Patna High Court
Satish Kumar BhagatversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SONI SHRIVASTAVA
Holding
The conviction under Section 395 IPC was unsustainable and the appellants were acquitted.
Summary
The appellants Satish Kumar Bhagat and Qmare Alam were convicted under Section 395 IPC for a dacoity based primarily on a delayed test identification parade (T.I.P.) and the informant’s fardbeyan. The High Court examined the reliability of the FIR, the credibility of witnesses, the absence of the investigating officer, and the procedural defects in the T.I.P., noting that the identification was made in darkness, after a three‑month delay, and by a single interested witness. The court found the FIR and fardbeyan vague, the witnesses either non‑eyewitnesses or unreliable, and the T.I.P. contrary to established norms. Consequently, the prosecution failed to prove the charge beyond reasonable doubt. The conviction was set aside and the appellants were acquitted, with the appeal allowed.
Issues considered
- The reliability and admissibility of the informant’s fardbeyan and FIR.
- The credibility of prosecution witnesses, especially the son of the informant.
- The validity of the test identification parade given the delay, darkness, and prior acquaintance of the witness with the accused.
- The impact of non‑examination of the investigating officer and other key witnesses.
- Whether the evidence established the elements of Section 395 IPC beyond reasonable doubt.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 313
- Indian Penal Code — s. 395
Subjects
- identification parade
- dacoity
- Section 395 IPC
- acquittal
- benefit of doubt
- witness credibility
- delay in investigation
- FIR reliability
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.39 of 2004
======================================================
1. Satish Kumar Bhagat S/o- Raghubir Bhagat Village- Guthauli Ps- Kewati
Dist- Darbhanga
2. Qmare Alam S/o- Isharul Haque Village- Jalwara Ps- Kewati Dist-
Darbhanga
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Adil Abbas, Amicus Curiae
For the State : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
Date : 29-01-2026
Heard Mr. Adil Abbas, learned Amicus Curiae
appearing on behalf of appellants and Ms. Anita Kumari Singh,
learned APP for the State.
2. The present appeal has been filed against the
judgment of conviction and order of sentence passed by the
Court of the Additional Sessions Judge, Fast Track Court No.3,
Darbhanga dated 23.12.2003 in S.Tr. No. 67 of 1993 (arising out
of Keoti P.S. Case No. 37 of 1992), whereby and whereunder the
appellants have been convicted under Section 395 of the Indian
Penal Code (hereinafter referred to as ‘IPC’) and they have been
sentenced to rigorous imprisonment for ten years.
3. The short facts of the case is that the informant
gave fardbeyan on 07.05.1992 at about 5:00 a.m. wherein he has
alleged that on the last night i.e. the night intervening between
6-7/05/1992, while he was sleeping inside in his house and his
son Md. Gafoor was also sleeping along with his wife in his
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
2/26
room, there was a knock heard on the door around 12:30 a.m.
and his son abused the persons who were knocking on the door.
It is further alleged that upon hearing the noise the informant
went out in the courtyard and saw the accused persons flashing
torches and upon concealing himself, he identified Sukhdeo
Khatebe (whose appeal has now abated), Md. Gafoor of district
Madhubani and Md. Sayeed Ansari (whose appeal has already
been abated), came variously armed with sticks and knife and
some of the dacoits were even assaulting his son Md. Gafoor.
The informant has alleged that out of fear, he ran out of the
house and shouted for help whereafter the villagers including
Bhogendra Yadav and Rajendra Yadav, who even fired from his
gun and other villagers also assembled. Upon seeing the
villagers, the accused persons even exploded a bomb which
caused injuries to Nathuni Mansoori (P.W.6). It is further alleged
that several articles were looted from the house of the informant
and the informant’s son Md. Gafoor was also injured by general
assault. The age of the dacoits was assessed to be between 30-40
years and some from 25-30 years. The informant has also stated
that some of the dacoits had concealed their identity by covering
their faces, however in the light of the torch which was being
flashed by the accused persons, he noticed that some of them
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
3/26
were fair while some of wheatish complexion and some were
even dark. The height of the dacoits also ranged from short,
medium to tall persons. The dacoits had been stated to be 14-15
in number and at the end it has been admitted that there was a
dispute with accused Md. Gafoor and with regard to purchase of
buffalo and despite the fact that it has been compromised,
threatening was given by the said Md. Gafoor.
