Criminal Appeal (SJ) No. 224 OF 1996 Against the judgment and order dated 31st August, 1996 passed by Shri Satya Deo Prasad, Additional Sessions judge, Naugachia, District – Bhagalpur in Sessions Trial No. 632 of 1995. ARUNJAY KUMAR, Son of late Sita Ram Kumar, resident of village – Jairampur, Police Station – Bihpur, in the district of Bhagalpur. …………….. Appellant. Versus THE STATE OF BIHAR ..…………… Respondent. With CRIMINAL APPEAL (SJ) No. 235 OF 1996 RABINDRA CHOUDHARY, Son of Tribeni Choudhary, resident of village – Pakra, P.S. – Naugachhia, District – Bhagalpur. ……….. Appellant. Versus THE STATE OF BIHAR ….……... Respondent. ----------- For the Appellants : - Sri Akhileshwar Prasad Singh, Senior Advocate. Sri Gopal Prasad Roy, Advocate. Sri Ran Bir Singh, Advocate (Amicus Curiae). For the Respondents : - Sri Parmeshwar Mehta, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard. 2. No one appears on behalf of the appellant, namely, Rabindra Choudhary in Cr. Appeal (SJ) No. 235 of 1996. Sri Ran Bir Singh, Advocate, is appointed as amicus curiae to assist this Court in this 2 appeal and hence the Legal Services Committee of the High Court may proceed for the remuneration in this regard. 3. The above two appeals have been heard together and are being disposed of by the common judgment as both the appellants in the two appeals are convicted and sentenced by the same judgment and order dated 30th August, 1996 passed by Shri Satya Deo Prasad, Additional Sessions Judge, Naugachia, District Bhagalpur in Sessions Trial No. 632 of 1995 for the offence under Section 396 of the Indian Penal Code and the said sessions trial has arisen out of Naugachia P. S. Case No. 265 of 1994 bearing G. R. No. 612 of 1994. 4. The prosecution case as alleged by the informant, Md. Mojam Khan is that on 20.11.1994, while he was going on a rickshaw along with Mushan Khan from bus stand to Pakra Cattle Market and reached near banana orchard, one person came to them and got the rickshaw stopped and called six of his associates, on which both the informant and the deceased tried to flee away on which a firing was made. However, Mushan Khan was caught hold by the accused persons and the informant came after fleeing to Assam Road and met with the police party and disclosed about the occurrence. 5. On the fardbeyan of the informant the F.I.R. was lodged and the investigation proceeded, after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the 3 court of sessions. However, during trial a Test Identification Parade was conducted with regard to the three suspects. However, during the trial three witnesses were examined by the prosecution. P.W. 1, Md. Mojam Khan, the informant, P.W. 2, Sri Amrish Kumar Tiwary, the Judicial Magistrate Ist Class who conducted the Test Identification Parade and P.W. 3, Birendra Prasad Singh, Investigating Officer in this case. 6. The learned counsel for the appellants, however, contended that there is only one identification of both the appellants and both the appellants have only been identified by P.W. 1 in the Test Identification Parade. However, none of the witnesses has identified the appellants at the stage of trial during their evidence in court and hence there is no primary evidence or substantial evidence against the appellants. It has further been contended that three persons were caught during the investigation Test Identification Parade was conducted for the suspect, namely, Rabindra Chaudhary, Dhirendra Kumar Singh and Rakesh Kumar only. However, out of the three only Rabindra Choudhary was identified. 7. However, in the Test Identification Parade of the three suspects each suspect was mixed with the nine prisoners but the suspect of the case was not identified by the witness and instead of the suspect one of the prisoners, namely, Mr. Arunjay Kumar who was mixed with the 4 suspect was identified by the informant, Md. Mojam Khan and after his identification in Test Identification Parade was made an accused in the case and hence contended that Test Identification Parade has got no value as the appellant Arunjay Kumar was not the suspect in the case and the Test Identification Parade was not conducted for the identification of the suspect Arunjay Kumar and hence the Test Identification Parade loses its significance. It was further contended that even the identification of the accused in Test Identification Parade is not a substantial evidence and is not required to be relied upon when there is no substantive evidence as the evidence of Test Identification Parade is only corroborative and cannot be treated as substantial evidence to the fact that the conviction of the Test Identification Parade chart having been proved by the Judicial Magistrate. 8. Having heard the submissions of the learned counsel for the State and learned counsel for the appellants and on perusal of the record, it is apparent that there are three witnesses P. W. 1, the informant, Md. Mojam Khan, P.W. 2, Sri Amrish Kumar Tiwary, the Judicial Magistrate Ist Class who conducted the Test Identification Parade and P.W. 3, Birendra Prasad Singh, Investigating Officer in this case and hence the only witness is P.W. 1 with regard to the occurrence. 9. However, P. W. 1 has not identified the appellants present in court during his evidence. He has stated that he was going by ricksaw 5 and then he was apprehended by one person who called six of his associates who resorted to firing and then he started fleeing away. In the mean time police came and there was murder then he heard the murder of Mushan Khan. He has further stated in his evidence that he do not identify two accused in dock and hence this witness has not identified the appellants and this witness has been declared hostile and hence none of the appellants were identified during the trial to have committed the offence. P.W. 2 though has proved Test Identification Parade chart is of no significance as has only corroborative value. Hence, virtually there is no evidence against the appellants. The learned lower court misdirected itself in holding the appellants guilty for offence under Section 396 of the Indian Penal Code. Hence, the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appellants are discharged from the liabilities of their bail bonds, if any, and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 27th June, 2011. N.A.F.R./Kundan.