Criminal Appeal (SJ) No.37 of 1999 **** Against the judgment, dated 04.01.1994, passed by Shri Bipin Dutta Pathak, Additional Sessions Judge, II, Aurangabad, in S. Tr. No. 87 of 1998/55 of 1998 **** 1. Kunu Mushar, son of Budhan Mushar, resident of village Singhpur, P.S. Dumriya, district Gaya 2. Bithal Mushar, son of Rehadn Musahar, resident of Bhera, P.S. Goraru, district Gaya 3. Krishna Mushar, son of Ganeshi Mushar 4. Indradeo Mushar, son of late Tilok Mushar Appellants 3 and 4, both are residents of Pawai, P.S. and district Aurangabad 5. Baban Mushar, sonof Koyali Mushar, resident of Chorha, P.S. Simra, district Aurangabad (Bihar) 6. Bhuar Mushar, son of Maha Mushar, resident of Sindhpur, P.S. Dumriya, district Gaya 7. Munna Mushar, son of Sukan Mushar, resident of Katwar, P.S. Deo, district Aurangabad (Bihar) .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Dhirendra Kr. Sinha, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. The appellants have been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for five 2 years. 3. The prosecution case, as alleged by the informant that while the informant was sleeping at his house along with his family members on 07.11.1996 then at about 12 in the mid night he heard some sound at his darwaza. It has been stated that his father was sleeping at darwaza and he along with his brother, mother, wife and bhabhi was sleeping inside the room. On the said sound he and his brother got up. His brother fled away scaling door since the dacoits have come in their house. In the meantime, the dacoits broke open the door and ransacked the house, looted the articles, clothes and utensils. They were 6-7 in numbers and he saw the accused persons in the light of lantern. 4. On the fardbeyan, the first information report lodged and after investigation charge sheet submitted, cognizance taken. After commitment the charge was framed under Sections 395 as well as 412 of the Penal Code against the accused persons (appellants). 5. During the trial seven witnesses were examined out of whom P.Ws. 3, 2 and 1 respectively are material witnesses. P.Ws. 4 and 5 are the Judicial Magistrates, who conducted the test identification parade during the investigation and P.Ws. 6 and 7 are the formal witnesses. 6. The documentary evidence adduced are Exhibit “1”, the test identification parade chart and report, Exhibit “1/1” the signature of the witnesses, Exhibit “2” test identification parade report, Exhibits “3” and “3/1” the signatures of the witnesses, Exhibits “4” and “4/1” seizure list and Exhibit “5” test identification parade of seized articles. 7. P.W. 1, the mother of the informant, stated that she has not identified the accused though supported the factum of dacoity. Further 3 P.W. 2 has also supported the commitment of dacoity and has even participated in test identification parade with regard to the identification of articles taken in dacoity recovered during the investigation. P.W. 3 is the informant have also supported the factum of dacoity and claimed to have seen the dacoits and claimed to have identified the appellants (the accused persons) in test identification parade and has also stated that he identified the articles looted in dacoity in test identification parade conducted by the authorities. However, P.W. 3 has stated that he had seen the face of the accused persons, but, has not identified the accused persons in dock. P.Ws. 4 and 5 are the Judicial Magistrates, who have conducted the test identification parade of the accused persons. The test identification parade of two appellants has been conducted by P.W. 4 and test identification parade of five persons has been conducted by P.W. 5 and P.W. 2 had identified the accused persons in test identification parade conducted by P.Ws. 4 and 5. P.Ws. 4 and 5 have stated that they have proved the test identification chart, Exhibits “1”, “1/1”, “2” and “2/1”. P.Ws. 6 and 7 are the formal witnesses who have formally proved the seizure list. 8. The trial Court, however, taking into consideration the fact that the appellants have not been identified the accused in Court, however, take into consideration the fact that since test identification parade has not been challenged and this witness has stated in his evidence that he had identified the accused persons in test identification parade, hence, convicted the appellants and the prosecution case has been able to prove the case under Section 395 of the Penal Code. However, acquitted the appellants from charge under Section 412 of the Penal Code, however, 4 one Satyendra Mushar has not been identified in the test identification parade. The trial Court held that the prosecution has not been able to prove the charge under Section 412 of the Penal Code. 9. The learned counsel for the appellants, however, contended that the prosecution having not been identified in the Court, hence, the substantive evidence regarding the identification of the appellant is missing and the evidence in test identification parade is only corroborative in nature, hence, convicted on the basis of identification of test identification chart is not sustainable. 10. The learned counsel for the State, however, supported the order of conviction and sentence. 11. However, taking into consideration the fact that the prosecution case is that accused persons came and committed dacoity, however, the first information report is against unknown, seven witnesses have been examined in this case, however, P.Ws. 1, 2 and 3 are the only witnesses who have identified the appellants, hence, this is a case of single identification and only single witness has identified the seven appellants in the test identification parade. However, in the test identification chart Exhibits “1” and “2”, it has been stated that mere identifying by the witness that he saw all the accused who had participated in committing the dacoity. However, this witness has not stated what specific role was being performed by them separately, when he identified them, hence, there is no evidence that what act of commission and omission was being made by appellants P.W. 3 identifying the appellants. More over, P.W. 3 has not identified the appellants in Court and he has stated in his evidence in paragraph 4. In paragraph 6 he is unable to remember and recall that 5 whether he has identified the appellants or not. However, it is pertinent to mention that the identification of the appellants in Court is only substantive evidence and, however, the test identification parade conducted by the Magistrate is not a sustainable and it has only corroborative value, hence, when the substantive evidence is missing corroborative evidence lost it’s importance. More over, having regard to the fact that this witnesses stated that the accused persons were covering their face by towel and there is no sufficient assertion that when he identified the appellants, hence, the identification of the appellants becomes doubtful. More over, there is no cogent, reliable and unimpeachable evidence with regard to identification of the appellants, hence, I find and hold that prosecution has not been able to establish the charge beyond reasonable doubts. 12. Hence, the order of conviction and sentence, recorded by the lower Court is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 18th day of November, 2011, N.A.F.R., S.A.