4. On the basis of above mentioned fardbeyan of
the informant, Keoti P.S. Case No. 37 of 1992 was registered
against six named and other unknown persons. After
investigation, charge-sheet was submitted against the present
appellants and other accused persons under Section 395 of IPC
on 03.11.1992 whereafter the learned Magistrate took
cognizance on 17.11.1992. After the case was being committed
to the Court of sessions which was numbered as Sessions Trial
No. 67 of 1993, charges against the appellants as also other
accused persons was framed on 03.04.1993 under Section 395 of
the IPC to which they pleaded not guilty and claimed to be tried.
5. In order to substantiate its case, the prosecution
has examined altogether eight witnesses in its favour namely,
Ram Shankar Singh (P.W.1), Ram Prakash (P.W.2), who are both
the Judicial Magistrates in presence of whom Test Identification
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
4/26
Parade (hereinafter referred to as ‘T.I.P.’) was conducted. Amina
Khatoon (P.W.3), Madina Khatoon (P.W.4) and Shahnaz Begum
(P.W.5) who are the daughters-in-law of the informant, while
P.W.6 is one Nathuni Mansoori who is the neighbour of the
informant as also an injured witness, however, he does not claim
to be an eye-witness. Md. Ishaque (P.W.7) is the son of the
informant who identified the appellants during T.I.P. while P.W.8
Md. Aziz Nadaf is the informant himself who claims to be an
eye-witness to the occurrence. Yogeshwar Thakur was examined
as a Court witness who formally proved the F.I.R, fardbeyan
and the case diary.
6. No witness has been examined on behalf of
defence and the Investigating Officer of the case has also not
been examined. However, the case of the defence is complete
denial of the occurrence claiming themselves to be innocent.
7. I have heard the arguments of Mr. Adil Abbas,
learned Amicus Curiae and Ms. Anita Kumari Singh, learned
APP for the State.
8. Learned Amicus has contended at the outset that
identification of the accused persons including the appellants is
extremely doubtful in view of the admitted fact that the
occurrence is said to have happened in the night with no source
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
5/26
of light but for the torches which were being flashed by the
accused persons themselves. He has also submitted that the
informant himself admitted the factum of concealment of
identity by covering clothes over the faces and the description
given by him of 14-15 persons, who were involved in the
offence, is immensely vague as the description ranges from short
height to a tall person, age also varies and complexion of the
accused persons has also been vaguely indicative, which is a
pointer towards the fact that the informant has been giving these
details on the basis of some figment of imagination. Learned
Amicus Curiae has also argued that the T.I.P., which is the very
basis for conviction of the present appellants, has been
extremely delayed and thus, makes it not credible. It has also
been submitted that T.I.P. was conducted after approximately
more than 3 months of the arrest of the appellants and as a
matter of fact the informant did not participate in the T.I.P.,
rather it was P.W.7 Md. Ishaque who participated in the same
and who was admittedly not an eye-witness to the occurrence
but had only stated that he had seen the accused persons on way
and that he was known to appellant no.2 from before. The T.I.P.
was even attended by another witness Md. Izhar, who was not
examined by the prosecution and he is also not an eye-witness to
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
6/26
the occurrence. Further argument advanced by the learned
Amicus Curiae is that so far as the evidence of P.W.6 Nathuni
Mansoori is concerned, the same also remains shrouded in doubt
on account of the fact that although he alleges to have received
injuries on account of bomb explosion, there is neither any
injury report on record nor any doctor has been examined to
certify the same. Further, emphasis has been laid upon the non-
examination of the Investigating Officer which caused serious
prejudice to the defense. Besides, it has also been argued that
there are several inconsistencies between the evidence of the
prosecution witnesses.
9. Per contra, Ms. Anita Kumari Singh, learned
APP for the State has defended the impugned judgment and
conviction sentence by submitting that though the present
appellants have not been specifically named in the F.I.R. but
they have been identified in the T.I.P. which was participated by
P.W.7 Md. Ishaque who is the son of the informant, conducted
on 18.08.1992 and 31.08.1992 in presence of Judicial Officers
who have been examined as P.W.1 and P.W.2 who duly
supported such identification and have not pointed out any
infirmity in the T.I.P. The T.I.P chart has also been marked and
brought on record as Exhibit-1 and Exhibit-1/1 through which
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
7/26
the identification of the appellants had been confirmed. She has
also contended that despite the fact that the occurrence took
place in the night, there was enough source of light for the
purpose of identification.
