Criminal Appeal (SJ) No. 190 OF 1997 Against the judgment and order dated 06/07.07.1997 passed by Sri Mahendra Narain Singh, 2nd Additional District and Sessions Judge, East Champaran at Motihari in S.Tr. No. 185/88/107/89. ************ 1. Lagan Hazra, S/o Ramdhari Hazra. Resident of Village-Chaita. 2. Kishun Sah, S/o Chulhai Sah, resident of Village-Chaita Naika tola, both Police Station-Pakaridayal, District-East Champaran. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 255 of 1997 Prabhu Chaubey, S/o Ram Chandra Chaudhary of village Charita, P.S.-Pakrideyal, District-East Champaran. ………(Appellant) Versus THE STATE OF BIHAR. ……….(Respondent) ************* For the Appellant : Mr. Vivekanand Singh, Adv. : Mr. Ritesh Singh, Adv. : Mr. Umakant Shukla, Adv. For the State : Ms. Madhuri Lata, APP. : Mr. Suraj Prasad Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 395 IPC and sentenced to RI for seven years by the 2nd Additional Sessions Judge, East Champaran, Motihari in S.Tr. No. 185/88/107/89 by a judgment dated 06/07.07.1997. 2. The case of the prosecution is that on 16.02.1988 while the informant and his brothers were 2 sleeping on a cot at the door and the other inmates were inside the house some unknown dacoits entered into their house and variously committed robbery. A case against unknown was instituted at this information. Later the appellants were arrested on suspicion on 25.02.1988 and put on test identification parade on 14.03.1988 in which they were identified by P.Ws. 1, 2 and 3. 3. During trial the prosecution examined five witnesses out of whom P.W. 1, P.W. 2 and P.W. 3 are identifying witnesses whereas P.W. 4 is the Magistrate who conducted the test identification parade whereas P.W. 5 is a formal witness. 4. On behalf of the appellants two witnesses were examined to show that in fact the appellant, Lagan Hazra was a tonga driver whereas D.W. 2 is formal in nature. The Investigating Officer has not been examined on behalf of the prosecution. 5. Undoubtedly, the appellants had been arrested on 25.02.1988 and put on test identification parade more than a month later. The possibility of the appellants having been shown to the three identifying witnesses in the intervening period since they would have been produced in the Court in this period can not be ruled out. The Investigating Officer alone could have explained the delay in the test identification parade and 3 therefore it would be unsafe to rely solely on the ocular evidence of the three witnesses. 6. In the result, the appeals are allowed and the judgment dated 06/07.07.1997 passed by the 2nd Additional Sessions Judge, East Champaran at Motihari in S.Tr. No. 185/88/107/89 is, hereby, set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 12th July, 2011. NAFR/Vikash/-