Dugu Manjhi and ors. Vs. the State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/519488
SubjectCriminal
CourtJharkhand High Court
Decided OnMay-27-2009
Case NumberCr. Appeal Nos. 33, 45, 50, 64, 84, 89 and 443 of 2002
Judge Pradeep Kumar, J.
Reported in2009(57)BLJR2205
ActsIndian Penal Code (IPC) - Sections 395, 397 and 412
AppellantDugu Manjhi and ors.
RespondentThe State of Jharkhand
Appellant Advocate Atanu Banerjee,; Mahesh Kumar Sinha and; Umesh Kumar Cho
Respondent Advocate A.B. Mahato. APP in Cr. Appeal No. 50/02,; Tapas Roy, APP in Cr. Appeal No. 64/02,;
DispositionAppeal allowed
Cases ReferredAnr. v. State of Bihar
Excerpt:
criminal-indian penal code, 1860-sections 395 and 397-dacoity- conviction and sentence-dacoity allegedly committed in a number of houses- cash and articles looted away by the bandits- none of the witnesses identified accused in court in t.i. parade except only two pws-their evidence is not reliable and full of doubts-offence committed in dark night-identification of appellants shrouded in doubt-conviction of appellants on the basis of doubtful identification is bad in law and only fit to be set aside-appeals allowed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - in that view of the matter, the conviction of the appellants under section 395 and 397 of the indian penal code is bad in law and fit to be set aside. parade as also in court and as such the conviction of the appellants is well founded and requires no interference by this court. in para 20 he stated that koila singh was not present in the dacoity rather someone looking like koileshwar karmali participated in the dacoity. 1 is equally not reliable since during t. 1 & 2, hence, since their evidence is not reliable and full of doubts, i find that the conviction of the appellants on the basis of doubtful identification is bad in law and only fit to be set aside.pradeep kumar, j.1. all the seven appeals arise out of the same judgment and order of conviction and sentence dated 22.1.2002 passed by sri jai govind singh, 2nd additional sessions judge, bermo at tenughat in s.t. no. 280 of 1999 by which judgment learned additional sessions judge, bermo at tenughat found all the appellants guilty under section 395 of the indian penal code and section 397 of the indian penal code and sentenced them to undergo r.i. for a period of 10 years and to pay a fine of rs. 3000/- and in default to undergo r.i. for a period of 6 months. the learned court below also found all the appellants guilty under section 397 of the indian penal code and sentenced them to undergo r.i. for a period of 7 years however, he directed both the sentences shall run concurrently.2. the instant case was started on the basis of a fardbeyan given by badri yadav ( p.w.2) on 3.4.98 at about 2:30 hrs. to officer-in-charge. petarbar police station stating therein that on 2.4.98 at about 11.00 p.m. in the night when he was returning back from lalpania to his house then at his door he found some people are assembled, he thought that they had come in order to see the television from the neighbourhood and reached near the door of house he found that 10-12 persons were present who tied hands of saroj yadav on his back. when he reached then one person put a double barrel gun on his chest and asked his name, to which he disclosed his name as badri yadav then the man with gun said that whether his sasural is at village jhirkai. then, another man, who was lean and thin said that he recognized him as koleshwar karmali. they asked him to sit down, some dacoits were inside the house committing robbery. after committing robbery when the dacoits came out from the house then they escorted him to the house of chamtu mahto and as per their instruction he asked him that o/c had come there, when the door was opened they committed dacoity in his house and looted the goods, which were kept in the house and shop. they also committed dacoity in the house of mohan gope, ganga ram, suraj yadav, mahadeo yadav, jagdish yadav and narayan yadav. suddenly, they saw the jeep coming from the other side then they ran away with the looted articles. he came to know that from his house they had taken away silver ornaments and cash of rs. 900/- and other things.3. on the basis of said f.i.r. the police registered a case under sections 395 and 397 of the indian penal code against kauleshwar manjhi and 20-21 unknown persons. the informant had claimed to identify some of the villagers of lalpania among the dacoits.4. in course of investigation, the police apprehended some dacoits and they were put on t.i. parade and identified by some of the witnesses and some looted articles had also recovered, which were identified at the t.i.p. during investigation by the police and after completion of investigation the police submitted charges-sheet against the accused -appellants under sections 395/397/412 of the indian penal code and on receipt of the charge-sheet the learned magistrate after taking cognizance of the offence committed the case to the court of sessions and in due course the case was tried by the 2nd additional sessions judge. bermo at tenughat and as such he convicted the appellants as aforesaid.5. it is submitted by the learned counsel for he appellants that the learned trial court acquitted the appellants from the charges under section 412 of the indian penal code but wrongly convicted them under section 395 and 397 of the indian penal code. although as many as 12 witnesses have been examined on behalf