Criminal Appeal (SJ) No. 207 of 1998 Against the judgment and order dated 2nd May, 1998 passed by Shri Bipin Dutta Pathak, 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 49/89/3/89. ****** Madan Chamar, Son of Late Sukhari Chamar, resident of village – Jharaha, P.S. – Kutumba, District – Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 208 of 1998 1. Bishwanath Mahto, Son of Chanarik Mahto, resident of village – Jankop, P.S. – Barun, District – Aurangabad. 2. Nanhku Mahto, Son of Chandradeo Mahto, resident of village – Chanda, P.S. – Bhibra (Deo) District – Aurangabad. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Manindra Kishore Singh, 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 are being heard together and disposed of by the common judgment as both the appeals arise out of the same judgment whereby the appellants have been convicted for the offence 2 under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case in fardbeyan is that 8-10 dacoits arrived at the door of the informant and out of them three dacoits locked his relative Dinanath Singh and Tunma @ Gunga (Nati) in the outer room of the informant and then looted the jewelries from the family inmates of the house and looted the articles from the box and took away rupees 30,000/- as well as jewelries. 4. On the fardbeyan of the informant, the FIR was lodged and on investigation the charge-sheet was submitted. During the investigation some articles were seized and some of the accused were apprehended. T.I.P. conducted and after the investigation the charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. 5. After commitment, charge was framed and trial proceeded. During the trial 14 witnesses were examined and no witness was examined on behalf of the defence. The documentary evidence adduced on behalf of the prosecution and the documentary evidence adduced as Ext. 1 formal FIR, Ext. 2 Fardbeyan, Ext. 3/3 is the signature, Ext. 4 T.I.P Chart, Ext. 5 seizure list, Ext. 3/5 is the signature on the seizure list, Ext. 4/1 T.I.P. Chart. 6. On considering the oral and documentary evidence, the order of 3 conviction and sentence is recorded as stated above. 7. Learned counsel for the appellants, however, contended that the three appellants have been convicted mainly on the basis of identification and has pointed that the appellant Madan Chamar has been identified by only one witness P.W. 6 in court and the appellant Biswanath Mahto though identified by two witnesses P.W. 8 and 6 the informant but the witness has not stated what act of commission or omission was made by him during the dacoity and the appellant Nanhaku Mahto though identified during T.I.P by two witnesses but has not been identified by these witnesses in court and hence there is no substantive evidence regarding identification. 8. Learned counsel for the State, however, submits that the witnesses have identified in T.I.P. as well as in the Court. 9. However, out of the fourteen witnesses examined on behalf of the prosecution. P.Ws. 1, 2 and 11 are formal witnesses. P.W. 10 and 14 are Judicial Magistrate who has conducted the T.I.P. of Biswanath Mahto and P.W. 14 has conducted the T.I.P. of the other suspects. P.W. 3 is the seizure list witness. P.W. 4 is also a seizure list witness. P.W. 5 is Kumati Devi. However, she has stated in her evidence she has not attended the T.I.P and even denied to identify the accused persons. This witness has been declared hostile. P.W. 7 is tendered. P.W. 9 has stated that though he has attended the T.I.P and has identified one of the 4 dacoits but now he is unable to identify the accused in dock. However, he has identified material Ext. 1 and 2, the clothes seized and stated that one of the dacoits had worn these clothes during dacoity but he is not present in court. 10. P.W. 11 is again a seizure list witness. 11. P.W. 12 is the Police Officer who has conducted the search and seizure. 12. P.W. 13 has proved material Ext. 1 and 2, the clothes which were seized. However, P.W. 6 and 8 is a material witness. P.W. 6 supported the factum of dacoity and has stated that he went to jail and participated in T.I.P. and identified four dacoits and the four dacoits to whom she has identified are present in Court and though this witness identified the accused persons in T.I.P. but in her evidence she has not stated that when she identified the dacoit or the appellants what role was performed by the appellants or what act of commission and omission was being done by the appellants and there is no specific mention about the reference of each of the dacoits about their act of commission during identification by this witness. 13. P.W. 8 is the informant. However, he has also stated that the dacoits came and locked them in a room. However, this witness has stated that he identified one dacoit in T.I.P. in jail but the accused to whom he identified not in court. However, it has been noted in 5 deposition by Presiding Officer in evidence that this appellant deposed this on seeing the accused in dock. However, the evidence of this witness recorded on 4.1.1990 and the order-sheet mentioned that all the accused persons were produced from jail and were present in court. 14. P.Ws. 12 and 13 have proved the search and seizure of Paijama- Kurta from house of father of Madam Chamar. The seizure list is Ext. 5. P.W. 14 is the Judicial Magistrate who conducted Test Identification Parade. P.W. 6 Singari Devi identified Charitra Dushad. However, this witness did not identify the appellants in court. 15. However, from evidence of P.W. 14 and Ext. 4/1, it is apparent that Singari Devi identified only Charitra Dushad out of the three suspects Jagarnath Singh, Charitar Dushad and Nanku Mahto and hence she did not identify Nanku Mahto in T.I.P. 16. The seizure list prepared for Paijama-Kurta recovered from house of father Madan Chamar and the material exhibits produced in court was identified by witness in court and it is stated that Madan Chamar was wearing this dress during dacotiy but no T.I.P. was conducted with regard to the said Paijama-Kurta, hence the evidence of identification on the basis of the said Paijama and Kurta of Madan Chamar does not inspire confidence. 17. Hence taking into consideration that the identification of witness in court is the substantive evidence and the identification in Test 6 Identification Parade is not substantive evidence and has only corroborative value, the conviction cannot be recorded on the basis of Test Identification Parade during investigation. However, taking into consideration the entire evidence the identification of the appellant has been proved only by P.W. 6 in court whereas P.W. 6 failed to identify the appellant Nanku Mahto in Test Identification Parade. Moreover, the conclusion on the basis of sole identification by P.W. 6 is neither prudent nor proper and hence the appellants are given benefit of doubt and the prosecution has not been able to prove the charges beyond reasonable doubt against the appellants, hence the order of conviction and sentence recorded by the learned lower court is set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna Dated, the 27th July, 2011. N.A.F.R./Kundan.