Criminal Appeal (SJ) No.123 of 1996 Against the order and judgment dated 30th April, 1996 passed by Shri Abhijit Sinha, VIth Additional District & Sessions Judge, Chapra in Sessions Trial No. 463 of 1993. 1. Lal Baby Rai, S/O. Jagarnath Rai, R/O. Village – Sadpur, P. S. – Garkha, Distt. – Saran. 2. Sharwan Lal Shrivastava, S/O. Kanhaiya Prasad, R/O. – Maisa, P. S. – Amnarkothi, Distt. – Saran. 3. Sahadat Husain, S/O. Md. Israil, R/O. – Village – Olanpur, P. S. – Marhaura, Distt. – Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondents. ------------ For the Appellant/s : Mr. Ambika Bhagat, Advocate. Mr. Kamal Kumar Sinha, Advocate. For the Respondent : Mr. Sunit Kumar Sinha, A. P. P. -------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard. 2. The appellants have been convicted under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case is that while the informant was going with his truck then the truck was apprehended and they were looted of the articles. On the fardbeyan of the informant, the First Information Report was lodged. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of sessions. During the trial nine witnesses have been examined and after considering the oral and documentary evidence the appellants were convicted and hence the appeal. 4. Learned counsel for the appellants, however, contended that the appellants have been convicted on the basis of two identifications but the witnesses did not identify the appellants in court and the order of conviction has been recorded on the 2 basis of the identification in the Test Identification Parade. However, the identification of the appellants in the Test Identification Parade is not substantive evidence and has only a corroborative value and hence the order of conviction and sentence is not sustainable. 5. Learned counsel for the State, however, submitted that the order of conviction is sustainable. 6. However, the question for consideration is whether the conviction and sentence sustainable and the prosecution has proved the charges leveled against them beyond reasonable doubt. 7. Learned counsel for the appellants do not challenge the order of conviction, however, challenged the implication of the accused persons and identification of the accused. However, there are two identifications in this case, P. W. 4 and P. W. 6. However, P. W. 4 has stated in his evidence that five persons were standing in the dock during the trial. He did not identify and since the occurrence is of much earlier time he could not say whether the accused persons were the person who had committed the crime or not but he had identified the accused in jail correctly. P. W. 6 in his evidence has also stated that he is unable to identify the accused in dock as the occurrence is in different place as several years have elapsed but claimed that he had identified the accused in jail. 8. However, the identification of the accused during the evidence and trial is substantive evidence with respect to identification of the accused that not having been done in Test Identification Parade has got only corroborative value. 9. However, having regard to the facts and the substantive evidence missing, the corroborative evidence cannot substitute non-identification of the accused in dock giving a suspicion and in such circumstances the benefit of doubt of always due to accused and not due to prosecution. 3 10. Hence, having regard to the facts and circumstances since none of the witnesses identified the accused in dock during the trial and Test Identification Parade chart cannot substitute for the substantial evidence and hence the appellants are entitled for the benefit of doubt, hence, I do not find the order of conviction and sentence recorded by the learned lower court in the absence of substantial evidence as the appellants have not been identified by the witnesses during evidence and trial sustainable and hence the order of conviction and sentence is hereby set aside. Hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 1st July, 2011. N.A.F.R./Kundan.