of the prosecution, but only two witnesses i.e. p.w.1. laljee yadav & p.w.2. badri yadav had identified some of the dacoits. the evidences of p. ws. 1 & 2 are full of contradictions and as such their identifications and evidences both are tainted and motivated and the trial court wrongly relied on the same. learned counsel further submitted that there is a long delay between arrest of the appellants and the t.i. parade held by the police. the accused-appellant, bhagwanjee pandit was arrested on 16.4.98 while t.i. parade was held after two months on 17.6.98. similarly the accused-appellant, kaila yadav was arrested on 28.4.98 and he was also put on t.i. parade after two months i.e on 17.6.98. the accused-appellant, pintu singh was arrested on 3.4.98 and he was also put on t.i. parade after two months on 17.6.98 as such their identification is doubtful. he relied on a decision in the case of nirmal pasi @ anr. v. state of bihar reported in 2002 (8) supreme 672. learned counsel further submitted that since no injury was caused to anybody neither there is any injury report on record nor doctor was examined. in that view of the matter, the conviction of the appellants under section 395 and 397 of the indian penal code is bad in law and fit to be set aside.6. on the other hand, learned counsel for the state has opposed the prayer and submitted that the appellants were identified by the witnesses during t.i. parade as also in court and as such the conviction of the appellants is well founded and requires no interference by this court.7. after hearing both the parties and going through the evidence on record, i find that that the prosecution has examined as many as 12 witnesses. p.w. 1 is laljee yadav p.w.2 is badri yadav (informant), p.w.3 is jhunki devi. p w. 4 is deglal yadav. p.w.5 is etwari devi. p.w.6. surya prakash is circle officer, who had conducted the t.i.p of articles, p.w.7 is ayodhya yadav, p.w.8, chandrika yadav is a seizure-list witness p.w.9. arun kumar yadav is also a seizure-list witness, p.m. 10, rabindra kumar sharma is the investigating officer of the case. p w. 11. basanth pathak is part investigating officer of the case and p.w.12, vinay kumar is a formal witness, who proved the t.i.p. chart, which is marked as ext. 7 and t.i.p. of articles, which is marked as ext. 2.8. after going through the evidences on record, it appears that p.w.1, laljee yadav proved the fact that on 2.4.1998 about 20-22 persons entered into his house and caught his brother. saroj yadav and they had got the door opened through saroj yadav. they had tied the hands of saroj yadav towards back side and threatened him not to raise 'hullah otherwise he will be killed. dacoits were armed with deadly weapon. in court he identified the accused, fulchand karmali a person, who was leading the dacoits and stated that accused manoj singh and chattan singh were also among the dacoits. at para 4 he stated that on the night of occurrence it was dark night after 11 p.m. at paras 5 and 6 he stated that he came to know about the arrest of the dacoits after one month of the occurrence. on the second round the dacoits were arrested after sometime and after third round of arrest t.i.p was held. he identified three accused persons in t.i.p. he had not said to the magistrate that as to whether he has identified the accused persons in torch light or in the light of divri. he had seen the dacoits from inside of his house from the small hole of the door slit.p.w.2, badri yadav also supported his statement as given in the fardbeyan and stated that on the date of occurrence when he was returning from lalpania to his house at about 11 p.m. then he saw 10-15 persons standing outside in his house who were 20-22 in number when, he came near they having armed with gun caught him and tied his hands towards back and asked him to sit down and they committed dacoity in his house they took him to the house of chamru mahto and forced him to call chamru mahto as officer-in-charge of lalpania police station and when chamru mahto opened the door they committed dacoity in his house and shop. the dacoits committed dacoity in other houses in the village of mahangam. he proved his fardbeyan as ext. 1 he stated that except koila singh others committed the dacoity in his house. at para 14 he slated that during t.i. parade he had identified 5-6 persons. in para 15 he stated to the magistrate that how the dacoits were participating in the dacoity and what part was played by each dacoits. in para 20 he stated that koila singh was not present in the dacoity rather someone looking like koileshwar karmali participated in the dacoity. he also stated that he had not slated to the investigating officer that koileshwar karmali was one of the dacoits but he had stated that somebody look alike of koileshwar karmali was present in the dacoity.p.w.3, jhunki devi stated that dacoity was committed in the house also and she stated that all the accused persons standing in the dock had committed dacoity. at para 5 she stated that on the date of occurrence she had identified the dacoits, but she had not gone for the t.i.p and there is no electric light in her village in the night as it was dark night.p.w.4, deglal yadav has stated that on the date of occurrence on 2.4.1998 at about 12 p.m. in the night dacoity was committed in his house. at para 3 he stated that the accused persons in the dock had not committed the dacoity.p.w.5. etwari devi also stated that on the date of occurrence the dacoity