10. I have minutely perused both the oral and the
documentary evidence, besides hearing the learned counsel for
the parties. Before proceeding further, it would be necessary to
cursorily discuss the evidence on record.
11. P.W.1 Ram Shankar Singh and P.W.2 Ram
Prakash are Judicial Officers, who had conducted the T.I.P. of
the present appellants. P.W.1 has specifically stated that on
31.08.1992 he had conducted the T.I.P. of appellant Satish
Kumar Bhagat by following all the provisions related to
identification and the witness Md. Ishaque (P.W.7) has identified
the appellants, namely, Satish Kumar Bhagat and one Akbar
Nadaf during the T.I.P. He has also stated that there was one
queue made for identification and different persons from the
suspects were made to stand in the said queue of different height
and built. P.W.2 had conducted T.I.P. of suspect Qmare Alam on
18.08.1992 and the same witness P.W.7 had identified him as
one of the dacoits. It has also been stated that ten persons of
similar appearance were made to stand for T.I.P. and only one
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
8/26
person was identified while the other two witnesses identified
other persons who were not suspects. P.W.3 Amina Khatoon,
P.W.4 Madina Khatoon and P.W.5 Shahnaz Begum are all
daughters-in-law of the informant who have stated in the
examination-in-chief that their father-in-law i.e. the informant
had told them that he had identified dacoits Gafoor, Sukhdeo
Khatbe and Md. Sayeed Ansari and the dacoits had also blasted
three bombs. P.W. 3 Amina Khatoon claims to know Md. Gafoor
and that she did not come out of the room in which she was
sleeping and has further stated that the dacoits had covered their
faces with gamchha, as such she could not identify any one. In
her cross-examination, she has also admitted that she had given
the statement only at the instance of her father-in-law. P.W.4
Madina Khatoon, wife of Md. Gafoor, has also reiterated the
facts as stated by P.W.3 that she had not seen anything herself
and whatever information, she had, was received from her
father-in-law. She has also stated that she did not talk with any
one except her father-in-law regarding the incident. P.W.5
Shahnaz Begum is a tendered witness who has admitted in her
cross-examination that she had come to depose at the instance of
her father-in-law.
12. Nathuni Mansoori, who was examined as P.W.6
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
9/26
and had confirmed the fact that there was a robbery in the house
of the informant at around 1:00 a.m. in the night, stated that he
awoke when his brother was making noise and as soon as he
came out of the house he got hit by a bomb and got injured by it.
He has further stated that he did not have any conversation with
the informant that night nor did the informant reveal the name of
any dacoit. He denied the fact that the informant had told him
the name of three dacoits being Md. Gafoor, Md. Sayeed Ansari
and Sukhdeo Khatebe. In his cross examination, he had
specifically stated that he had not identified any dacoit while in
further cross-examination he had also admitted that Gathra and
Dahipura are adjacent villages and people of both the villages
are known to each other. P.W.7, Md. Ishaque, who happens to
be the son of the informant, had stated in his examination-in-
chief that an incident of robbery was committed in his house
leading to theft of jewellery, clothes etc. He had gone to jail for
T.I.P. where he identified Qmare Alam, Akbar Nadaf and Satish
Kumar Bhagat. He further stated that he had identified these
dacoits in the light of torch in the night at the time of the
robbery. In his cross-examination, he deposed that when he
returned home he found the ladies of the family weeping and
they told him that the dacoits had looted all the articles and that,
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
10/26
apart from the female members of the family, his father and
other villagers were also present at the place of occurrence,
however, he did not meet any outsider. His attention has been
invited to the statement given before the police under Section
161 Cr.P.C in paragraph no. 9 of his evidence that he had
admitted to have gone to participate in the T.I.P. after three
months and the constables of Keoti P.S. had taken him along. He
alleges to have gone for the T.I.P. only on one day and there was
a queue of around 50 persons consisting of persons of varied
descriptions being young and old of different height and built.
With regard to the appellant Satish Kumar Bhagat, he has stated
that he had seen him coming to his village and has been rather
seeing him for the last 2-4 months and hence, he recognizes him.
It has further been reiterated in paragraph no.13 of the cross-
examination that the T.I.P. was held in a single day and lastly, he
had stated that he came home after it was dark and he did not
see any dacoit at the place of occurrence.
