Ram Ishwar Paswan vs State of Bihar

Ramnandan Prasad, J.—The sole appellant has been convicted u/s 395 of the Penal . Code and has been sentenced to undergo rigorous

imprisonment for ten years.

The prosecution case is that in the evening of 28-1-1979 at about 6.30 P.M. a dacoity was committed in the house of the informant

Sachidanand Sinha (P.W. 2). The dacoits took away ornaments, clothes and gun after assaulting the informant. An information was lodged at

Chandi Police Station on the following day by P.W. 2 and a case was instituted on that basis. In the first information report the informant had

claimed to identify 41 dacoits by name and some Others by face. In course of investigation the police arrested some persons including the present

appellant and put them on test identification parade. This appellant was identified at that test identification parade by the informant and his servant

Jagdish Ram (P.W. 8). After completing investigation the police submitted charge-sheet only against the present appellant and exonerated all the

41 persons named in the first information report as dacoits. In due course, this appellant was put on trial with the result as stated above.

The factum of dacoity has been proved by the informant and P.W. 1 Jitu Mahto. I need not consider their evidence in detail as the factum of

dacoity was not challenged before the Court below and the learned Counsel appearing for the appellant also stated that he would not challenge the

factum of dacoity here also.

Now comes the question as to whether this appellant had participated in that dacoity or not. As said above, this appellant was put on test

identification Parade conducted by P.W. 11 Sheoshankar Prasad Verma at which the informant (P.W. 2) and his servant Jagdish Ram (P.W. 8)

had claimed to identify him as one of the dacoits. These two witnesses, however, refused to identify the appellant in their evidence in Court. P.W.

2 has stated that he had identified one Rameshwar Paswan at the test identification parade, but, he was unable to identify him in Court. His clear

statement was that he could not say if the accused standing in the dock was the person whom he had identified at the test identification Parade.

P.W. 8 has gone further and has stated that he had not identified the accused who was standing in the dock although, he too has stated that he

identified one Rameshwar Paswan in the test identification parade,

So the position is that both the witnesses have stated that they had identified Rameshwar Paswan at the test identification parade but both of

them failed to identify this appellant in dock. The trial Court has thought it fit to convict the appellant on the basis of such statements coupled with

the evidence of the Magistrate who had conducted the test identification parade. I, however, find it difficult to sustain the order of conviction on the

bais of the evidence discussed above. The substantive evidence of identification is not enough what is given by the witness in Court. If the witness

simply names the accused but refuses to identify him in Court, such an evidence would not be sufficient for convicting an accused as his

participation in the crime cannot be established beyond doubt on the basis of that evidence. It is well established that the evidence necessary for

conviction of an appellant, specially in such a serious offence, must be clear and direct. When both the witnesses of this case refused to identify the

appellant in Court, I fail to understand how the appellant could be convicted only on the basis of their statement in Court that they had identified

Rameshwar Paswan at the test identification parade as it remains to be established that the appellant is that Rameshwar Paswan who had

participated in the dacoity. Unless the witnesses identify the appellant in Court as well how it can be said with any amount of certainty that he was

identified by them in course of the dacoity. The legal evidence is what is given by a witness in Court and not what he had stated before the

Magistrate conducting the test identification parade. The evidence of the Magistrate conducting the test identification parade is only a corroborative

piece of evidence and it alone cannot form the basis of conviction. In the absence of any clear evidence of identification of this appellant by any

witness in Court, the learned Asst. Sessions Judge was wholly unjustified in convicting the appellant.

In the result, the appeal is allowed and the order of conviction and sentence recorded against the appellant is set aside and he is acquitted of the

charge. The appellant, who is on bail is also discharged from the liability of his bail bond.