was committed in her house, but she stated that she does not identify, any accused since dacoity was committed in the night.p.w.6, surya prakash, circle officer, who proved the t.i.p. of articles which was recovered from different houses. since all the appellants have been acquitted from the charges under section 412 of the indian penal code, hence it is not important to discuss this evidence.p.w.7, ayodhya yadav stated that he had gone in t.i.p. of articles and identified some of the articles looted from his house.p.w.8. chandrika yadav is the evidence of seizure of looted articles and he stated that no seizure was made in his presence.p.w.9, arun kumar yadav is also witness of seizure and he stated that no seizure was made in his presence.p.w.10, rabindra kumar sharma is the investigating officer of the case stated that on 3.4.1998 he was posted as officer-incharge of petarbar p.s. and he recorded fardbeyan in his hand, which is marked as ext. 5. he gave the detail of place of occurrence. he recorded the statement of witnesses. he stated that during investigation on 16.4.1998 he got information that the dacoity was committed by bhagwan pandit. phulchand karmali and raid was made in his house of bhagwan pandit who was arrested in his house and he admitted that at the instance of fulchand karmali dacoity was committed. subsequently, the other accused persons were arrested and articles were also recovered from the house of kaila yadav. manoj singh, who were subsequently were put on. t.i. parade. the arrested accused persons were also put on t.i. parade and some articles were identified by the witnesses.p.w.11. basanth pathak is part investigating officer of the case. he proved the formal f.i.r. and signature of officer-in-charge, which are marked as ext. 6 & ext.-6/1.it is important to note that in the t.i. parade. ext.-7 only three witnesses i.e. p.w.2, badri yadav p.w.1, laljee yadav and one ganga ram yadav were put for identification p.w. 1 identified the accused, bhagwan ji pandit, fulchand karmali, pintu singh and koila singh. p.w.2 has identified only two accused persons, kaila yadav and fulchand yadav. one witness ganga ram yadav had also identified one person but the said ganga ram yadav has not been examined during trial as a witness.it is also important to note that during test identification parade the witness badri yadav has also identified one rohit lal as a person, who committed dacoity, but he was not suspected in the case nor he was subsequently booked in this case.9. after going through the prosecution evidence, i find that although dacoity was committed in the houses of p.ws. 2 & 3, 5, 6 and 7, but except p.w. 1, p.w.2 none of the witnesses have identified any accused persons. it is important to note that jhuni devi, p.w.3 stated in her cross-examination at para 5 that in the night of occurrence it was a dark night and there was no electricity in their village. in that view of the matter in absence of any source of light the identification of the appellants during dacoity by p.w.1 and p.w.2 becomes doubtful p.w.1 has also stated in para 4 that on the night of occurrence alter 11 p.m. there was no moon light and it was dark and as per the f.i.r. the occurrence took place after 11 p.m. in the night. there was no source of identification available to p.ws 1 & 2. moreover, it is very clear that p.w.2, who identified during test identification parade in court, at para 6, stated that except accused persons, shankar rajwar and koila yadav all other accused persons committed dacoity, but in fact during test identification parade he had identified the accused koila who was suspected during t.i. parade. moreover, p.w.2 identified the accused person who was not suspected named rohit lal mahto, which shows that his identification was not proper and it was based on only some guess.10. learned counsel for the appellant in his argument also stated that it has held in the case of pujari yadav reported in 2000(1) east. cr. cases page 512 that where a witness has identified a person not even a suspect and wrongly identified another suspect then such identification cannot be given any credit.11. i also find that p.w.2 identified koila singh during t.i. parade, but when he was examined in court as p.w.2 at para 6 he stated that koila singh did not participate in dacoity and in t.i. parade he had identified a person who not a suspect and as such p.w.2 cannot be given credit and conviction based on his evidence cannot be sustained. similarly the evidence of p.w.1 is equally not reliable since during t.i. parade he had identified only two accused persons i.e. kaila yadav and fulchand in court.the witness p.w.1 identified a man whom he had not identified during t.i. parade. he admitted that there was no source of light and it was dark night. in the f.i.r. he stated that among dacoits he identified koleshwar karmali son of deoki karmali but in court he denied.12. as discussed above, since none of the witnesses have identified the appellants/accused in court in t.i. parade except p.ws. 1 & 2, hence, since their evidence is not reliable and full of doubts, i find that the conviction of the appellants on the basis of doubtful identification is bad in law and only fit to be set aside.13. accordingly, these appeals are allowed and the judgment of conviction and sentence dated 22.1.2002 passed by 2nd additional sessions judge is set aside. all the appellants who are on bail are released from the bondage of their bail bond.
Judgment:

