Criminal Appeal (SJ) No.52 of 1999 With Criminal Appeal (SJ) No. 78 of 1999 With Criminal Appeal (SJ) No. 79 of 1999 With Criminal Appeal (SJ) No. 112 of 1999 **** Against the judgment, dated 16.03.1999, passed by Shri Bijay Kumar Verma, Additional Sessions Judge, III, Rohtas at Sasaram, in S. Tr. No. 652 of 1996 **** 1. Suraj Ram, son of Boochul Ram, resident of village Laxumanpur, P.S. Bikramganj, district Rohtas 2. Chiteshwar Giri, son of late Ram Prasad Giri, resident of village Pilapur, P.S. Jagdishpur, district Arrah (Bhojpur .. Appellants (in Cr. Appeal (S.J.) No. 052/99) Sharma Mushar, son of Lal Mohan Mushar, resident of village Semra Tola, P.S. Bikramganj, district Rohtas .. Appellant (in Cr. Appeal (S.J.) No. 078/99) Bhushan Giri, son of Kapil Giri, resident of village Jamuhar, P.S. Dehri, district Rohtas .. Appellant (in Cr. Appeal (S.J.) No. 079/99) 1. Ram Pravesh Sonar, son of late Ram Sakal Seth, resident of village Udar dihri, P.S. Bikramganj, district Rohtas 2. Kedar Paswan, son of late Prabhu Paswan, resident of village Lusumanpur, P.S. Bikramganj, district Rohtas at present resident of village Lachumanpur, P.S. Bikramganj, district Rohtas .. Appellants ( in Cr. Appeal (S.J.) No. 112/99) Versus The State of Bihar .. Respondent (in all the cases) **** 2 For the Appellants .. Mr. Arun Kr. Tripathi, Adv. (in Cr. Appeal (S.J.) No. as Amicus curiae 52 of 1999) For the appellant .. Mr. Bikramdeo Singh, Adv. (in Cr. Appeal (S.J.) No. 78 of 1999) For the appellant .. Mr. Bibhakar Tiwary, Adv. (in Cr. Appeal (S.J.) No. 79 of 1999) For the appellants .. Mr. Bikramdeo Singh, Adv. (in Cr. Appeal (S.J.) No. 112 of 1999) For the respondent .. Mr. Parmeshwar Mehta, APP (in all the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. These four appeals have been heard together and are being disposed off by this common judgment as all the four appeals arise out of conviction and sentence, dated 16/17.03.1999, recorded by Shri Bijay Kumar Verma, Additional Sessions Judge, III, Rohtas at Sasaram, in S. Tr. No. 652 of 1996 arising out of Bikramganj P.S. Case No. 27 of 1996 for offence under Section 395 of the Penal Code. 3. All the appellants have been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years each. However, no separate sentence has been passed for offence under Section 412 of the Penal Code. 3 4. The prosecution case, as alleged in the fardbeyan by the informant, Laxman Singh, P.W. 3, that between the night of 18th and 19th February, 1996, while hw was sleeping then he heard the sound and got up and saw 4-5 persons breaking open the boxes and it is alleged the accused persons looted away the articles. 5. On the basis of fardbeyan, the first information report lodged. However, the first information report is against unknown. During the trial the police apprehended some of the suspects and the test identification parade was conducted and in the said test identification parade Kedar Paswan, Ram Parvesh Sonar and Sharma Mushar were identified by some of the witnesses. During the investigation some of the articles were recovered on the confessional statement of the co-accused persons and then after search the police seized some articles from the house of Suraj Ram, Kedar Paswan, Bhushan Giri and Chiteshwar Giri. The seizure lists (Exhibits 6 series) prepared with regard to the articles recovered on 28.02.1996, 29.02.1996 and 20.02.1996 respectively. The police after investigation submitted charge sheet. 6. During the trial fifteen witnesses examined on behalf of the prosecution. P.Ws. 1, 3 and 4 supported the prosecution case about the dacoity and claimed to have identified the dacoits in the lights of electric bulb as well as lamp. P.Ws. 1, Bagmati Devi, has identified the appellant, Ram Parvesh Sonar, P.Ws. 3 and have identified the appellants, Ram Parvesh Sonar and Kedar Paswan. P.Ws. 1, 3 and 4 also participated in the test identification parade and 4 identified the appellants, as mentioned above. P.W. 13 is the Judicial Magistrate who conducted the test identification parade of the suspects and has proved the test identification chart, which mentions that Sharma Mushar, Kedar Paswan, Ram Pravesh Sonar, Bhushan Giri and Chiteshwar Giri were put on test identification parade and six witnesses participated in test identification parade out of which Laxman Singh identified Ram Pravesh Sonar and Kedar Paswan, Bagmati Devi identified Ram Pravesh Sonar, Sharda Devi (not examined) identified Sharma Mushar, Kedar Paswan and Ram Pravesh sonar, Parvati Devi identified Ram Pravesh Sonar and Kedar Paswan. However, having regard to the fact that Sharda Devi having not been examined, hence, her identification in test identification parade has no consequence. However, from the evidence of this P.W. 3 it is apparent that though the co-accused, Sharma Mushar, Bhushan Giri and Chiteshwar Giri have been put on test identification parade, but, they were not identified by P.W. 3. However, the investigating officer, P.W. 14, has proved Exhibit 6 series and has deposed that the looted articles were recovered from the houses of Sharma Mushar, Bhushan Giri, Suraj Ram, Kedar Paswan and Chiteshwar Giri for which seizure list was prepared and marked as Exhibit 6 series. The said articles were put on test identification parade by P.W. 15, the Anchan Adhikari, and though Laxman Singh, Parvati Devi and Sharda Devi participated in the said test identification parade and identified the articles which were subject matter of the seizure list as from the list of articles prepared in test identification chart as well as the seizure list, 5 witnesses have identified those articles, which have been marked as Exhibits 1 to 1/14. 