IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.369 of 1996

======================================================

Against the judgment of conviction and the order of sentence, dated

08.08.1996, passed, by Shri Braj Kishore Thakur, Sessions Judge, Purnea,

in Sessions Trial No. 6 of 1993, arising out of Banmankhi Police Station

Case No. 237 of 1991

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MAHESHWARI MANDAL @ BACHI MANDAL @ BACHU MANDAL,

son of late Nakchedi Mandal, resident of village Batheli, Tola Bangathighat,

P.S. Barhara, District Purnea

... ... Appellant/s

Versus

THE STATE OF BIHAR

... ... Respondent/s

======================================================

Appearance :

For the Appellant/s: Mr Sudhir Kumar Singh

Mr. Avnish Kumar

Mr. Ambrish Kumar

Mr. Saharsh Singh

For the State : Mr. Bipin Kumar

======================================================

CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

and

HONOURABLE MR. JUSTICE ALOK KUMAR

JUDGMENT AND ORDER

C.A.V.

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

Date : 01-07-2026

From going through the Lower Court’s Record, it

appears that the case diary of the present case has not been

annexed with the Lower Court’s Record and the absence of the

case diary has also not been mentioned in the order sheet of this

case. Sine this appeal is very old, I am refraining myself from

commenting on this issue.

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2. The present appeal has been preferred against the

judgment of conviction and the order of sentence, dated

08.08.1996, passed, by learned Sessions Judge, Purnea, in Sessions

Trial No. 6 of 1993, arising out of Banmankhi (Janki Nagar) Police

Station Case No. 237 of 1991, whereby the appellant was

convicted for the offence punishable under Section 396 of the

Indian Penal Code and was sentenced to undergo imprisonment for

life.

3. The prosecution case, as unfolded in the fardbayan of

the informant, Arun Deo Mandal, is that in the preceding night,

(17.10.1991), the informant, after taking dinner, was sleeping at

the door of his house along with his father and younger brother,

Sadanand Mandal. His elder brother, Veer Narayan Mandal, was

sleeping inside the house. At about 12:15 A.M., four unknown

miscreants entered into the house of the informant and started

assaulting the younger brother of the informant by means of lathi

after flashing torch. One of the miscreants, who had pockmarks

(smallpox or chickenpox) on his face, which the informant saw in

the torch light, abused and threatened to remain quiet and told to

bring money. Upon this, the informant handed over the keys of the

almirah. However, the miscreants broke open the lock and took Rs.

400/-.

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4. It has further been alleged in the fardbayan that two to

three other miscreants were present outside the house and heard a

sound of firing. After the firing, 7-8 miscreants gathered near a

papaya tree, who thereafter fled away towards the west. The

informant thereafter raised alarm and entered into his house and

saw that miscreants have shot his elder brother and his elder

brother subsequently died.

5. The informant has claimed in the fardbayan that some

of the miscreants had round faces while others had long faces;

some were fair-complexioned and others dark-complexioned. They

were armed with guns, country-made pistols and lathis. The

informant asserted to identify the miscreants.

6. On the basis of the aforesaid fardbayan, Banmankhi

(Janki Nagar) Police Station Case No. 237 of 1991, dated

18.10.1991, was registered against 7-8 unknown for the offences

punishable under Section 396 of the Indian Penal Code.

7. Upon completion of investigation, the police

submitted charge sheet against four accused persons, namely,

Dropadi Devi, Kamal @ Kamleshwari Mandal, Kanhaiya Manjhi

and the present appellant, on 22.01.1992, for the offences

punishable under Sections 396 and 120-B of the Indian Penal

Code. Three other accused persons, namely, Achhe Lal Rishideo,

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Majhia Manjhi and Mangal Manjhi, were also mentioned in the

charge sheet as absconders.

8. After submission of charge sheet, cognizance for the

offences punishable under Sections 396 and 120-B of the Indian

Penal Code was taken by the learned District Court on 10.02.1992

and the case was committed to the Court of Sessions on

19.12.1992.

