Criminal Appeal (D.B.) No. 355 of 2004 **** Against the judgment and order, dated 19.03.2004, passed by Sri B.K. Dikshit, Ad, Fast Track Court, IV, Arrah, in Session's Trial No. 163 of 1982 **** Tribeni Turha @ Sukar Turha, S/O late Baleshwar Turha, R/O village Teghara, P.S. Bihiya, district Bhojpur .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Atul Chandra, Adv. For the respondent .. Mr. Ashwiki Kr. Sinha, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. The sole appellant has been convicted for offence under Section 396 of the Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, as alleged in the fardbeyan of the informant, Ram Nath Ojha, is that in between the night of 19th and 20th March, 1980, at about twelve in the midnight 15-20 dacoits came armed with lethal weapons and tried to get open the door and, thereafter, they broke open the main gate and entered court yard and looted the property by breaking open the boxes and when they tried to 2 enter into a part of the of the house where female inmates reside then the informant along with his family members fled away to house of his neighbour in east. Further, case is that Dhruvmani Ojha, neighbour, was pelting stones upon the dacoits from his roof while the dacoit resorted to firing causing injury to Dhruvmani Ojha by which he also received fire arm injury. Further, case is that when P.W. 2, Sheo Dayal Ojha, came on hulla and asked who is there and then he received fire arm injury. Further, case is that the dacoits were also talking amongst themselves addressing as Punjabi and Sardar and, thereafter, the dacoits fled away and then the injured, Dhruvmani Ojha, was brought to Bihiyan Hospital where he succumbed to injury. Further, case is that the prosecution party has seen the dacoits in the light of torch and the neighbours have also identified them, but, they have not identified the dacoits with there name rather by face. 3. The fardbeyan was recorded at 02.45 a.m. on 20.03.1980 at Bihiyan Government Hospital and, thereafter, the first information report was lodged and investigation proceeded. After investigation the charge sheet was submitted under Section 396 of the Penal Code, cognizance was taken and case was committed to the Court of sessions. After the commitment the charges were framed against Mahanth Koeri and Tribeni Turha @ Sukar Turha for offence under Section 396 of the Penal Code and Mahanth Koeri. However, during the trial Mahanth Koeri absconded and, hence, his trial was bifurcated and the trial of the appellant proceeded. 4. During the trial, six witnesses were examined on behalf of the prosecution. They are P.W. 1, Ram Nath Onjha, P.W. 2, Sheo 3 Dayal Ojha, P.W. 3, Jagarnath Ram Dusadh, P.W. 4, Sheo Darshan Ojha, P.W. 5, Krishna Ballav Sahay, and P.W. 6, Tarkeshwar Prasad, Advocate’s Clerk. 5. The defence has also adduced a witness, who is D.W. 1, Ramashankar Ojha, and one witness has been examined as Court witness under Section 313 of the Criminal Procedure Code, Mr. Navin Kumar Sinha, Additional District Judge, who had conducted the test identification parade. The documentary evidence adduced are Exhibit 1, fardbeyan, Exhibit 2, the test identification parade chart, Exhibit 3, case diary and Exhibit 4, the formal first information report. 6. After considering the oral and documentary evidence and submission of the counsel for the parties the case the learned lower Court convicted the appellant for offence under Section 396 of the Penal Code. 7. The defence of the accused person is that the appellant, Tribeni Turha @ Sukar Turha, has land in village Kewalpatti and it has been affirmed that this village, Kewalpatti, is in the border of place of occurrence village and the uncle of this accused, Hari Narain Turha, had got land in Kewalpatti in the name of the appellant and contended that the appellant was know to prosecution party from before and the test identification parade is not reliable. However, the learned trial Court convicted the appellant on the ground that there is two identification of P.Ws. 1 and 2. 8. However, out of six witnesses, examined in the case, P.W. 1 is the informant himself and P.W. 2 is Sheo Dayal Ojha. However, he has come only to say about the occurrence and he 4 received fire arm injury. P.W. 3 is the Chowkidar and he also claimed to have identified. P.W. 4 has not supported the prosecution case and has been declared hostile. P.Ws. 5 and 6 are the formal witnesses who have formally proved the test identification parade chart and case diary. P.W. 1 has proved the khatiyan. 9. Regarding the defence of the accused person the the Court witness, Mr. Navin Kumar Sinha, Additional District Judge to support the conduct of test identification parade. 