13. The informant Aziz Nadaf has been examined
as P.W.8 and he has narrated the story as stated in the fardbeyan
in his examination-in-chief with regard to the robbery
committed in his house leading to loot of articles by accused
persons out of which he recognized some in the light of torch.
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
11/26
He further stated that his son Ishaque P.W.7 had gone on duty on
night of the incident and he said that while returning home, he
saw some dacoits on way. The informant has claimed to identify
Md. Gafoor, Md. Sayeed Ansari and Sukhdeo Khatebe as the
persons involved in the offence of robbery committed at his
house. In the cross-examination, the informant has admitted that
there was a dispute with accused Gafoor with regard to purchase
of buffalo before the incident in question, however, the said
dispute was resolved through panchyati but the said Md. Gafoor
had still demanded money from him. The informant has also
admitted the fact that some of the accused persons had covered
their faces. With regard to Sayed Ansari, he stated that he knew
him from before the incident and that he was also a broker in the
business of buying and selling of buffalos. He also admits to
have known Nathuni Khatibe who is the father of Sukhdeo
Khatebe. In further cross-examination, this witness has admitted
to have talked with Md. Ishaque (P.W.7) while he was returning
and Ishaque had told him that he had identified some dacoits on
the way. All these facts were recorded by the police.
14. One Yogeshwar Thakur has been examined as
Court witness no. 1, who is an Advocate Clerk by profession,
has identified the formal F.I.R as Exhibit–I, fardbeyan as
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
12/26
Exhibit-II and case diary as exhibit-III. In the cross-examination
this witness has accepted that the said documents were not
written before him and he personally does not have any
information about the hand writing.
15. After closing of the prosecution evidence, trial
Court recorded the statements of the appellants under section
313 of Cr.P.C. dated 28.11.2000, enabling them to personally
explain the circumstances appearing in the evidence against
them, however, they denied the said charges and circumstances.
16. The learned trial Judge, upon appreciation,
analysis and scrutiny of the evidence adduced during trial, has
found the appellants guilty of the offence and sentenced them to
imprisonment, by its impugned judgment and order.
Analysis and Consideration
17. I have perused the impugned judgment of the
learned trial Court, the entire materials on record and I have
given thoughtful consideration to the rival submissions made by
the learned Amicus Curiae for the appellants and learned APP
for the State.
18. The contents of the F.I.R has already been
discussed in detail earlier which discloses an offence with regard
to robbery being conducted in the house of the informant
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
13/26
leading to looting of articles and injuries being caused to some
and further identification of some of the accused by the
informant and subsequent identification of the present appellants
during the T.I.P.
19. The focal point for consideration now is as to
whether the prosecution has been able to bring home the charges
leveled against the appellants beyond all reasonable doubts so as
to sustain the conviction, and for such consideration the
evidence on record needs to be examined and analysed.
20. Upon going through the records, the starting
point of the present case which is the F.I.R. based upon the
fardbeyan of the informant needs to be considered as to whether
both the fardbeyan as also the formal F.I.R are reliable piece of
documents. This analysis has to be done in background of the
the fact that neither the fardbeyan nor the formal F.I.R. has been
proved or marked as an exhibit by the informant or the
Investigating officer or by the person who recorded the
fardbeyan of the informant. This Court is unable to comprehend
as to what deterred the prosecution from getting the
signature/LTI identified by the informant himself while he was
being examined as P.W.8 in order to prove the same. There is
only a vague statement in his deposition that he had got his
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
14/26
statement recorded by the Senior Inspector of Police, however,
the fact remains that the S.I Chandrama Singh of Keoti P.S. has
also not been examined as witness. The formal F.I.R ought to
have been proved by the Investigating Officer or any other
person posted in the same P.S. in his absence but as a matter of
fact all these documents have been proved formally by one
Court witness, who happens to an Advocate Clerk and such a
practice has always been deprecated by the Hon’ble Supreme
Court in various judicial pronouncements. It is also a fact that
this Court witness has accepted that neither these documents
were prepared before him nor he had any personal information
with regard to hand writing etc., of the makers of such
documents. Thus, in absence of the informant identifying his
signature/LTI, the S.I. who recorded the fardbeyan as also in the
absence of Investigating Officer, the contents of the fardbeyan
loose its sanctity and credibility and thus, it is difficult to treat
such an F.I.R as a reliable piece of document. From a bare
reading of the fardbeyan of the informant, it would appear that it
suffers from the vice of vagueness inasmuch as the description
of the accused persons has such a wide range with regard to
height, looks, complexion and built etc., that such kind of
identification cannot be held to be reliable.
