IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.439 OF 2008 Against the judgment of conviction dated 29.04.2008 and order of conviction dated 30.04.2008 passed by Additional District & Sessions Judge, Fast Track Court-V, Nawadah in Sessions Trial No.30 of 2007/14 of 2007. 1. VIJAY KUMAR, Son of Sri Dular Chand Prasad, 2. SANJAY KUMAR, Son of Sri Dular Chand Prasad, Both resident of Mohalla Navin Nagar, P.S.Nawadah Town in the district of Nawadah. 3. MANOJ KUMAR, Son of Sri Durga Prasad, Resident of Mohalla Ghurla Chak, P.S.Warsaliganj in the district of Nawadah. -------- Appellants Versus State Of Bihar.... .... Respondent For the Appellants: S/Sri Sushil Kumar Singh, Binod Kumar, V.P.Tulsi, Advocates. For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J After being charged with the commission of offences under Sections 395 and 397 IPC, the appellants were put on trial in Sessions Trial No.30 of 2007/14 of 2007 by the learned Presiding Officer of Fast Track Court-V, Nawadah. By judgment dated 29.04.2008, the appellants were found guilty of committing the two offences. The learned trial Judge heard the appellants under Section 235 Cr.P.C. and directed each of them to suffer rigorous imprisonment for ten years as also to pay 2 a fine of Rs.5,000/- each, else to suffer simple imprisonment for six months more. The learned trial Judge did not inflict any separate sentence under Section 395 IPC. The three appellants appeal to this Court challenging the judgment of conviction and order of sentence. 2. Undisputedly, a dacoity was committed in the house of P.W.4 as he and his wife were injured and properties were plundered. They claimed to identify the culprits if they had the opportunity of seeing them and narrated the identifying features of the criminals to the police while lodging the report. 3. In due course the three appellants were arrested on 01.09.2006 and remanded in the case and lastly, were put on test identification parade which was conducted by P.W.3, a Judicial Magistrate on 09.11.2006. P.Ws.2 and 4 who are the wife and husband respectively, out of whom P.W.4 was the informant identified the three appellants claiming that they had committed the offence. A third witness also participated in the test identification parade but he did not identify any of the three appellants as may appear from the evidence of P.W.3 and the relevant record Ext-3 which is the test identification parade chart. 4. A solitary contention was forwarded before the court, it was contended that during the period of one 3 month and ten days, the appellants were produced from judicial custody before the Magistrate for passing remand orders on five occasions and there was no evidence on record that there was a compliance of Rule 236(8)of the Bihar Police Manual,1978. Contention further was that there was no evidence that the identities of the appellants were concealed by police by properly taking precaution in that behalf so that there was no chance of any identifying witness seeing any of the appellants so as to identifying any of them at the future test identification parade. 5. From the record maintained by the Magistrate, the above argument is borne out that the appellants were remanded on 01.09.2006 in the case and the test identification parade was held on 09.11.2006 which may appear from Ext-3, the test identification parade chart as also from the evidence of P.W.3. The judicial record indicates that from 01.09.2006 to 09.11.2006 there were five productions of the three appellants before the Magistrate for passing remand orders and there is no evidence anywhere on the record that the police had taken appropriate steps for concealing the identities of the appellants so that they were not seen by any of the witnesses who were to participate in the test identification parade. Rule 236(2)of the Bihar Police Manual,1978 clearly indicates that precaution has to be 4 taken while taking the accused to and fro from the court and the jail so that no one is able to see the accused persons and as such the need of taking them into a closed vehicle. The same sub-rule indicates that if such a vehicle was not available then the faces of the suspected accused persons was to be covered in such a way that they could not be recognized by the prospective witnesses. I have already indicated that there is a complete lack of evidence that there was a compliance of the provisions of Rule 236 of the Bihar Police Manual and precautions were duly taken by the police or other agency while bringing the three appellants to court from jail custody on different dates for remand purposes. Moreover, the delay in holding the test identification parade after about two months also goes to the root of the matter as it has been repeatedly held that the delay in holding the test identification parade makes the evidence of identification suspect. This has properly been recognized by the same rule 236(8)of the Bihar Police Manual,1978. 6. It is true that P.Ws.2 and 4 who are the wife of the informant and the informant himself have claimed to have participated in the test identification parade and to have identified the three appellants which evidence is further corroborated by the evidence of P.W.3 but on account of the frailty which appears in the prosecution evidence as just pointed out, the court finds 5 that the evidence of identification could not be accepted on account of non-compliance of the provisions of the Bihar Police Manual governing the holding of test identification parade or production of the suspected accused before the court. That being the factual and legal position the appeal has to succeed and accordingly it is allowed. The judgment of conviction and sentence passed upon the appellants is hereby set aside. They are acquitted of the charge for which they were convicted. The three appellants are in custody. They shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 15th day of October, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)