Pradeep Kumar, J.

1. All the seven appeals arise out of the same judgment and order of conviction and sentence dated 22.1.2002 passed by Sri Jai Govind Singh, 2nd Additional Sessions Judge, Bermo at Tenughat in S.T. No. 280 of 1999 by which judgment learned Additional Sessions Judge, Bermo at Tenughat found all the appellants guilty under Section 395 of the Indian Penal Code and Section 397 of the Indian Penal Code and sentenced them to undergo R.I. for a period of 10 years and to pay a fine of Rs. 3000/- and in default to undergo R.I. for a period of 6 months. The learned court below also found all the appellants guilty under Section 397 of the Indian Penal Code and sentenced them to undergo R.I. for a period of 7 years However, he directed both the sentences shall run concurrently.

2. The instant case was started on the basis of a Fardbeyan given by Badri Yadav ( P.W.2) on 3.4.98 at about 2:30 hrs. to Officer-in-Charge. Petarbar Police Station stating therein that on 2.4.98 at about 11.00 P.M. in the night when he was returning back from Lalpania to his house then at his door he found some people are assembled, he thought that they had come in order to see the television from the neighbourhood and reached near the door of house he found that 10-12 persons were present who tied hands of Saroj Yadav on his back. When he reached then one person put a double barrel gun on his chest and asked his name, to which he disclosed his name as Badri Yadav then the man with gun said that whether his Sasural is at village Jhirkai. Then, another man, who was lean and thin said that he recognized him as Koleshwar Karmali. They asked him to sit down, some dacoits were inside the house committing robbery. After committing robbery when the dacoits came out from the house then they escorted him to the house of Chamtu Mahto and as per their instruction he asked him that O/C had come there, when the door was opened they committed dacoity in his house and looted the goods, which were kept in the house and shop. They also committed dacoity in the house of Mohan Gope, Ganga Ram, Suraj Yadav, Mahadeo Yadav, Jagdish Yadav and Narayan Yadav. Suddenly, they saw the jeep coming from the other side then they ran away with the looted articles. He came to know that from his house they had taken away silver ornaments and cash of Rs. 900/- and other things.

