Criminal Appeal (SJ) No. 244 of 1998 With Criminal Appeal (SJ) No. 342 of 1998 ~~~~~~ Against the judgment of conviction and order of sentence dated 22.06.1998 respectively passed by Sri Ram Narayan Singh, learned Additional Sessions Judge – 4th, Purnia in Sessions Case No. 152 of 1985, Tr. No. 57 of 1996. ~~~~~~ 1. Amrendra Kumar Mahto, Son of Sri Mishri Pd. Mahto, resident of village – Baniapatti, P. S. – K. Nagar, District – Purnea. 2. Anil Kumar Gupta, Son of Late Adhiklal Pd. Gupta, resident of village – Baniapatti, P. S. – K. Nagar, Distt. – Purnea. .... .... Appellants (Criminal Appeal (SJ) No. 244 of 1998). ~~~~~~ Bijo Muni, Son of Late Mohan Muni, resident of village – Baniapatti, P. S. – Krityanand Nagar, District – Purnea. .... .... Appellant (Criminal Appeal (SJ) No. 342 of 1998). Versus The State Of Bihar .... .... Respondents. ~~~~~~ Appearance : For the Appellants : Mr. Gyanand Roy, Advocate. Mr. Sheo Nandan Mishra, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. These two appeals have been heard together and are being disposed of by the common judgment as both arise out of the same judgment passed by Sri Ram Narayan Singh, learned Additional Sessions Judge – 4th, Purnia in Sessions Case No. 152 of 1985, Tr. No. 57 of 1996. 3. The appellants have been convicted for the offence under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The case concerns with the road robbery and there is allegation that while they were 2 proceeding on truck they were apprehended and the articles were looted and the prosecution party claimed to have identified the appellants in the torch light as well as in the truck light. 4. The FIR was lodged against unknown. On the First Information Report, the investigation proceeded and during the trial some of the accused persons were apprehended and the Test Identification Parade was conducted. During the Test Identification Parade P. W. 2 identified the appellants. P. W. 3 identified only one of the appellants. 5. During the trial four witnesses were examined. P. Ws. 1 and 4 are the Judicial Magistrate who conducted the Test Identification Parade and proved the T.I. Chart marked as Exts. 1 and 1/1 and P. W. 3 identified one appellant and P. W. 3 identified three appellants. The trial court convicted the appellants on the basis of the identification and evidence of dacoity and sentence as above mentioned. 6. The learned counsel for the appellants challenged the order of identification by witnesses, which is not reliable to base conviction. 7. P. W. 1 and P. W. 4 are the Judicial Magistrates who conducted the Test Identification Parade and have proved the Test Identification Chart, which has been marked as Exts. 1 and 1/1 for the T.I.P. conducted on 23.07.1981 and 27.07.1981 respectively. In Test Identification Chart Ext. 1 the accused Amarendra Kumar Mahto, Bijo Muni and Anil Kumar Gupta were identified by P. W. 2. However, the Test Identification Parade was conducted for the same set of accused on 27.07.1981 and P. W. 2 was again to participate in Test Identification Parade. P. W. 2 again participated in the Test Identification Parade and identified Amrendra Kumar but did not identify the other appellants to whom he identified on 23.07.1981. P. W. 3 identified Bijo Muni in Court but with regard to the rest of the appellants he stated that he does not remember whether he had identified the other appellants. 3 8. P. W. 3 in his cross-examination in para 9 stated that he along with Shambhu Babu P. W. 4 went out with Daroga. Bijo Muni was wearing his watch then he was caught. On his confession the articles were recovered from forest. Bijo Muni were caught in the night of the occurrence. They came to police station. However, neither Test Identification Parade chart nor the article seized has been brought in evidence nor the recovered article produced. Hence, the identification of Bijo Muni in Test Identification Parade lost its signification when Bijo Muni was caught before P. W. 3 by police with the wrist watch but wrist watch was not brought in evidence. Hence, the identification of Bijo Muni lost its significance. 9. P. W. 2, however, has stated in his evidence that he visited Purnea jail thrice and on the first occasion he identified five persons and on the second and third time he identified only one person and claimed that all the five persons in dock including the appellants were identified by him in the Test Identification Parade and they had committed dacoity. However, in his evidence he has not stated that out of five persons what role was being committed by these appellants at the time when he identified the appellants. Moreover the evidence of P. W. 3 that along with Shambhu Babu this witness P. W. 2 and Daroga has caught Bijo Muni. However, this witness claimed that he went to attend the jail in Test Identification Parade thrice but the evidence of the Magistrate only indicates that he only visited the jail twice with regard to the same set of the accused and for the first time he identified Bijo Muni and Anil Kumar Gupta and did not identify Amrendra Kumar Mahto when Amrendra Kumar Mahto was suspected on the occasion. Further on the second occasion the same set of the accused were put on Test Identification Parade and he identified Amrendra Kumar Mahto but he did not identify Bijo Muni and Anil Kumar Gupta and hence it castes a serious doubt about the identification of accused person by this witness. However, no explanation about 4 the occasion to allow P. W. 2 to participate in Test Identification Parade again on 27.07.1981 was given. Hence, under the facts and circumstances, it is not safe to convict the appellants on the single identification of P. W. 2, which suffers, from several infirmities and this evidence on identification casts serious doubt. Hence, I find and hold that the prosecution has not been able to prove charges beyond reasonable doubt. Hence, I acquit the appellants of the charges. The order of conviction and sentence recorded by the lower court is set aside. Hence this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 23rd September, 2011. N.A.F.R./Kundan.