Criminal Appeal (SJ) No.1049 of 2006 Against the judgment of conviction and order of sentence dated 30.11.2006 passed by 3rd Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No.145 of 2003/50 of 2006. 1. RAJESH SAHNI, 2. DILIP SAHNI & 3. SHAMBHU SAHNI.... .... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants : Sri Virendra Kuer & Sri Sunil Kumar No.III, Advocates. For the Respondent : Sri Ajay Mishra, A.P.P. P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The three appellants were tried by the learned 3rd Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No.145 of 2003/50 of 2006 and by judgment dated 30.11.2006 were found guilty of committing offence under Section 395 IPC after being acquitted of the charge under Section 397 IPC. After hearing the appellants on sentence on the same day, the learned trial Judge directed each of the 2 appellants to suffer rigorous imprisonment for ten years. The appellants have come up before this Court in appeal to question the appropriateness of the findings and sentences passed upon each of them. 2. The informant P.W.1 Hari Shankar Singh along with his co-villager P.W.3 Braj Kishore Singh were proceeding to Motihari on a motorcycle and when they were on the highway, some criminals intercepted their motorcycle and one of the criminals gave a chhura blow on the thigh of P.W.1 Hari Shankar Singh. The criminals asked the occupants of the vehicle to part with their belonging and, accordingly, Rs.5,000/- was snatched from P.W.1 Hari Shankar Singh. 3. A report was lodged with the police and the case was registered. It appears from the record that appellant Rajesh Singh was arrested on 17.01.2004 on suspicion and was put on test identification 3 parade on 12.04.2004 and he was identified by P.Ws.1 and 2 both. Likewise, appellant Dilip Sahni was arrested on 09.09.2004 and was put on test identification parade on 16.09.2002 and was identified by the same witnesses, i.e., P.Ws.1 and 2. Similar was the case with appellant no.3 Shambhu Sahni, who after being arrested on 21.10.2003, was put on test identification parade on 17.12.2003 and was also identified by the same set of witnesses. It may be pointed out that the date of occurrence was 05.09.2002, thus the arrest of appellant Shambhu Sahni was after one year and one month of the incident and that of appellant no.1 Rajesh Sahni was after about three months of the occurrence whereas the appellant Dilip Sahni was arrested just on the fourth day of the incident. 4. This appeal has to be decided on the solitary point as none of the three 4 appellants were named in the FIR. The point which falls for decision by this Court was as to whether the evidence of identification was such which could justify the order of conviction and sentence upon the three appellants. 5. None of the three witnesses was named in the FIR. The evidence of P.Ws.1 and 3 indicated that they were surrounded by miscreants and they had the occasion to see their faces in the flash of the headlights of the motorcycle. Sufficiency of the source of identification might be there, in spite of that the criminals were not known to them personally. None was cited as an accused by his name, full address or other description. The police was suspecting some persons and this was how the three appellants were arrested and were remanded in the case. 6. Rule 236(a)of the Bihar Police Manual, 1978 lays down elaborate rules for 5 holding test identification parade and consists of certain precautions to be taken in respect of the suspected accused who has to be put on test identification parade. One of the precautions is that the suspected accused should be so secluded as not to allow any witness an access to him or them. If the accused persons are to be brought for production before a court, for being remanded in the case then he or they be brought in a closed vehicle or in case such vehicle was not available then their faces have to be covered so as not allowing someone to have a looked at them. The same Rule prescribes the form of the test identification parade chart under which the formalities have to be recorded and if one could consider column-7 of the prescribed chart which is in form no.49 of the Appendix to the Police Manual, then one could find that mere identification by a witness of the 6 culprits is not sufficient rather the witness is required to point out to the Magistrate, who could oversee the holding of the test identification parade, as to in what connection that particular accused was identified, whether the accused was a member of the mob of dacoits or criminals, whether he was having any weapon in his hand, as such identified that way or whether he was indulging in any particular activities, say, looting the properties, assaulting a person or flashing torchlight or exploding bombs. It hardly requires to be pointed out that formalities of holding test identification parade is not mere formalities rather there are prescribed rules and they have to be carried out as per the rules. If the formalities appear varying from the Rules as required, then as is pointed out by the very Rules, the court have always to be suspect that the holding of the test identification 7 parade was not as per the Rule and as such it was a suspect evidence, not fit to be accepted. 7. In case of appellant no.1 Rajesh Sahni, it appears that he was arrested on 17.01.2004 and he was remanded on that particular day. He was put on test identification parade on 12.04.2004, i.e., after about three months of being arrested. During these three months, the appellant Rajesh Sahni was brought to the courts for being produced before the Magistrate who was to authorize his custody by passing repeated remanded orders under Section 167 Cr.P.C. The records do not indicate as to what was the mode by which the accused was transported from the jail premises. The evidence is completely absent as regards concealing his identities while being transposed to Court for being produced in Court. Colum no.7 of the TIP Chart shows 8 that the witnesses, of course, had identified appellant Rajesh Sahni, but they could not say as to in what connection had identified the appellant Rajesh Sahni; whether he was a person who stabbed the informant or was the man who had snatched the money or was relieving the informant of his vehicle. Similar is the case with appellant no.3 Shambhu Sahni. He was arrested on 21.10.2003 for being put on test identification parade on 17.12.2003, i.e., after two months with same conditions and same appear the case of this appellant also as there is complete lack of evidence that any precaution was taken to conceal, firstly, his identity and, secondly, there was no possibility of the witnesses having seen appellant Shambhu Sahni or any other appellants. Besides in what connection Shambhu Sahni was identified by P.Ws.1 and 2 also does not appear stated by either of 9 them. 8. The holding of test identification parade in respect of Dilip Sahni was very prompt. It was within seven days of his arrest and that is to say that after being arrested on 09.09.2002 he was put on test identification parade on 16.09.2002. His arrest was also prompt. He was arrested just after four days of the occurrence. As such, there does not appear any delay in holding of the test identification parade as regards the appellant Dilip Sahni and except for that one occasion when he could have been brought to the courts for being remanded to custody. There does not appear any scope for recording that he was being brought again and again to the courts for carrying out the formalities of further remand of accused to custody. However, the only flaw which afflicts the evidence of the witnesses on 10 identification of the appellants, also appears in the case of Dilip Sahni. The witnesses who had identified appellant Dilip Sahni are the same set of witnesses, i.e., P.Ws.1 and 2 and the test identification parade chart dated 16.09.2002 does not indicate as to in what connection the appellant was identified by the two witnesses. Thus, what I find is that on account of the deficiency of evidence of identification besides the evidence of identification being completely in conflagration of the provision of Rule 236(a) of the Bihar Police Manual, the same should not have been acted upon by the court below to record the finding of guilt of three appellants. 9. In the result, the appeal succeeds and the same is hereby allowed. The three appellants are acquitted of the charge for which they were convicted by setting 11 aside the order of conviction and sentence passed upon each of them. Appellants, namely, Dilip Sahni and Shambhu Sahni are in custody. They shall be released forthwith, if not wanted in any case. Appellant Rajesh Sahni is on bail. He shall stand discharged from the liabilities of his bond. Patna High Court, Dated the 27th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)