3. On the basis of said F.I.R. the police registered a case under Sections 395 and 397 of the Indian Penal Code against Kauleshwar Manjhi and 20-21 unknown persons. The informant had claimed to identify some of the villagers of Lalpania among the dacoits.

4. In course of investigation, the police apprehended some dacoits and they were put on T.I. Parade and identified by some of the witnesses and some looted articles had also recovered, which were identified at the T.I.P. during investigation by the police and after completion of investigation the police submitted charges-sheet against the accused -appellants under Sections 395/397/412 of the Indian Penal Code and on receipt of the charge-sheet the learned Magistrate after taking cognizance of the offence committed the case to the court of sessions and in due course the case was tried by the 2nd Additional Sessions Judge. Bermo at Tenughat and as such he convicted the appellants as aforesaid.

5. It is submitted by the learned Counsel for he appellants that the learned trial court acquitted the appellants from the charges under Section 412 of the Indian Penal Code but wrongly convicted them under Section 395 and 397 of the Indian Penal Code. Although as many as 12 witnesses have been examined on behalf of the prosecution, but only two witnesses i.e. P.W.1. Laljee Yadav & P.W.2. Badri Yadav had identified some of the dacoits. The evidences of P. Ws. 1 & 2 are full of contradictions and as such their identifications and evidences both are tainted and motivated and the trial court wrongly relied on the same. Learned Counsel further submitted that there is a long delay between arrest of the appellants and the T.I. Parade held by the police. The accused-appellant, Bhagwanjee Pandit was arrested on 16.4.98 while T.I. Parade was held after two months on 17.6.98. Similarly the accused-appellant, Kaila Yadav was arrested on 28.4.98 and he was also put on T.I. Parade after two months i.e on 17.6.98. The accused-appellant, Pintu Singh was arrested on 3.4.98 and he was also put on T.I. Parade after two months on 17.6.98 as such their identification is doubtful. He relied on a decision in the case of Nirmal Pasi @ Anr. v. State of Bihar reported in 2002 (8) Supreme 672. Learned Counsel further submitted that since no injury was caused to anybody neither there is any injury report on record nor Doctor was examined. In that view of the matter, the conviction of the appellants under Section 395 and 397 of the Indian Penal Code is bad in law and fit to be set aside.

6. On the other hand, learned Counsel for the State has opposed the prayer and submitted that the appellants were identified by the witnesses during T.I. Parade as also in Court and as such the conviction of the appellants is well founded and requires no interference by this Court.

7. After hearing both the parties and going through the evidence on record, I find that that the prosecution has examined as many as 12 witnesses. P.W. 1 is Laljee Yadav P.W.2 is Badri Yadav (informant), P.W.3 is Jhunki Devi. P W. 4 is Deglal Yadav. P.W.5 is Etwari Devi. P.W.6. Surya Prakash is Circle Officer, who had conducted the T.I.P of articles, P.W.7 is Ayodhya Yadav, P.W.8, Chandrika Yadav is a seizure-list witness P.W.9. Arun Kumar Yadav is also a seizure-list witness, P.M. 10, Rabindra Kumar Sharma is the Investigating Officer of the case. P W. 11. Basanth Pathak is part Investigating Officer of the case and P.W.12, Vinay Kumar is a formal witness, who proved the T.I.P. Chart, which is marked as Ext. 7 and T.I.P. of articles, which is marked as Ext. 2.