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
15/26
21. It would now be pertinent to discuss the
credibility of the witnesses in the background of the facts stated
above that the fardbeyan and the FIR itself do not appear to be
reliable piece of documents. The maker of the fardbeyan i.e. the
informant has been examined as P.W.8 and upon perusal of his
evidence, it has appeared that that he has neither named nor
identified appellant no. 2 and 4. Per contra, he has recognized
one Gafoor with whom he has admitted that he is on inimical
relations. He has also categorically stated during his cross-
examination that some of the accused persons had concealed
their identity by tying clothes on their faces and he has also
admitted that flashing of the torch by the accused persons was
falling on the faces of the informant and others. In such a
situation when the occurrence is said to have happened in a dark
night, with torch being flashed by the accused persons and
several accused persons having concealed their identities, it
appears that any identification made of any of the accused
persons including the present appellants, is not worth believing.
22. As discussed earlier, P.W.3, P.W.4 and P.W.5
have not claimed to be the eyewitnesses and they have rather
stated in their evidence that they have made their statements at
the instance of and on the instructions of their father-in-law, who
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
16/26
is the informant PW8. As such, the evidence of P.W.3, P.W.4 and
P.W.5, though being present in the house and who could have
given an eyewitnesses account of the occurrence have failed to
do the same. As such, the evidence of these three witnesses
P.W.3, P.W.4 and P.W.5 are of no consequence. Moreover, PW5
is the witness who has only been tendered for cross-
examination. So far as PW6 is concerned who claims to be an
injured witness, his evidence would also not be of much
relevance because he never claimed to be an eyewitness to the
occurrence nor did he claim to have identified any of the
dacoits. His injury report is not on record nor any doctor has
been examined to certify the injury received by the said
witnesses, as such, the very factum of PW6 being injured
witness is also not established. The witness upon whom the
identification of the present appellants rests is P.W.7, who
happens to be the son of the informant PW8, Md. Ishaque and
he claims to have identified these appellants in the T.I.P. at jail,
however, the point to be considered is that this identification in
the T.I.P. took place after about three months of the date of
occurrence and after lapse of 20-25 days of the date of custody
of the appellants. This goes to indicate that T.I.P. was not
conducted with all promptness. Moreover, the evidence of P.W.7
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
17/26
also indicates that he was made to identify the appellants from a
queue of about 50 persons being made to stand together of
varied height, age, complexion, etc. So far as the norms of T.I.P.
is concerned, the identification is to be done from persons
having similar appearance and not in the manner as it was done
as according to P.W.7. It has also been accepted by this witness
in his evidence that appellant Satish Bhagat is a resident of
Gathali village and that he used to regularly go to the said
village and has even admitted that people of both the villages
recognize each other by face. He has also admitted in paragraph
12 that he had recently seen Satish coming to village and he has
been seeing him since the last 2-4 months and therefore he
recognizes him.
23. In background of such evidence where he
claims to have known the appellant and has been seeing him for
the past two to four months, the identification of such a person
by this witness in a T.I.P. seems to have completely lost its
relevance and sanctity. The evidence that remains to be analyzed
is only that of P.W.1 and P.W.2 who happen to be the Judicial
Magistrates who conducted the T.I.P. which was participated by
PW7. Since these witnesses are Judicial Magistrates, holding
responsible positions, there is no reason to doubt their evidence
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
18/26
but it remains a fact that they are merely official witnesses who
got the T.I.P. conducted and it has also been accepted by them
that there was one queue made for identification in which
persons different from the suspects were made to stand. It has
also been admitted by P.W.2 that there were three witnesses at
the time of identification and only one person was identified
whereas other two persons identified other persons who were
not suspects. Thus, it is also borne out of the testimony of this
witness that the appellants have been identified only by one
witness, i.e. P.W.7. The value of evidence becomes extremely
diminished by the fact that he not only happens to be the son of
the informant, thus being an interested witness, he also claims to
have known one of the appellants from before and contrary to
the deposition of P.W.1 and P.W.2, he has admitted that he has
gone for identification only once. So far as issue of credibility of
witness is concerned, the evidence of these witnesses suffer
from several inherent defects and inconsistencies in the
background of the fact that the defense has not been able to
draw any contradiction in their evidence in the wake of non-
examination of the Investigating Officer.
