IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.158 OF 2008 Against the judgment of conviction and order of sentence dated 28.09.2007 passed by Additional Sessions Judge, Fast Track Court-III, Muzaffarpur in Sessions Trial No.64 of 1995. Nand Kishore Sahni, Son of Julum Sahni ---------Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Smt. Rina Sinha, Amicus Curiae For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J This appeal from jail has been preferred by the appellant Nand Kishore Sahni against the judgment of conviction dated 28.09.2007 by which the appellant was found guilty of committing offences under Sections 395 and 397 IPC and was directed to suffer rigorous imprisonment for ten years on each of the two counts. The appellant was also directed to pay a fine of Rs.5,000/- on account of being convicted under Section 395 IPC and in case of making default in payment of fine, the appellant was directed to suffer rigorous imprisonment for further period of three months. Sentences of imprisonment were to run concurrently. 2. There does not appear any dispute that the dacoity had taken place in the night intervening 10th and 2 11th of January, 1994 at about 2 A.M. in the house of P.W.3 Sataydeo Mishra. Cash in the sum of Rs.20,000/- and ornament valued at Rs.26,000/- were allegedly looted away and the informant was assaulted along with his brother. It was alleged that the informant snatched a country made gun from one of the dacoits and hit him on his shoulder whereafter the dacoits started running away. The informant, namely, Sataydeo Mishra(P.W.3)and Harikant Mishra(P.W.2)also started chasing the dacoits by raising hullah which attracted many persons who also joined the informant and others in chasing down the dacoits in which course, as per the allegation, the dacoits exploded a bomb which injured Baldeo Sharma(not examined). The informant found cartridges of 12 bore and .3154 lying near the verandah and handed them over to police. The informant claimed to identify the dacoits if he had seen them. 3. On the basis of the fardbeyan of P.W.3, the informant, the FIR was drawn up and the investigation was taken up. It appears from the record as also the judgment that the appellant was in custody in connection with Mushahari P.S.Case No.5 of 1994 and the police prayed for his production before the court in connection with the present case and, accordingly, he was produced on 29.01.1994. However, he was put on test identification parade after 60 days of his production in the present 3 case on 02.03.1994 in which he was identified by P.W.2 Harikant Mishra and P.W.3 Sataydeo Mishra, the informant. The police finding the material sufficient sent up the solitary appellant for his trial which ultimately ended in the impugned judgment. 4. Seven witnesses were examined by the prosecution. P.W.1 Deo Kant Mishra was the elder brother of P.W.3 Sataydeo Mishra but he deposed that he did not see anything due to his vision being impaired. P.W.2 is Harikant Mishra who is the younger brother of the informant and P.W.3 Sataydeo Mishra is the informant himself. P.W.4 was tendered whereas P.W.5 Subhash Prasad had proved the FIR Ext-2. P.W.6 Dr. Sunil Kumar had examined the three injured persons and had issued the reports Exts-3 to 3/2. P.W.7 Sri Hanuman Prasad Tiwary was the Judicial Magistrate who supervised the holding of test identification parade and prepared the test identification parade charts Ext-4 to 4/2. The investigating officer of the case was not examined. 5. The contention was that it is true that P.W.3 Sataydeo Mishra appears identifying the appellant in the test identification parade held on 02.03.1994 but in spite of the appellant being remanded on 29.01.1994 there was an enormous delay of 62 days in holding the test identification parade. It was contended that the two test identification parades were held earlier to 02.03.1994, 4 on 05.02.1994 and 22.02.1994, but the appellant was never put on those test identification parades. From 29.0.11994 till 02.03.1994, the appellant had been produced at least five times before the court for being remanded. As such, there were all possibilities that the appellant had been seen by the witnesses as there was no evidence on record indicating that there was a compliance with the provisions of Rule 236 of the Bihar Police Manual, 1978. Contention as such was that the evidence of identification was of no consequence as there could be a chance that the appellant had been seen by the witnesses who had either been seen by the witnesses or had been shown to them by the police before being put on test identification parade. 6. It is true that P.Ws.2 and 3 have claimed that they identified the appellant in the test identification parade dated 02.03.1994 which was supervised by P.W.7 Hanuman Prasad Tiwary, Judicial Magistrate and also identified in the court by the witnesses who stated that they had identified the appellant in test identification parade. But there are two infirmities in the evidence of test identification parade as there is no evidence by way of explanation as to why the appellant was not put on test identification parades which were held on 05.02.1994 and 22.02.1994 and the appellant could be put for identification only on 5 02.03.1994 after 62 days of being remanded in the case from another case. There is no evidence that precaution was taken by the police who were bringing the appellant from jail to court for his production so that the appellant was not seen by the witnesses. The investigating officer has also not been examined who could have given the explanation in the above behalf. It has regularly been held by this Court that the evidence of test identification parade gets suspect if it is shown that there was an enormous un-explained delay in holding test identification parade for identification of the suspected accused. There is an enormous delay of 62 days and there is no further explanation as to why the appellant was not put on test identification parades held on two days prior to finally being put on test identification parade on 02.03.1994. There could be an inference that the police was waiting for ensuring the identification of the appellant by witnesses after they had the opportunity of fully seeing the appellant so as to identifying him at the test identification parade. The unexplained delay in holding the test identification parade with further non-explanation or not putting the appellant on test identification parade on 05.02.1994 and 22.02.1994 makes the evidence of test identification parade suspect and in that view of the matter it is not safe to act upon that evidence for upholding the judgment 6 of conviction and sustaining the sentence passed upon the appellant. 7. In the result, the appeal succeeds and the same is allowed. The judgment of conviction and order of sentence passed upon the appellant are hereby set aside. The appellant is acquitted of the charges. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 17th day of October, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)