Criminal Appeal (SJ) No.148 of 1997 Against the judgment and order dated 13. 05. 1997 and and order of sentence dated 14. 05. 1997, passed by Shri Jaleshwar Ram, additional Sessions Judge, Kishanganj, in Sessions Trial No. 209 of 1996/ Tr. No. 15 of 1996. 1. Raitu Mohammad . 2. Hakeem Mohammad. Both sons of Fakat Mohammad. Resident of Village- Batiapara, P.S. Islampur, District- West Deenajpur, West Bengal. 3. Imamuddin, son of Sarwar Ali, Resident of Village- Chhotgachh, P.S. Islampur, District- West Deenajpur, West Bengal. 4. Pesh Mohammad, son of Kalimuddin, Resident of Village- Jharbari, P.S. Pothia, District- Kishanganj. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Asoka Jang Bahadur,Advocate. Mr. Rashid Alam, Advocate. Mr. Anis Akhtar, Advocate. Mr. Anif Daula Siddiqui, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. = PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 395 of the Indian Penal Code sentenced to undergo rigorous imprisonment for seven years. 3. Learned counsel for the appellants however, 2 contends that this is a case of dacoity in the night of 06. 01. 1995, while the informant along with his family members were sleeping in the house 20-25 persons open the tatti fence and entered into Angan and committed dacoity. Seven persons have been named in the Fardbeyan on the basis of which F.I.R. was lodged and after investigation charge sheet submitted. However, only two out of seven named in the F.I.R. were charge sheeted and other were not sent up. Two persons Madan Mohan and Bhobha @ Manglu showing in the column ‘not sent up’. 4. During investigation, some suspects were arrested and put on Test Identification Parade in which some of them were identified by the informant. Subsequently, charge sheet submitted. 5. However, during trial eleven witnesses were examined as witnesses. Out of which P.W. 9 and 11 are Judicial Magistrates who conducted Test Identification Parade. P.W. 10 is I.O. 6. However, P.W. 9 and 11 has stated that in Test Identification Parade, appellant no. 1 and 2 identified by five witnesses and appellant no. 3 and 4 identified by two 3 persons. However, during trial, P.W. 9 and 11 the Judicial Magistrates who conducted Test Identification Parade has proved that five witnesses have identified each of the appellant nos. 1 and 2 and two witnesses have identified appellant nos. 3 and 4 each. 7. However, witnesses 1 to 8 who are material witnesses do not identify the accused persons in the court. Witnesses 1 and 7 have been declared hostile by prosecution. However, P.W. 8 the informant, though, not declared hostile but has not identified the accused persons in Court. Accused Gera Mian, though, named in Fardbeyan was not identified in the Test Identification Parade nor in the court and other accused Leda Mian though has been identified by only one, but was given benefit of doubt. 8. However, learned counsel for the appellants submits that, though, appellants have not been identified in court and hence substantive evidence are missing and evidence of witnesses in the Test Identification Parade has got only corroborative value and is not substantive evidence. Conviction on the basis of Test Identification Parade is not sustainable. However, learned lower court 4 has convicted the accused on the basis of identification in Test Identification Parade relying on decision of Hon’ble Supreme Court reported in 1996 (4) Criminal Law Journal page 3585. However, it is a case of train dacoity, one culprit was arrested. The said culprit was identified during the Test Identification Parade conducted by the Magistrate. However, witnesses did not chosen to identify in trial due to fear. However, at this juncture during evidence trial court got his remark as to the demeanor of the witness that witness was afraid by the accused as he was trembling stair and it has become evident to record recognition of the trial and in that facts and circumstance trial court as well as High Court relied upon by the statement of the Magistrate who had conducted Test Identification Parade that the witness has identified the appellant before whom identification parade was done and hence, prosecution case proved beyond doubt. 9. Learned counsel for the appellants however, contends that two facts required to be taken into consideration to distinguish the decision that there is no demeanor recorded by the Judge of the witness examined about their being afraid or trembling out of fear and 5 witnesses 2 to 8 have declared hostile and witness no. 8 who is informant has also not supported the prosecution case with regard to other and witnesses also identifying in Test Identification Parade have not specifically stated about what specific role of accused in committing dacoity. 10. Learned counsel for the appellants however, contends that witnesses claimed to have identified the accused persons in torch light and I.O. has not seized the torch light. Hence identification of appellants is doubtful. 11. Hence having regard to the submissions of the parties it is apparent that in the case, eight material witnesses examined did not identify the appellants in court and hence the substantive evidence about identification of appellants is missing. However, the identification in Test Identification Parade is secondary evidence. However, in decision reported the evidence in Test Identification Parade was taken substantive evidence when the court in evidence marked the demeanor that the witness was trembling under fear. However, under the facts and circumstance when majority of the witnesses not supported the prosecution case about identification and there is no demeanor recorded, hence the principle can not 6 be applied. 12. Hence under the facts and circumstances prosecution has not been able to prove the charges and hence order of conviction and sentence recorded by the lower court is hereby set aside and appeal is allowed. Patna High Court, The 18th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)