AWADH RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The eight appellants were tried and convicted for an offence under section 396, Penal Code for having committed dacoity with murder on the night of 21st and 22nd March, 1969 at about 1 a.m. in the house of P. W. 2, Ram Lachhan Prasad Singh of village Sigri Murla within police station, Ramnagar in the district of Champaran and they were sentenced to rigorous imprisonment for ten years by the Third Additional Sessions Judge, Motihari. The dacoits were about 15 to 16 in number and they used guns in commission of dacoity. Banaras Singh son of the informant Ram Lachhan Prasad Singh (P. W. 2) was killed by the dacoits by bullet shot at the time while they were retreating after commission of the dacoity. The accused denied guilt. A-8 is dead, A-1 to A-4 and A-7 have already served out their sentences of imprisonment. The remaining appellants are also about to complete their term of imprisonment.

(2.) Some of the appellants were identified only by one witness, others by two witnesses and some by three witnesses. It is not necessary to give details of identification in view of the point of law raised in this case. The strange feature of the case is that all the identifying witnesses turned hostile to the prosecution at the trial Not a single witness identified any appellant in the trial court. Counsel appearing for the appellants stressed that the evidence of identification is not substantive evidence and that it can be used only to corroborate or lend assurance to the identification made by the same witness in court. In my opinion he is right. They simply gave evidence at the trial that they had identified certain persons at the test identification parade. The fate of the case thus, depended entirely on the evidence of test identification parade. The trial court convicted them on the basis of that evidence. A question arises if the evidence of the test identification parade can form the legal basis for the appellant's conviction. In my opinion, the answer must be "no" and the trial court was not right in convicting the accused persons simply on the basis of such evidence. The facts of the present case are governed by the principles laid down in Rama Gope v. The State, AIR 1950 Pat 514 and Hasib v The State of Bihar. AIR 1972 SC 283. In this case it was held that the evidence of the test identification parade is not legal evidence before the court and conviction cannot be sustained upon it. In the Supreme Court case (supra) also the prosecution witness claimed to have identified the accused at the test identification parade but in the trial court he could not identify the accused as one of the dacoits whom he had seen at the time and place of the occurrence. It was observed :-

(3.) In Sampat Tatyada Shinde v. State of Maharashtra, AIR 1974 SC 791, it was observed :-