9. Upon commitment of the case, charge under Section

396 of the Indian Penal Code was framed against the appellant and

the co-accused persons. The charge was read over and explained to

them in Hindi, to which they pleaded not guilty and claimed to be

tried.

10. The prosecution, in order to substantiate its case, has

examined nine witnesses and also exhibited some documents on its

behalf. List of prosecution witnesses and exhibits are being

mentioned hereunder in tabular form:-

List of Prosecution Witnesses:

Prosecution

witness no.

Name of witness Description

1. Abdul Gaffar Villager

2. Abdul Mannan Villager

3. Sadanand Mandal Brother of the

Informant

4. Abhinandan Mandal Villager

5. Arundeo Mandal Informant

6. Dr. Hari Narayan Singh Doctor

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7. Niranjan Prasad MandalInvestigating Officer

8. Satyender Nath ThakurJudicial Magistrate,

Purnea, who conducted

TIP

9. Md. Rizwan Villager

List of Exhibits on behalf of the prosecution:

Exhibit No.Description of the ExhibitDate/attested by

1 Signature of informant in

Fardbayan dated 18.10.1991

01.12.1994/

PW5

2 Post Mortem Report 29.06.1995

3 Fardbayan 08.02.1996

4 Endorsement on the Fardbayan08.02.1996

5 Formal FIR 08.02.1996

6 Signature of the Judicial

Officer on the Test

Identification Chart

27.03.1996

11. The defence has neither adduced any evidence nor

produced any paper in support of their innocence.

12. After closure of the prosecution evidence, the

statement of the appellant was recorded under Section 313 of the

Code of Criminal Procedure on 24.05.1996. The appellant denied

all incriminating circumstances appearing against him in the

prosecution evidence and claimed his innocence. However, he

admitted that he had been identified by the informant (PW 5)

during the Test Identification Parade as one of the dacoits.

13. Learned Counsel appearing on behalf of the

appellant, at the very outset, has submitted that the judgment of

conviction is against the weight of evidence and has been rendered

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merely on the presumption of guilt. He further submits that the

prosecution has failed to prove its case beyond reasonable doubt

inasmuch as the testimonies of the prosecution witnesses suffer

from material contradictions and inconsistencies.

14. It is further submitted that the appellant was

arrested on 26.10.1991 and he was identified by the informant in

the Test Identification Parade conducted on 17.01.1992, i.e., after

three months of his arrest, which substantially diminishes its

evidentiary value.

15. The witnesses, who participated in the Test

Identification Parade, were P.W.1, P.W.3, P.W.5, and P.W.9. but,

except P.W.5 (informant), none of the other witnesses identified

the appellant during the Test Identification Parade. It is, thus,

contended that a Test Identification Parade is not substantive

evidence and serves only as an aid to investigation. In the present

case, the conviction rests only upon the solitary identification

made by P.W. 5 in the Test Identification Parade, and in the

absence of any other reliable corroborative evidence, it would be

wholly unsafe to sustain the conviction on the basis of such

solitary identification.

16. Learned Counsel next submits that the specific

allegation of firing has been attributed against co-accused

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Kanhaiya Manjhi and not against the present appellant. It is

further submitted that the appellant has not been convicted under

Section 120-B of the Indian Penal Code. Moreover, no firearm,

looted article and/or any other incriminating material, connecting

the appellant with the present offence was ever recovered from his

possession or at his instance, thereby rendering the prosecution

case against him highly doubtful inasmuch as there is land dispute

existed between the parties, which furnished a strong motive for

the false implication of the appellant in the present case. The

appellant is the brother of Kamleshwari Mandal, who is the son-

in-law of Draupadi Devi, and are neighbour of the informant. Both

of them were made accused in this case and faced the trial, but

they were acquitted. Therefore, there is a possibility that the

appellant was knowing the appellant from before.

17. In view of the aforesaid facts and circumstances,

learned Counsel for the appellant submits that the impugned

judgment of conviction is fit to be set aside as the prosecution has

miserably failed to prove its case beyond reasonable doubts.