8. After going through the evidences on record, it appears that P.W.1, Laljee Yadav proved the fact that on 2.4.1998 about 20-22 persons entered into his house and caught his brother. Saroj Yadav and they had got the door opened through Saroj Yadav. They had tied the hands of Saroj Yadav towards back side and threatened him not to raise 'Hullah otherwise he will be killed. Dacoits were armed with deadly weapon. In Court he identified the accused, Fulchand Karmali a person, who was leading the dacoits and stated that accused Manoj Singh and Chattan Singh were also among the dacoits. At para 4 he stated that on the night of occurrence it was dark night after 11 p.m. At paras 5 and 6 he stated that he came to know about the arrest of the dacoits after one month of the occurrence. On the second round the dacoits were arrested after sometime and after third round of arrest T.I.P was held. He identified three accused persons in T.I.P. He had not said to the Magistrate that as to whether he has identified the accused persons in torch light or in the light of divri. He had seen the dacoits from inside of his house from the small hole of the door slit.

P.W.2, Badri Yadav also supported his statement as given in the Fardbeyan and stated that on the date of occurrence when he was returning from Lalpania to his house at about 11 P.M. then he saw 10-15 persons standing outside in his house who were 20-22 in number When, he came near they having armed with gun caught him and tied his hands towards back and asked him to sit down and they committed dacoity in his house They took him to the house of Chamru Mahto and forced him to call Chamru Mahto as officer-in-charge of Lalpania police station and when Chamru Mahto opened the door they committed dacoity in his house and shop. The dacoits committed dacoity in other houses in the village of Mahangam. He proved his Fardbeyan as Ext. 1 he stated that except Koila Singh others committed the dacoity in his house. At para 14 he slated that during T.I. Parade he had identified 5-6 persons. In para 15 he stated to the Magistrate that how the dacoits were participating in the dacoity and what part was played by each dacoits. In para 20 he stated that Koila Singh was not present in the dacoity rather someone looking like Koileshwar Karmali participated in the dacoity. He also stated that he had not slated to the Investigating Officer that Koileshwar Karmali was one of the dacoits but he had stated that somebody look alike of Koileshwar Karmali was present in the dacoity.

P.W.3, Jhunki Devi stated that dacoity was committed in the house also and she stated that all the accused persons standing in the dock had committed dacoity. At para 5 she stated that on the date of occurrence she had identified the dacoits, but she had not gone for the T.I.P and there is no electric light in her village in the night as it was dark night.

P.W.4, Deglal Yadav has stated that on the date of occurrence on 2.4.1998 at about 12 p.m. in the night dacoity was committed in his house. At para 3 he stated that the accused persons in the dock had not committed the dacoity.

P.W.5. Etwari Devi also stated that on the date of occurrence the dacoity was committed in her house, but she stated that she does not identify, any accused since dacoity was committed in the night.

P.W.6, Surya Prakash, Circle Officer, who proved the T.I.P. of articles which was recovered from different houses. Since all the appellants have been acquitted from the charges under Section 412 of the Indian Penal Code, hence it is not important to discuss this evidence.

P.W.7, Ayodhya Yadav stated that he had gone in T.I.P. of articles and identified some of the articles looted from his house.

P.W.8. Chandrika Yadav is the evidence of seizure of looted articles and he stated that no seizure was made in his presence.

P.W.9, Arun Kumar Yadav is also witness of seizure and he stated that no seizure was made in his presence.

P.W.10, Rabindra Kumar Sharma is the Investigating Officer of the case stated that on 3.4.1998 he was posted as Officer-Incharge of Petarbar P.S. and he recorded fardbeyan in his hand, which is marked as Ext. 5. He gave the detail of place of occurrence. He recorded the statement of witnesses. He stated that during investigation on 16.4.1998 he got information that the dacoity was committed by Bhagwan Pandit. Phulchand Karmali and raid was made in his house of Bhagwan Pandit who was arrested in his house and he admitted that at the instance of Fulchand Karmali dacoity was committed. Subsequently, the other accused persons were arrested and articles were also recovered from the house of Kaila Yadav. Manoj Singh, who were subsequently were put on. T.I. Parade. The arrested accused persons were also put on T.I. Parade and some articles were identified by the witnesses.

