RAMADHAR THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether the accused can be convicted on the evidence of a Magistrate holding the Test Identification Parade when the witness who had identified the accused at that Test Identification Parade failed to identify him in Court at the time of the trial is the substantive question which has arisen for decision in this appeal.

(2.) All the three appellants, out of whom, one Narain Das is now dead, have been convicted under S. 395 of the Penal Code and sentenced to undergo rigorous imprisonment for eight years each.

(3.) The prosecution case was that a dacoity had taken place in the house of the informant Kedar Prasad Yadav at village Paraulia in the night of 10th/11th Sept. 1977. An information about this occurrence was lodged by the informant at Motihari Mufassil Police Station on the following day. It appears that the informant had not claimed to identify anybody in the first information report. In course of investigation, however, some persons including the three appellants were arrested and put on Test Identification Parade, held on 17th April, 1978 and at this Test Identification Parade P.W. 3 had identified appellant 2 Latu Sahni and P.W. 4 had indentified the other two appellants as participants in that dacoity. At the trial, however, these two witnesses, namely, P.Ws. 3 and 4 failed to identify any of these appellants but on the statement of the Magistrate (P.W. 2), who conducted the Test Identification Parade and Test Identification Chart (Ext. 1), the learned Additional Sessions Judge, who conducted the trial, found the three appellants guilty. For coming to this conclusion the learned Additional Sessions Judge has placed reliance on a single Bench Decision of this Court in the case of Rahman Mian v. State, 1953 BLJR 703.