Criminal Appeal (SJ) No.166 of 2007 Against the judgment of conviction dated 23.12.2006 and order of sentence dated 26.12.2006 passed by Additional District Judge, Fast Track Court No.V, Nalanda at Biharsharif in Sessions Trial No.508 of 2006. 1. MD.LADDU @ LADDU MAMMA & 2. MD. SULTAN.... .... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT With Criminal Appeal (SJ) No. 209 of 2007 MD.BIKKI @ SURKHAB @ MD.SURKHAB @ BIKKI .... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: S/Sri S.N.Prasad, & Raj Kishore Prasad, Advocates. 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 These two appeals arise out of the judgment dated 23.12.2006 passed by the learned Presiding Officer of Fast Track Court No.V, Nalanda in Sessions Trial No.508 of 2006 by which the appellants were held guilty of committing offence under Section 392 IPC and 2 each of them was directed to undergo rigorous imprisonment for five years. Appellant Md. Laddu alias Laddu Mamma was also held guilty of committing the offence under Section 411 IPC and was directed to suffer rigorous imprisonment for three years. 2. The case related to an occurrence dated 06.12.2005 at about 10.15 P.M. when the informant P.W.1 Raju Mishra, a journalist, was coming back from his work place with his companion journalist Deepak Kumar Vishwakarma(P.W.3)by a motorcycle. When they had reached near Dhaneshwarghat they were made to stop by some criminals who also attempted to fire at them. The informant was given a blow with the butt of the pistol as a result of which he was injured on his face. He ran away from there and came to Biharsharif hospital for treatment. But prior to that, the miscreants took away his identity card and Rs.200/- cash from him. The informant claimed that while being treated in the hospital, he came to learn that the criminals had also robbed Amresh Kumar(P.W.2) at the same place and had relieved him of his cellular phone as well. 3 3. The case was registered on the fardbeyan of P.W.1 Raju Mishra and investigation was under taken by the investigating officer who after completing the same sent up seven accused persons for trial and accordingly, they were tried by being charged of committing offences under Sections 395 and 397 IPC. 4. After considering the evidence of as many as nine witnesses, the learned trial court acquitted the four accused persons and held the three appellants guilty of committing the offences as noted earlier. 5. So far as the conviction of appellant Md. Bikki @ Surkhab @ Md. Surkhab @ Bikki is concerned, it is based on the solitary evidence of identification of the two appellants by P.W.1 by the first time in court. It has been contended by making reference to AIR 1983 SC 367 Md. Abdul Hafeez Vrs. State of Andhra Pradesh that the date of occurrence being 06.12.2005 and there being no holding of test identification parade, the witness was identifying the two appellants for the first time in court after about nine months of the occurrence when he was deposing before the learned 4 trial Judge on 28.07.2006. Under the similar circumstances, the evidence of identification for the first time in court was rejected by the Apex Court in the above noted case and the appellant was acquitted. 6. On perusal of the evidence of P.W.1, I find that he claimed to have identified appellant Md. Sultan and Md. Bikki @ Surkhab @ Md. Surkhab @ Bikki and had specifically stated that Md. Surkhab fired a shot which misfired. It was contended by pointing out the evidence in the same paragraph-13 of P.W.1, that he has stated that the accused persons had concealed their identities by a cloth. The contention therefore was that if the identities were concealed and if the appellant was not known from before to the witness P.W.1, then the evidence of identification for the first time in court could never be accepted. 7. I am in complete agreement with the learned counsel appearing for the appellants that the identification of Md. Sultan and Md. Bikki for the first time in court could not be accepted inasmuch as no test identification parade was held and the witness 5 was giving the evidence on identification of the two appellants for the first time in court and that too after about nine months of the occurrence. That evidence of identification, therefore, is suspect. 8. So far as the conviction of Md. Laddu alias Laddu Mamma is concerned the evidence on record indicated that his house was searched and cellular mobile phone of Samsung make containing the SIM card bearing no.969431686972 was recovered from his house. The evidence on record indicates that the recovered cellular phone set was put on test identification parade which was over seen by P.W.4, the Block Development Officer, after being mixed with similarly look other mobile sets. P.W.2 Amresh Kumar was invited to identify his cellular phone and he correctly picked up the phone and identified the same. For verifying the identification of the cellular phone further, the officer overseeing the test identification parade of the property had enquired about certain numbers which had been saved in the memory of the SIM card and P.W.2 correctly stated some of the names against whom some 6 numbers were saved, thus establishing the ownership of the cellular phone of P.W.2. Thus, not the evidence raises a presumption against appellant Md. Laddu alias Laddu Mamma that he was being either a thief or was a retainer of the theft property as per Section 114(a)of the Evidence Act and in that view the conviction of the appellant Md. Laddu alias Laddu Mamma for offences under Section 392 and 411 IPC appears perfect. However, it is well known that once an accused has been convicted of theft it is not always necessary that substantive sentences of imprisonment be passed for retaining or being found in possession of the theft property as such the sentences passed upon appellant Md. Laddu alias Laddu Mamma under Section 411 IPC could not be sustainable. Thus, the conviction and sentence passed upon the appellant Md. Laddu alias Laddu Mamma is modified to that extent. 9. So far as the appellants Md. Sultan and Md. Bikki @ Surkhab @ Md. Surkhab @ Bikki is concerned, those appeals are allowed by acquitting the two appellants, namely, Md. Bikki @ Surkhab @ Md. 7 Surkhab @ Bikki and Md. Sultan by acquitting them of the charge under which they had been convicted. As Md. Bikki @ Surkhab @ Md. Surkhab @ Bikki is on bail, he shall stand discharged from the liabilities of his bail bond. 10. On account of dismissal of appeal of Md. Laddu alias Laddu Mamma, he shall surrender and serve out the sentence under Section 392 IPC. Patna High Court, Dated, the 17th day of August, 2011, Brajesh Kumar/NAFR (Dharnidhar Jha,J.)