Criminal Appeal (SJ) No. 385 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Musaharu Mallik. 2. Singheshwar Singh. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Ranbir Singh, Adv. (Amicus Curiae) For the State : Mr. Hirday Prasad Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants have been convicted under Section 395 IPC and sentenced to RI for six years by a judgment dated 02.09.1994 passed by the 4th Additional Sessions Judge, Madhubani in S.Tr. No. 33 of 1992/6 of 1994. Since it is a jail appeal Mr. Ranbir Singh is appointed to assist the Court amicus curiae. The case of the prosecution is that a daocity was committed in the house of P.W. 6 and P.W. 5 by named dacoits and unknown miscreants. The appellants were not named in the First Information Report but subsequently were picked up on suspicion and put on Test Identification Parade in which they were allegedly identified by P.W. 1, P.W. 4 and P.W. 6. Evidently the Judicial Magistrate who conducted the Test Identification Parade has not been examined nor has the Test Identification Chart been brought on 2 record. The Investigating Officer has also not been examined by the prosecution. In the result, apart from oral evidence of P.W. 1, P.W. 4 and P.W. 6 that they had identified the appellant in the Test Identification Parade there is no documentary proof of the same which was essential to prove the case beyond all reasonable doubt. In view of such, the appeal is allowed and the judgment dated 02.09.1994 passed by the 4th Additional Sessions Judge, Madhubani in S.Tr. No. 33 of 1992/6 of 1994 is set aside. The appellants are discharged of the liability of their bail bonds. Let a copy of this judgment be handed over to Mr. Ranbir Singh appeared as amicus curiae for the appellants. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 8th April, 2011. NAFR/Vikash/-