24. After having discussed the credibility of the
testimony of the prosecution witnesses, who have been
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
19/26
examined, it would also not be out of context to notice that
despite the fact that the case of the prosecution itself is that
several villagers and local people had assembled at the place of
occurrence and had even resorted to firing shots, except P.W.6,
no other independent witness came to support the case of the
prosecution. It is no doubt true that it is the quality and not the
quantity of evidence which determines a case, but the non-
examination of the independent witnesses, although available,
are likely to have an adverse impact on the case of the
prosecution. It is also a fact that some of the most competent
witnesses whose evidence would have been very relevant and
crucial for the prosecution to establish its case, have not been
examined or have been deliberately withheld. These witnesses
included SI of police, Chandrama Singh of Keoti P.S. who had
recorded the fardbeyan, of the informant whose evidence could
have given same credence to the fardbyan which is the very
foundation of the entire prosecution case and it is this witness
who could have even got the documents exhibited which would
have been legal and proper. The fardbeyan discloses the fact that
the son of the informant Md. Gafoor was the one who got into
both verbal and physical embroil with the accused persons and
as such, he was one of the most competent witnesses who would
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
20/26
have given an eye-witness account of the entire occurrence and
would have also identified the accused persons, in case the story
had some element of truth in it. The non-examination of this
witness Md. Gafoor again puts a big question mark on the
veracity of the prosecution case itself. Additionally, the
neighbors and the local people, who claim to have seen the
occurrence, have also not been examined and the major blow to
the prosecution case comes from the non-examination of the
Investigating Officer, as in his absence, no objective evidence
could be collected from the place of occurrence in order to
conclusively prove the place of occurrence or even the manner
of occurrence. The non-examination of the Investigating Officer
has also caused serious prejudice to the defense inasmuch as
they did not have any opportunity to draw contradictions from
the statements of the witnesses, although in the cross-
examination, their attention has been drawn to their statement
made under section 161 Cr.P.C, but in the absence of
Investigating Officer, the defence was precluded from carving
out those contradictions. In the absence of the investigating
officer, no question could be put with regard to the recovery of
looted articles and in absence of any such evidence, it may be
assumed that the looted items were not recovered from the
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
21/26
conscious possession of these appellants.
25. So far as the case diary being on record by way
of formal proof is concerned, this court is conscious of the fact
the very practice of exhibiting the case diary has been
deprecated by the Hon'ble Apex Court and that too in a situation
when the same has been proved by any Advocate Clerk who has
had no occasion to have any familiarity with the writing or
signature of the concerned Investigating Officer. The Advocate
Clerk has been examined as court witness and has made an
unambiguous statement in his cross-examination that the said
documents were not written before him and he personally does
not have any information about the handwriting.
26. After having discussed several lacunae in the
case of the prosecution, it remains an admitted position that the
sheet anchor of the prosecution case against the appellants rests
primarily on the sanctity of the T.I.P. The delay which has been
caused in conducting the T.I.P. adversely affects the sanctity of
the same and benefit of doubt with regard to the same would lie
in favour of the appellants, as has been laid down in the case of
State of U.P. Vs. Wasif Haider reported in 2019 (2) SCC 303,
wherein it has been indicated that in a case where out of seven
witnesses, the T.I.P. was held after an inordinate delay of 55
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
22/26
days and although the involvement of the accused was brought
to light on an earlier day itself, the prosecution did not take any
effort to arrest or interrogate him for a substantial period of time
for which no reasonable explanation was provided, such T.I.P
would be susceptible to doubt. The defense had pleaded in the
said case that an inordinate delay was caused by the prosecution
witnesses to mark their identification. In the present case also,
although the names of the appellants had figured much earlier,
they were arrested at a subsequent date causing inordinate delay
in the conduct of the T.I.P, making the entire procedure
meaningless in the absence of any explanation for the same. In
such a situation, the benefit of doubt arising out of such
inefficient investigation must be bestowed upon the accused
persons, as has been held in the case of State of U.P. Vs. Wasif
Haider (supra). The T.I.P. also loses its sanctity on the ground
as discussed earlier that the accused were already known to the
witness. This court would gainfully refer to the case of Mulla &
Anr. Vs. State of U.P. reported in 2010 3 SCC 508, wherein it
has been clearly held that the necessity of holding an
identification parade can arise only when the accused persons
are not previously known to the witnesses. The said judgment
has also taken into consideration the fact that T.I.P. does not
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
23/26
constitute a substantial evidence and that it is desirable that
T.I.P. should be conducted as soon as possible in order to
eliminate the possibility of the accused persons being known to
the witnesses. Paragraph No. 43, 44, and 45 of the said judgment
are being quoted herein below:-
(43) As was observed by this Court in
Matru v. State of U.P. [(1971) 2 SCC 75 :
1971 SCC (Cri) 391] identification tests do
not constitute substantive evidence. They
are primarily meant for the purpose of
helping the investigating agency with an
assurance that their progress with the
investigation into the offence is proceeding
on the right lines. The identification can
only be used as corroboration of the
statement in court. (Vide Santokh Singh v.