7. The trial Court, took into consideration the fact that the occurrence took place in between the night of 18th-19th February, 1996. The articles, seized, were recovered just after the occurrence on 29.02.1996. The trial Court held that Ram Pravesh Sonar and Kedar identified by three witnesses’ during dacoity and from possession of other appellants the looted articles were recovered just after the occurrence, hence, the presumption that other appellants participated in dacoity and, hence, convicted all the appellants for offence under Sections 395 and 412 of the Penal Code. 8. The learned counsel for the appellants, however, contends that the means of identification has not been specifically stated and, further, the conviction under Section 395 of the Penal Code has been recorded against the appellants even though they were put on test identification parade were not identified by witnesses and, hence, merely because some articles were recovered from their possession and those articles were house hold articles and, hence, the conviction under Section 395 of the Penal Code regarding the appellants other than Ram Pravesh Sonar and Kedar Paswan is not sustainable and it has, further, been contended that the occurrence is of the year 1996 and the appellants have suffered and, hence, a lenient view may be taken regarding the sentence. 9. However, taking into consideration, the evidence since three witnesses have identified Ram Pravesh Sonar and two witnesses 6 have identified Kedar Paswan and with regard to the two appellants test identification parade was conducted by P.W. 13 they in their statements have specifically stated that they were identified in the light of electricity and the lamp, hence, submissions that means of identification has not been established does not stand to reason. There is specific evidence of witnesses about the participation in the dacoity in the evidences of the witnesses and P.W. 13, the Judicial Magistrate, has proved the test identification chart and conducted the test identification parade where the two appellants were identified by the witnesses and, hence, this identification is corroborated by evidence of P.W. 13. 10. The second submission that the appellants other than Ram Pravesh Sonar and Kedar Paswan are concerned, they were put in test identification parade, but, were not identified by the witnesses as it is apparent from the evidence of P.W. 13, the Magistrate, who conducted the test identification parade has proved the test identification chart marked as Exhibit 3, which specifically mentions that Sharma Mushar, Kedar Paswan, Bushan Giri and Chiteshwar Giri were put on test identification parade and the witnesses Laxman, P.W. 3, Bagmati Devi, P.W. 1, and Parvati Devi, P.W. 4, participated in test identification parade, but, identified only Ram Pravesh Sonar and Kedar Paswan and they did not identify the other appellants like Sharma Mushar, Suraj Ram, Bhushan Giri and Chiteshwar Giri and though the recovery even just before the occurrence, but, the appellants having not been identified by these witnesses their 7 conviction under Section 395 of the Penal Code does not appear to be proper and this view stand substantiated in decision report in A.I.R. 1978 S.C., 1390 (Shankaria Vrs. State of Rajasthan) and, hence, the conviction of Sharma Mushar, Suraj Ram, Chiteshwar Giri and Bhushan Giri for offence under Section 395 of the Penal Code does not stand and is set aside. 11. However, the conviction of Ram Pravesh Sonar and Kedar Paswan having three and two identifications followed with the identification in test identification parade and test identification chart having been proved by P.W. 15 and, hence, the conviction of Ram Pravesh Sonar and Kedar Paswan for offence under Section 395 of the Penal Code stand confirmed. 12. Having regard to the fact that the articles were recovered from the possessionof appellants, Suraj Ram, Kedar Paswan, Bhushan Giri, Chiteshwar Giri and Sharma Mushar, which have been recovered and for which the seizure list, Exhibits 6 series, have been prepared with regard to the recovery on 28.02.1996, 29.02.1996 and 20.02.1996 and those articles having been put in test identification parade and were not identified and those articles having been identified in Court, hence, their conviction for offence under Section 412 of the Penal Code is confirmed. However, having regard to the fact that Ram Pravesh Sonar convicted under Section 395 of the Penal Code and Kedar Paswan convicted under Sections 395 and 412 of the Penal Code and they have remained in jail for about more than four years and the other appellants, concerned, Sharma Mushar has 8 remained in jail for about more then three years, Bhushan Giri, for about one year, Chiteshwar Giri for about one and half years and Suraj Ram for six months and since the occurrence is of the year 1996, hence, ends of justice shall meet by sentencing the appellants for the period already undergone. 13. The appeals are allowed in part with modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 02nd day of December 2011, N.A.F.R., S.A.