IMPORTANT POINT
The court ruled that unreliable witness identification in a dacoity case leads to the benefit of doubt for the accused, emphasizing the need for substantive evidence.

JUDGMENT :

Gautam Kumar Choudhary, J.

1. All the aforesaid three Criminal Appeals arise out of the common judgment delivered in S.T. No.304 of 2002 and as such, they are being heard together and disposed of by this common judgment.

2. These Criminal Appeals are directed against the common Judgment of conviction dated 28.05.2012 and order of sentence dated 31.05.2012 passed by District & Additional Sessions Judge-4th Cum Special Judge, Vigilance, Hazaribagh, in S.T. No.304 of 2002 whereby the appellants have been convicted under Section 395 of Indian Penal Code.

3. As per the fardbeyan of the informant-Santosh Kumar, recorded on 03.12.2001, in the intervening night of 02/03.12.2001, he along with his family members were sleeping in their home in different rooms when some unknown criminals entered by opening the door and one of them, on the point of pistol and knife, made inquiries about the inmates of the house. Brother of the informant (Dilip) was a disabled person and therefore, one of the accused was left there to guard him. All the three brothers were sleeping on the first floor of the house in different rooms. Informant’s mother, father and other members were sleeping on the rooms of the ground floor of the house. Informant and the elder brother, on the point of pistol, were overpowered and were forced to open the door of the ground floor. Father and mother of the informant had disclosed about the ornaments. Cash of Rs.60,000/-and gold jewelleries of 18 Bhars and silver ornament of 1 Kg. were looted. Altogether 10-11 persons were involved in the commission of dacoity. Outside the house, 6-7 criminals were also there. After the commission of dacoity, they locked the inmates of the house inside the rooms, except the father of the informant was taken away by them and was tied in a Mahua tree.

4. On the basis of the written report, Mandu P.S. Case No.356 of 2001 was registered under Section 395 IPC against 10-11 unknown accused persons. During investigation, Arvind Verma, Bhola Rajak, Shakeel Ahmed, Dwarika Prasad, Binod Mahto and Mahendar Sao were identified on TIP. Police on investigation, submitted charge-sheet against Shakeel Ahmad, Mahendra Sao, Arvind Kumar Verma, Dwarika Mahto, Binod Mahto & Bhola Ravidas.

5. Five accused person were put on trial, namely, Arvind Kumar Verma, Shakeel Ahmad, Bhola Ravidas, Dwarika Mahto and Mahendra Sao under Section 395 IPC.

6. During trial, accused, Bhola Ravidas and Mahendra Sao were absconded and their trial was split up from the other accused persons and was declared absconder.

7. Altogether eight witnesses were examined on behalf of the prosecution and relevant documents including TIP Chart was proved.

8. The appellants have been convicted under Section 395 of the IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 10,000/-.

9. Learned Amicus Curiae appearing on behalf of the appellants-Arvind Kumar Verma and Shakeel Ahmad submits that the test identification parade is not a substantive piece of evidence, but the learned trial Court has returned the judgment of conviction solely based on test identification chart. Furthermore, none of the Investigating Officers have been examined causing prejudice to the accused as the place of occurrence has not been established. The details of gold and silver jewelleries alleged to have been looted, have not been given. The looted articles have not been seized from any of the appellants neither pistol nor knife which was used during dacoity, has been seized.

10. It is submitted that there has been inordinate delay of six months in conducting the test identification parade which makes test identification parade to be suspected.

11. It is argued that there is infirmity of identification of Tara Devi which will be apparent from Exhibit-3 which is the T.I.P. chart wherein it has been noted that learned Magistrate conducted the T.I.P, but that identification was based upon having seen the accused, Mahendra Sao and Dwarika Mahto in th