Izhar Hussain [(1973) 2 SCC 406 : 1973
SCC (Cri) 828] .)
(44) The necessity for holding an
identification parade can arise only when
the accused persons are not previously
known to the witnesses. The whole idea of
a test identification parade is that
witnesses who claim to have seen the
culprits at the time of occurrence are to
identify them from the midst of other
persons without any aid or any other
source. The test is done to check upon their
veracity. In other words, the main object of
holding an identification parade, during
the investigation stage, is to test the
memory of the witnesses based upon first
impression and also to enable the
prosecution to decide whether all or any of
them could be cited as eyewitnesses of the
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
24/26
crime.
(45) The identification proceedings are
in the nature of tests and significantly,
therefore, there is no provision for it in the
Code and the Evidence Act, 1872. It is
desirable that a test identification parade
should be conducted as soon as possible
after the arrest of the accused. This
becomes necessary to eliminate the
possibility of the accused being shown to
the witnesses prior to the test identification
parade. This is a very common plea of the
accused and, therefore, the prosecution has
to be cautious to ensure that there is no
scope for making such allegation. If,
however, circumstances are beyond control
and there is some delay, it cannot be said
to be fatal to the prosecution.”
27. The argument of the learned Amicus with
regard to the fact that the informant or the son of the informant
not having participated in the T.I.P. and also that the informant's
deposition itself discloses, that for a few, the faces of accused
persons were concealed, is also taken into consideration by this
court to doubt not only the identification of the appellants but
also the veracity of the testimony of the witnesses. The absence
of source of light is also one of the factors which creates serious
doubt with regard to the identification of the accused persons. It
is also a fact that in the queue of 50 persons of different
descriptions and physical appearance and features of different
age, height, complexion etc., were made to stand together, which
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
25/26
is also against the norms of a proper T.I.P.
28. Upon taking all the aforesaid factors into
consideration and taking an overall perspective of the entire case
emerging out of the totality of the facts and circumstances of the
case, this court finds that it would not be safe to convict the
appellants solely on the basis of their identification by a single
witness in the T.I.P and that too by a witness who does not
appear to be truthful and credible and with regard to whom the
entire procedure of test identification parade seems to be an
exercise in futility, as this witness has himself admitted that he
was known to the appellant from before. In such a situation, I
find that the prosecution has failed to prove the charges under
section 395 of the I.P.C. against the appellants beyond the
shadow of all reasonable doubts and the conviction does not
appear to be legally sustainable. As such, the appellants are
entitled to acquittal by virtue of extending to them the benefit of
doubt.
29. Therefore, the judgment of conviction and order
of sentence dated 23.12.2003 passed by the Court of the
Additional Sessions Judge, Fast Track Court No.3, Darbhanga in
S.Tr. No. 67 of 1993 (arising out of Keoti P.S. Case No. 37 of 1992)
is hereby set aside and the appellants are acquitted of the charges
Patna High Court CR. APP (SJ) No.39 of 2004 dt.29-01-2026
26/26
levelled against them. The appellants are stated to be on bail and
as such, they are directed to be discharged from the liability of
their bail bonds, if not required in any other case.
30. Accordingly, the present appeal stands allowed.
31. Before parting with the judgment, this court
finds it imperative to record an appreciation for Mr. Adil Abbas,
learned Advocate, who has assisted this court as Amicus Curiae.
The Patna High Court Legal Services Committee, Patna, would
thus be expected to provide an adequate remuneration to him for
assisting this court, as per fee schedule.
(Soni Shrivastava, J)
Harsh/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 06.02.2026
Transmission Date 06.02.2026
Checking your session…