Criminal Appeal (SJ) No. 252 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Md. Jabbar, S/o Md. Tahir, R/o Tola Thardhia Police Station-Salkhua, District-Saharsa. 2. Kishan Mehta @ Mahta, S/o Magan Mehta, R/o Village-Meharath, Police Station-Simri Bakhtiyarpur, District-Saharsa. 3. Narain Ram @ Chamar, S/o Bhajari Ram, R/o Village-Tola Lagma, Police Station-Simri Baktiyarpur, District-Saharsa. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Shashidhar Jha, Adv. For the State : Dr. Indirwar Kumari, 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 four years by the 1st Additional Sessions Judge, Saharsa in Sessions Case No. 132 of 1984 by a judgment dated 27.11.1995. 2. The case of the prosecution is that a daocity was committed in the house of informant, P.W. 3 on the night of 5/6.10.1975 by some unknown miscreants. Subsequently the appellants were arrested during investigation and put on Test Identification Parade. 3. The prosecution in all examined six witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are on the factum of occurrence. P.W. 6 is the District Development Officer who stated that on 2 12.01.1976 he had got conducted the Test Identification Parade of accused Choghan, Natho Mehta and Kishan Mahto and proved the TI Chart as Exhibit 2. 4. Even though P.W. 1, P.W. 2, P.W. 4 and P.W. 5 have stated that they identified the appellant No. 1 in the Test Identification Parade as also that P.W. 4 stated that he identified the appellant Nos. 1 and 2 in the Test Identification Parade but the Magistrate who got conducted the Test Identification Parade has not been examined by the prosecution. In his absence the TI Charts which have been produced by prosecution as Exhibits 2A and 2B has no meaning since the same is not substantive evidence. 5. In view of such, the appeal is allowed and the judgment dated 27.11.1995 passed by the 1st Additional Sessions Judge, Saharsa in Sessions Case No. 132 of 1984 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 28th April, 2011. NAFR/Vikash/-