Criminal Appeal (SJ) No.257 of 1996 Against the judgment and order of sentence dated 11. 09. 1996 passed by Sri Madhvendra Saran, 1st Additional Sessions Judge, Samastipur, in Sessions Trial No. 269 of 1993/ 152 of 1993. 1. Suresh Prasad Verma, S/o Ram Sakal Mahto. 2. Nagendra Thakur, S/o Rameshwar Thakur 3. Manoj Kumar Singh, S/o Ram Jatan Singh 4. Md. Moinul Haque, S/o Md. Wahab. All are resident of Village- Ladaura, P.S. Kalyanpur, District- Samastipur. ……….Appellants. Versus The State of Bihar ……………………….Respondent. .... For the Appellant/s : Mr. Amish K. Jha, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. = PRESENT HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J Heard learned counsel for the appellants and learned counsel for the State. 2. Four appellants namely, Suresh Prasad Verma, Nagendra Thakur, Manoj Kumar Singh and Md. Moinul Haque have been convicted for offence under Section 395 of the Indian Penal and sentenced to undergo rigorous imprisonment for ten years. Further appellant nos. 1 to 3 have further been convicted for offence under Section 412 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years. Further it has been ordered that both the sentences shall run 2 concurrently. 3. The prosecution case as alleged in the Fardbeyan by the informant Birbal Rai that in the night in between 5/6. 6. 1992 while they were sleeping after taking meal all of a sudden ten to twelve dacoits came and awakened him, out of them five to six dacoits have covered their faces and hence he identified some of the dacoits by their gesture of voice and in the light of the torch of the dacoits. However, he identified Suresh Pd. Verma, Nagendra Pd. Verma, Manoj Kumar Singh, Nagendra Thakur and Md. Moinul Haque. It has further been submitted that out of whom Suresh Pd. Verma was armed with pistol, Nagendra Pd. Verma was carrying bomb in jhola, Nagendra Thakur was armed with dagger and other persons were carrying pistol and rod and assaulted the informant and broke open box and looted the articles. There was marriage of sister of the informant on 07.06.1992 and hence looted all the articles. On the Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted. Thereafter, cognizance was taken and case was committed to the court of sessions. 4. During trial ten witnesses in support of the 3 prosecution cases were examined. Out of ten witnesses, witness nos. 1 to 4 are material witnesses, P.W. 4 is informant, P.W. 5, 6 and 7 did not support the prosecution case as they were hostile. P.W. 6 was tendered. P.W. 8 is Circle Officer who has conducted the T.I. parade, P.W. 9 is the Doctor and tender and P.W. 10 is the Investigation Officer. However, after considering the oral and documentary evidence the court below convicted the accused persons and sentenced as stated above. 5. Learned counsel for the appellants has however, contended that witnesses in their statement as stated that they have claimed to identify the appellants in the torch light, but they are in their evidence stated that accused persons have covered their face and it was dark night and shown the accused person in torch light. It has further been stated that out of four material witnesses, P.W. 1 and 2 claimed to have identified the accused persons. P.W. 2 has divulged the story identified the accused persons in the light of diya. However, prosecution case does not make out for dacoit and P.W. 3 has stated that he has not identified the dacoits. P.W. 4 (informant) has stated that he identified the accused persons by gesture 4 of their voice and they stated that face of the dacoits were covered, hence identification of this witness is doubtful. The appellants are next door member and one of the appellant Nagendra Thakur was arrested just after the occurrence at the place of occurrence and his hence identification of the accused is doubtful. 6. Learned counsel for the State however, contends that, though, there is allegation of recovery of some articles from the possession of the appellants and T.I. parade is said to have been held. For identification of the articles, witnesses in their evidence has specifically stated that articles were seized by the police were shown to the witnesses after its recovery even at the time of T.I Parade by the Officer-in-Charge of the police station and hence contends that Test Identification Parade lost its importance and identification of articles either in court or T.I parade lost its significance as articles seized were shown to the witnesses as apparent from evidence. 7. Learned counsel for the State however, support the order of conviction and sentence and submits that occurrence took place in the night and just after the occurrence, the informant has recorded Fardbeyan at the 5 hospital and the police immediately rushed to the place of occurrence hence there is no chance of due deliberation for false implication and defence has also mentioned reason for false implication and hence submits that identification is reliable and no prejudice has been caused to the accused persons and hence order of conviction is right. 8. Having regard to the respective submission question for consideration whether order of conviction and sentence is sustainable and whether prosecution has been proved the charges. 9. However, P.W. 1, Ambika Rai, is father of the informant supported the prosecution case about dacoity and further dragger injury inflicted on the informant by the accused persons and claimed to identified five to six persons by torch light. However, in his cross-examination he has stated that dacoits have covered their face partially. However, he claimed to have identified Suresh Pd. Verma armed with pistol, Nagendra Thakur armed with dagger and Manoj Kumar Singh armed with danta and also identified Md. Moinul Haque, 10. P.W. 2 Nirmala Devi has however, stated that she identified the accused persons in light of 6 the torch of the dacoits as well as diya. In para 7 of her deposition stated that accused had covered their face and all of them have fire arms and jhola. 11. P.W. 3 Ram Lakhan Sah in his evidence has stated that on hearing hulla he was proceeded to the Darwaja of P.W. 4 and in the way the dacoits snatched the wrist watch. He has admitted that he could not identify the dacoits. 12. P.W. 4 is the informant has stated that some of the dacoits were covered their faces and some were open mouth. However, this witness though claimed to identified, but in cross-examination accused persons in para 20 that he identified the accused persons by gesture of their voice. However, P.W. 1, 2 and 4 are all the family members and in view of evidence about identification P.W. 1, 2 and 4 have stated that accused persons have covered their face and it was in the dark night and they identified the accused persons in the light of diya, though, there is mention of Diya in Fardbeyan and so identification by P.W. 1, 2 and 4 appears to be doubtful. 13. However, other facts and circumstances, the informant stated that he got injured by dragger and was 7 admitted in hospital from where he filed Fardbeyan. However, no doctor has been examined for the treatment. Moreover, Nagendra Thakur one of the appellant caught hold just after the occurrence at the place of occurrence. However, presence of the Nagendra Thakur at the place of occurrence is quite natural as he is just next door neighbour. 14. So far conviction under Section 412 is concerned, P.W. 1 and 2 are witnesses who identified the articles. However, evidence of P.W. 1 in para 14 and P.W. 2 in para 4 has stated that articles which were recovered from the possession of the accused persons were shown to the witnesses by the police at the police station prior to the T. I. Parade. As per evidence of P.W. 1 in para 14 and evidence of P.W. 2 in para 4 of his deposition. Further evidence of P.W. 8 , the Circle Officer who conducted the T.I. parade in presence of the Officer-in-Charge of the concerned Police Station and hence the sanctity of Test Identification Parade of the article is lost. 15. Having regard to the facts and circumstances, identification of the accused persons, they have covered their face and identified in the light of the torch light of the 8 dacoits itself does not existence and accused persons and further T.I. Parade has been done and seized articles were shown to the witnesses. Hence, order of conviction under Section 395 and 412 of the Indian Penal Code is not sustainable and order of conviction and sentence is hereby set aside. 16. This appeal is allowed, accordingly. Patna High Court, The 30th June, 2011 NAFR/m.p. ( Gopal Prasad, J.)