1 CRIMINAL APPEAL No.512 OF 1988(D.B.) - - - - Against the judgment of conviction and order of sentence dated 2.9.1988 passed by the Sessions Judge, Gopalganj, in Sessions Trial No. 491 of 1984. - - - - Nurul Hassan @ Nurool Islam son of Rasool Mian, resident of Village Chakiya, P.S. Siwan,Distict Siwan … … Appellant Versus The State of Bihar … … Respsondent For the appellant: Shri Neeraj Kumar @ Sanidh, Adv., Amicus Curiae For the State: Sushri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE DINESH KUMAR SINGH - - - - Dharnidhar Jha & Dinesh Kumar Singh, JJ.- In spite of the name of the counsel for the appellant appearing in the list, none appears, leaving us no option than to appoint an Amicus Curiae. Shri Neeraj Kumar alias Sanidh, Advocate, is present in Court and he offers his assistance to assist us in this appeal. Shri Kumar is appointed as such. 2. This appeal is directed against the judgment of conviction and order of sentence dated 2.9.1988 passed by the learned Sessions Judge, Gopalganj, in Sessions Trial No. 491 of 1984 by which the solitary appellant was found guilty of committing offences under Sections 302/34 and 394 of the Indian Penal Code. The appellant was directed to suffer rigorous imprisonment for life as also rigorous imprisonment for ten years on each of the two respective counts. 2 3. The case related to an occurrence having taken place on 4.6.1983 at about 7 P.M. when a jeep had been parked at Thawe Chowk for carrying passengers to Mirganj. In fact, the jeep had started for Mirganj and when it was in the way and was somewhere near Village Bathna, three persons boarding the jeep had agreed to the driver that they will pay Rs. 200/- each as fair. What happened, thereafter, is that after having travelled for some distance, at a particular place, all on a sudden the vehicle was stopped and one of them whipped out a dagger as a result of which the informant who was the cleaner of the vehicle ran away. He reached Bathna Canal bridge where some shops were located and he told the shopkeepers about what had happened on which some of the shopkeepers with their torch lights came at the place of occurrence and in the flash of the torch light found that the driver Yogendra Rai was lying dead with gun shot injuries on his person and the jeep was found missing. A frantic search was made for the vehicle, but to no avail and, lastly, a report was lodged on 5.6.1983 at 12.30 P.M. 4. The investigation started and during that course the appellant was suspected as one of many culprits. He was arrested and it appears from the evidence on record, both of P.Ws. 1 and 2, that on being remanded to custody he was put on T.I. Parade in which one 3 witness, P.W. 2 identified him as the person who had switched off the engine of the vehicle. P.W. 1 Shri Vikash Kumar Sharma who had supervised the T.I. Parade on the orders of the Chief Judicial Magistrate, Gopalganj, testified to the T.I. Parade as having been conducted by observing the procedure of law properly in which P.W. 2 identified the appellant as a person who had switched off the engine. From the evidence on record we could not be pointed out that there was any evidence against the appellant that he had taken away the vehicle or that he had shot the deceased dead. The evidence of P.Ws. 1 and 2, who have stated about the identification of the appellant as one of the participants in the commission of the offence, also does not indicate that the appellant was armed with a pistol or any firearm by which the deceased was shot and killed. In fact, their evidence points out that the present appellant was identified only in connection with switching off the engine of the vehicle. He was not even alleged and identified to have dealt a dagger blow also. It was contended, as such, by the learned counsel for the appellant that there is complete lack of evidence as regards the participation of the appellant in the commissions of the twin offence of murder and robbery and the learned Judge, who was passing the judgment, recorded the order of conviction 4 and sentence against a persons other than the real culprit. 5. After having considered the evidence on record, we find that the evidence has come on the identification of the appellant in that particular night at the place of occurrence in connection of the switching the engine off, but the evidence of identification in connection with the specific role played by the accused is completely lacking as the same does not establish that it was the appellant who had shot and killed the driver and further that he was or he could be one of the persons who could have driven away and then taken away the vehicle. He might have been suspected as one of the members of the gang but, again, the evidence does not appear of that class upon which we could record such a finding. 6. Besides the above, we find that the appellant was arrested and remanded by the Chief Judicial Magistrate to jail custody on 7.6.1983 and he was produced before him on different dates for being remanded again under Section 167 Cr.P.C. The magisterial record of Gopalpur P.S.Case No.51 of 1983 which is the basic police case, indicates that a prayer for putting the appellant on T.I. Parade was made by the Investigating Officer of the case on 29.6.1983 and the identification parade could not be organized till 5 2.7.1983 on which date P.W.1 had supervised the parade. There is no evidence of any of the P.Ws before us as also from the judicial record of the case that any precaution was taken to conceal the identity of the appellant while he was being brought from District Jail, Gopalganj to the courts for remand purposes. As such, we could safely say that the appellant was open to being seen by many persons, might be the witnesses also and there could be all possibilities that his features were read and he was identified on that account. This probability gets heightened when we find that the identifying witness P.W. 2 is the informant of the case and he on account of the professional rivalry with the deceased must be watching the proceedings during that course. 7. From the facts discussed above, we find that the appellant ought to have been acquitted after being given benefit of doubt and, accordingly, we extend that benefit to him. We set aside the judgment of conviction and sentences passed upon the appellant and acquit him. 8. In the result, the appeal is allowed. The appellant, who is on bail, shall stand discharged from the liability of his bond. 9. We appreciate the assistance rendered to us by Shri Neeraj Kumar alias Sanidh. We feel that he is entitled to a fee of hearing which shall be paid to him 6 by the Patna High Court Legal Services Authority. Let copies of first and last page of this judgment be made over to him so that he could be able to get his fee. ( Dharnidhar Jha, J.) ( Dinesh Kumar Singh, J.) Patna High Court The 6th July, 2010 Kanth/N.A.F.R.