. 108 of 2001 from which, they were remanded into this case on 29.11.2001. The record of the case, it was contended, shows that after being remanded into the present case on 29.11.2001, the appellants were brought to the court in routine remand as per section 167 Cr.P.C. and there is no indication from any of the orders that the rules contained in the Bihar Police Manual, i.e., Rule 4 236 (a) was complied as regards the precautions to be taken in bringing the accused suspected to have committed the offence for his production in court. It was contended that the appellants were coming to court for one month or more than that and thereafter they were put on Test Identification Parade on 22.2.2001 and were identified by two witnesses, namely, P.Ws 4 and 9, who were none else than the police personnel being the constables. It was contended that on account of not observing the rules of the Bihar Police Manual as regards the precautions to be taken, the very evidence of putting the appellants on Test Identification Parade and their identification by P.Ws 4 and 9 gets vitiated and, as such, the conviction of the appellants could not be sustained. 6. Rule 236(a) of Bihar Police Manual, 1978 reads as under: “236. Identification of suspects.---(a) Whenever it is necessary that a person suspected of having been concerned in any offences should be identified by a witness, the following instructions shall be complied with word by word:- (1) These suspects shall be kept at a place where identifying witness cannot have access to him. (2) At the time of taking the suspects to Court or Jail, precaution shall be taken that none is able to see them and hence they shall be taken in closed vehicles or if such vehicles are not available, their faces shall be covered in such a manner that they cannot be recognized. (3) As far as possible, the photographs of suspected persons shall not be published before identification. 5 (4) The investigator shall not keep suspected persons in Police custody before holding Test identification. (5) The prosecutor shall request the Magistrate that these persons should not be released on bail before identification. (6) If the physical characteristics of any suspected person are such that on account of these, he can be searched in a group, then as far as possible such persons shall be assembled for mixing up who have similar characteristics or the characteristics shall be covered. The investigator shall see before identification parade begins that the suspected person is available in it. (7). For identification, one suspected person is to be mixed with 8 -10 others persons and not that ten suspected person shall be mixed in a small group. (8) Identification should be done without delay because identification done with delay is not fully acceptable to Courts. (9) Where the description of suspected persons in the first information report or in the statements of witnesses are so explicit that there is no suspicion left of any kind, it is not essential to hold identification parade. (10) The investigating officer though his presence may be essential outside shall not be present while the identification is in progress. (11) If a witness is unable to attend an identification parade and identification is considered necessary, this may be arranged with reference to photograph, details of which are incorporated in Appendix 22. 6 (12) When suspected persons are brought for identification its chart shall be prepared in P.M. Form no. 42. An indication of the above facts should be given in case diary and identification chart.” 7. It may appear from a bare perusal of Rule 236(a)(1)(2) that the suspects, who have to be put on Test Identification parade for identification, have to be placed at such place so that no witness could have access to them. It is further evident from the subsequent sub-rule that at the time of taking the suspects to court or jail, precaution has to be taken that none is able to see them and hence, the accused has to be taken in a closed vehicle. In case such a vehicle was not available, then the requirement of the rule was that their faces be covered in such a manner that they cannot be recognized. Rule 236(a) (8) requires the holding of Test Identification Parades without delay, which is always frowned at by Courts. I have already noted by referring to the orders passed by the magistrate at the stage of investigation that the appellants were not arrested in the present case, rather, were arrested in Sheohar P.S. Case No. 108 of 2001. They were remanded in the present case from the above mentioned Sheohar P.S. Case no. 108 of 2001 by an order dated 29.11.2001 and were produced on many dates for routine remand purpose before the magistrate. Before that they must have been brought to the court for similar purposes. No order passed in between 29.11.2001 and 22.12.2001 indicates that any direction was given by the magistrate so as to securing the identities of the appellants. It also does not appear from the perusal of the record or 7 any order passed in that regard that the police had reported taking any precaution as regards securing the identity by features of the appellants from being seen by any other witness. This is one aspect of the matter. The same rule may indicate that a particular form stands prescribed for recording the results and findings of the TIP and one of the columns requires that the identifying witness must state as to in what connection the suspect was identified; whether he was standing at the door or was flashing torch light or was assaulting the inmates of the house or was plundering properties? 8. If one could consider the evidence of P.Ws 4 and 9 as also of the Magistrate, Shri Atal Bihari Chaturvedi, who was supervising the test identification parade, one could find that the witnesses had never stated that in what connection they had claimed to have identified the accused. Not only that, the evidence of P.W. 4 indicates that he had identified another accused, namely, Shrichand Paswan, who is not an appellant. Thus the evidence on identification does not only appear not acceptable on account of non compliance of the Rule 236(a) of the Bihar Police Manual, but also appears deficient inasmuch as P.W. 9 could not be said to have identified either of the two appellants. 9. So far as the evidence of P.W. 9 Hawaldar Kapildeo Yadav is concerned, he has claimed to have identified both the appellants as may appear from his evidence in paragraph 4 but the same fallacy afflicts the evidence of P.W. 9 in paragraph 4 as he has simply said in a general way that he had participated in the Test 8 Identification Parade organized for the identification of the suspects and he had identified the two persons, namely, the two appellants, thus, leaving the evidence on identification not only uncertain as regards the compliance with the provisions of rule 236 (a) of Bihar Police Manual, but makes the evidence very weak as it was not stated by P.W. 9 as to in what connection he had identified the two appellants. 10. Might be that a police picket had been attacked, it might also be the case that constables had been injured by the extremists or criminals attacking them. It could be yet another truth that armory of police constabulary was plundered, but these aspects could not move the sentiment of a court to record moral conviction as appears done by the learned trial court. Conviction of an accused could be recorded only when there could be definite conclusion on consideration of the evidence that it could be the accused and accused alone, who was facing trial, who could have committed the offence and that too when proof of his guilt is completely inconsistent with the theory of innocence, that the judge could go to record him guilty. The learned judge appears more moved by his sentiment which incidentally was touched. But, judges are known to have no sentiment when they are called upon to judge facts. In my considered opinion, the present does not appear a case where the appellants could have been convicted. There was no proof of charge by sufficient, admissible and acceptable evidence. The prosecution, in my opinion, had not proved the charges, which clearly entitles the two appellants to acquittal. As such, the 9 conviction of the two appellants under sections 395 and 397 IPC and sentences passed upon them are hereby set aside. Both the appellants are acquitted of the charges. 11. The two appellants had been directed to be released under section 428 Cr.P.C. after setting the period off against the sentence of imprisonment passed against each of them. It was submitted that the appellants had already been released. However, in case they are still in prison in connection with the present case, they shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 22nd July, 2011, NAFR/Anil/