Criminal Appeal (SJ) No.539 of 2006 Against the judgment of conviction and order of sentence dated 29.04.2006 passed by Additional District & Sessions Judge, Fast Track Court No.V, Banka in Sessions Trial No.147 of 1993/Trial No.50 of 2006 arising out of Katoria P.S.Case No.58 of 1990, G.R.Case No.665 of 1990. BHAGUWA MIAN... .... APPELLANT VERSUS STATE OF BIHAR ... .... RESPONDENT ------ For the Appellant : Sri Ravindra Kumar, Amicus Curiae For the Respondent : Sri Ajay Mishra,A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant Bhaguwa Mian has filed the appeal from jail to assail the judgment of conviction dated 29.04.2006 passed by Fast Track Court No.V, Banka in Sessions Trial No.147 of 1993/Trial No.50 of 2006 by which the appellant was found guilty of committing offence under Section 395 IPC and was directed undergo rigorous imprisonment for ten years. 2. It is not disputed that a dacoity was committed in the house of P.W.8 Giru Yadav at about 8 P.M. on 02.06.1990 in which the informant was also assaulted by the dacoits along with his family members and properties as per description in the written report Ext-3 were taken away. No one was identified either by the informant or any of his family members, 2 but subsequently as may appear from the judicial record this appellant was sought to be remanded from Amarpur P.S.Case No.16 of 1999 by filing a petition before the Chief Judicial Magistrate, Banka on 24.01.1999. This appellant was produced from Amarpur P.S.Case No.16 of 1999 before Chief Judicail Magistrate on 25.01.1999 and was accordingly, remanded. Thereafter, the appellant was brought from Banka jail for production on different dates and, lastly, was put on test identification parade after 32 days of being remanded as may appear from test identification chart dated 18.02.1991. P.W.8 the informant identified the appellant as one of the dacoits who was asking him to sit down during the commission of the dacoity in the house of P.W.8. 3. As regards the other witnesses no one claimed having identified any one and they rather stated that they did not identify any dacoit. Most of the witnesses stated that they had not participated in any parade to identify any suspect. Thus, what appears from the record is that the appellant was convicted on the solitary identification evidence of P.W.8. 4. It is not unknown to law that the evidence of solitary witness even if he is the sole identifying witness could not be made basis for convicting an accused. What is required to be satisfied is that the 3 evidence of the solitary identifying witness must inspire confidence and he must stand the rigors of cross-examination. From paragraph-35 of the evidence of P.W.8, it transpires that he was a frequently passed through villag-Balsara which was the village of residence of the present appellant. He has admitted in paragraph-35 that the appellant used frequently to pass through the village which was situated at the distance of 2-3 kilometers from his own village. Thus, there might be a probability that he was acquainted with the residents of that particular village. It is true that while identifying the appellant on 18.02.2991 the informant P.W.8 has stated that the appellant was asking him to sit down, but this evidence goes unsupported by the Magistrate who was supervising the test identification parade and was preparing Ext-5. The test identifying parade chart dated 18.02.1991 was tendered in evidence by examining a formal witness P.W.9 who was an employee of the Civil Courts, Banka and who was only stating to the fact that he was acquainted with the writings and signature of Sri C.Tanti, Judicial Magistrate who had supervised the test identification parade on 18.02.1991. 5. I have indicated that after being remanded by order dated 25.01.1991, the appellant was 4 frequently produced before the Magistrate for being remanded. The investigating officer was not examined and as such there is no evidence to indicate that necessary precautions were taken to conceal the face of the appellant so as not to be seen by any person at least by the witnesses so that he may be identified. There could be a possibility that while being produced before the Magistrate for identification the witness could have the occasion of seeing the appellant and as such there was no difficulty for P.W.1 in identifying the appellant. Rule 236 of the Bihar Police Manual categorically directs that identification parade should be held without delay because delayed holding of identification parade is not acceptable to the courts. This may be had from Rule 236(8)of the Bihar Police Manual. I have already indicated that the appellant was remanded from Amarpur P.S.Case No.16 of 1991 on 25.01.1991 and the test identification parade was held on 18.02.1991, i.e., after 32 days and I find no explanation coming from the prosecution as to why the test identification parade was held after such a long delay. Besides, it is unknown to this Court as to from which date the appellant was in custody in connection with Amarpur P.S.Case No.16 of 1991 from which he was remanded by order dated 25.01.1991. The appellant was not named in the FIR and as such it was 5 necessary for the prosecution to point out that the appellant was in custody subsequent to 02.06.1990. Above are some of the circumstances which create reasonable doubt in the veracity of the prosecution case making it unsafe to sustain the order of conviction passed by the trial court. 6. In the result, the appeal succeeds and the same is hereby allowed. The judgment of conviction passed by the learned trial court is hereby set aside along with the sentence which was passed upon the appellant. The appellant is acquitted. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. 7. Sri Ravindra Kumar, learned Amicus Curiae has assisted this Court and he deserves one fee of argument which is directed to be paid by the Patna High Court Legal Service Committee and for that purpose let a copy of the first and the last pages of the judgment be handed over to him. Patna High Court, Dated, the 11th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)