P.W.11. Basanth Pathak is part Investigating Officer of the case. He proved the formal F.I.R. and signature of officer-in-charge, which are marked as Ext. 6 & Ext.-6/1.

It is important to note that in the T.I. Parade. Ext.-7 only three witnesses i.e. P.W.2, Badri Yadav P.W.1, Laljee Yadav and one Ganga Ram Yadav were put for identification P.W. 1 identified the accused, Bhagwan ji Pandit, Fulchand Karmali, Pintu Singh and Koila Singh. P.W.2 has identified only two accused persons, Kaila Yadav and Fulchand Yadav. One witness Ganga Ram Yadav had also identified one person but the said Ganga Ram Yadav has not been examined during trial as a witness.

It is also important to note that during Test Identification Parade the witness Badri Yadav has also identified one Rohit Lal as a person, who committed dacoity, but he was not suspected in the case nor he was subsequently booked in this case.

9. After going through the prosecution evidence, I find that although dacoity was committed in the houses of P.Ws. 2 & 3, 5, 6 and 7, but except P.W. 1, P.W.2 none of the witnesses have identified any accused persons. It is important to note that Jhuni Devi, P.W.3 stated in her cross-examination at para 5 that in the night of occurrence it was a dark night and there was no electricity in their village. In that view of the matter in absence of any source of light the identification of the appellants during dacoity by P.W.1 and P.W.2 becomes doubtful P.W.1 has also stated in para 4 that on the night of occurrence alter 11 p.m. there was no moon light and it was dark and as per the F.I.R. the occurrence took place after 11 p.m. in the night. There was no source of identification available to P.Ws 1 & 2. Moreover, it is very clear that P.W.2, who identified during Test Identification Parade in Court, at para 6, stated that except accused persons, Shankar Rajwar and Koila Yadav all other accused persons committed dacoity, but in fact during Test Identification Parade he had identified the accused Koila who was suspected during T.I. Parade. Moreover, P.W.2 identified the accused person who was not suspected named Rohit Lal Mahto, which shows that his identification was not proper and it was based on only some guess.

10. Learned Counsel for the appellant in his argument also stated that it has held in the case of Pujari Yadav reported in 2000(1) East. Cr. Cases page 512 that where a witness has identified a person not even a suspect and wrongly identified another suspect then such identification cannot be given any credit.

11. I also find that P.W.2 identified Koila Singh during T.I. Parade, but when he was examined in Court as P.W.2 at para 6 he stated that Koila Singh did not participate in dacoity and in T.I. Parade he had identified a person who not a suspect and as such P.W.2 cannot be given credit and conviction based on his evidence cannot be sustained. Similarly the evidence of P.W.1 is equally not reliable since during T.I. Parade he had identified only two accused persons i.e. Kaila Yadav and Fulchand in Court.

The witness P.W.1 identified a man whom he had not identified during T.I. Parade. He admitted that there was no source of light and it was dark night. In the F.I.R. he stated that among dacoits he identified Koleshwar Karmali son of Deoki Karmali but in Court he denied.

12. As discussed above, since none of the witnesses have identified the appellants/accused in Court in T.I. Parade except P.Ws. 1 & 2, hence, since their evidence is not reliable and full of doubts, I find that the conviction of the appellants on the basis of doubtful identification is bad in law and only fit to be set aside.

13. Accordingly, these appeals are allowed and the judgment of conviction and sentence dated 22.1.2002 passed by 2nd Additional Sessions Judge is set aside. All the appellants who are on bail are released from the bondage of their bail bond.