10. Hence, from the evidence of the prosecution witnesses, the evidence of P.Ws. 1 and 3 is only material is that they claimed to be the eye witnesses and claimed to have identified the accused. The prosecution case in the fardbeyan is that 15-20 dacoits came and when entered into the part of house where female inmates reside then the informant went out to the house of neighbour along with the female members. However, P.W. 1, in his evidence, supported the prosecution case and has stated that 15-20 dacoits came and said that they are police officers and they have got information about the pipe gun in the premises and, thereafter, it is alleged that the dacoits broke open the door. It is specifically stated that when the dacoits entered into the house they took away the articles of the house. He has, further, stated that he went on the roof of Narad Muni Ojha where Dhruv Mani Ojha was brick batting on the dacoits and he got fire arm injury. He has, further, stated that he went in the test identification parade and identified two dacoits. He has, further, stated that out of two dacoits, one was resorting to fire and another was fleeing away along with the articles and pointed out to Tribeni Turha @ Sukar Turha, who was 5 fleeing away with the articles. However, it is pertinent to mention that this witness identified the appellant as well as confirmed his name as Sukar Turha @ Tribeni Turha. However, it is strange how he could know the name of this appellant when he was not known to him from before. It was not supposed that a witness can identify a person with name at the test identification parade. However, he has proved the test identification parade chart. However, in normal course witness may have identified the person in dock to whom he identified in test identification parade and the witness in dock may have stated his name. In the fardbeyan there is no mention that he saw any of the dacoits fleeing away along with the house hold articles after looting in a chadar. However, Exhibit 2 is the test identification parade chart, which has been proved by Court witness no. 1, Mr. Navin Kumar Sinha that this witness identified the accused having regard to the fact that there is no mention in the fardbeyan that this witness identified the dacoits while fleeing away along with the looted house hold articles in chadar though claims to have identified the appellant fleeing away along with the house hold articles. 11. However, P.W. 3 is the Chowkidar and he in his evidence has stated that in 1980 the dacoity was committed in the house of Ram Nath Ojha and he came out in the village hearing the sound of firing and proceeded towards the sound and he lighted the torch and saw a black and a white person and he handed over them to the police. He has, further, stated that he caught hold of two persons at the door of Hazari Tiwari in a sleeping state and identified two persons Tribeni Turha in Arrah Jail. However, from the evidence of this 6 witness that he caught two persons in sleeping state and though he identified Tribeni Turha, but, not named whether he identified during the course of dacoity nor he has mentioned that at the time of dacoity what overt act was being done by this appellant. Hence, the identification of Tribeni Turha by this witness suffers from two infirmities as neither the witness mentions that he saw him during dacoity nor he mentions that what overt act was being committed by him during dacoity, but, has stated that he caught two persons in sleeping state and, hence, the identification is of no consequence. 12. Hence, from the evidence it is clear that the appellant has been identified by two witnesses, P.Ws. 1 and 3. The identification of P.W. 3 has no consequence, at all, as this witness being Chowkidar neither mentions that what act was being done by Tribeni Turha during dacoity or participation in the dacoity nor it has been mentioned whether he identified Tribeni Turha during dacoity, hence, the evidence of P.W. 3 does not inspire confidence, at all, about the identification of the appellant by this witness. So far the identification of identification by P.W. 1 is concerned, though he has identified and has mentioned that this appellant was fleeing away along with the looted articles. However, evidence of this witness does not inspire as this fact not mentioned in the fardbeyan about the identification. However, even if assuming that the identification by P.W. 1 the identification is doubtful in the light of the defence set up by accused and, hence, the case hinges on identification of only one witness without any corroboration or a corroborative evidence supporting the identification and, hence, we find and hold that it was not proper to rely upon the identification of the 7 one witnesses. Moreover, in the facts and circumstances of the case, the prosecution has not been able to prove the charges beyond all reasonable doubts. The order of conviction and sentence, recorded by the learned lower Court is set aside and the Appeal is allowed. The appellant who is in jail is hereby ordered to be released forthwith, if not required to be detained in any other case. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 22nd day of July, 2010, N.A.F.R./S.A.