18. In support of his submission, learned Counsel for

the appellant has placed reliance on the decisions of the Supreme

Court, in the cases of Iqbal and Another v. State of U.P.,

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reported in 2015 (6) SCC 623 and Siddanki Ram Reddy v. State

of A.P., reported in 2010 (7) SCC 697.

19. On the other hand, learned Additional Public

Prosecutor appearing on behalf of the State has submitted that the

learned Trial Court, after considering entire evidences on record

and exhibits has rightly convicted the appellant as the offence

alleged against the appellant appears to be serious in nature. It is

contended that during the Test Identification Parade, the informant

identified the appellant and that the prosecution witnesses

examined during trial have also supported the prosecution case.

20. It is, therefore, submitted that the impugned

judgment of conviction does not suffer from any legal infirmity, or

irregularity, warranting interference of this Court. This appeal is

devoid of any merit and fit to be dismissed.

21. I have heard the parties and perused the materials

available on records.

22. It would be apposite to discuss the

oral/documentary evidences as available on record to re-

appreciate the evidence for just and proper disposal of the present

appeal.

23. First of all, I would like to go through the medical

evidence. PW-6 is Dr. Hari Narayan Singh, who had conducted

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the post mortem on the dead body of deceased Veer Narayan

Manjhi on 19.10.1991 at 09:30 AM. The doctor (PW 6) has found

following injuries:

“Rigor mortis present in both upper and

lower extremeties.

Injuries: (i) One small penetrating injury

with inverted margin with excoriating of skin around it

(small-about ½ cm diameter) on the upper part of left

chest near 2

nd

and 3

rd

ribs-entry of bullet

(ii) one penetrating injury on the back in

left side with everted margins (abut 1½ cm in

diameter) near 4

th

-5

th

ribs-exit, situated between the

fourth and sixth ribs. According to the witness, this

was the wound of exit.

On dissection, Skull- normal, chest-3rd rib

in left side fractured, left lung-torn, right lung-normal,

heart-empty-left side of chest cavity with full of blood,

Abdomen-Liver, Spleen, Kidney-normal, Stomach

contained semi digested food, Small Intenstine-

contained gas, Bladder was empty.”

24. According to the doctor (PW 6), the death was due

to hemorrhage and shock, caused by above mentioned injuries,

which has been caused by fire arms.

25. This witness (PW 6) further deposed that the post-

mortem report was prepared in his own handwriting and bore his

signature. The post-mortem report was marked as Exhibit-2.

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26. The findings of the doctor and his opinion, with

regard to the injuries have not been in dispute at the trial. I, too, do

not notice anything inherently improbable or incorrect in the

findings of the doctor or his opinion, with regard to the cause of

injuries given by him.

27. Now, coming to the other witnesses, PW 1, Abdul

Gaffar, a co-villager of the informant, has simply been tendered

for cross-examination, who deposed that his house is situated to

the west of the house of the informant to some distance.

28. PW 2, Abdul Mannan, a co-villager of the

informant, in his examination-in-chief, has deposed that in the

midnight, upon hearing some commotion, he woke up and

proceeded towards the house of Veer Narayan Mandal. This

witness has also admitted that he had not seen any of the

miscreants. He saw the dead body of Veer Narayan Mandal and

came to know that dacoity had been committed. This witness had

not heard the sound of bomb or gun shot. The deceased was

assaulted by the dacoits. He met Arun Deo Mandal, the brother of

the deceased, but did not ask anything.

29. In his cross-examination, this witness (PW 2) has

stated that he knew Rizwan, who was his neighbour and Rizwan

had reached the place of occurrence before him.

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30. To the court question, this witness (PW 2) has

stated that when he reached the place of occurrence, 100 persons

of the mohalla were already there and this witness (PW 2) had

named some of them. This witness has further stated that his

house was situated four to five houses from the house of Veer

Narayan Mandal.

31. PW 4, Abhinandan Mandal, is the co-villager of

the informant. He has deposed, in his examination-in-chief, that in

the night of the occurrence, he woke up on hearing the sound of

gunfire and went to the house of the informant along with others

and saw the dacoits standing at the door and were flashing torches.

However, he could not see the faces of the dacoits. After

committing the loot, the dacoits fled away. Subsequently, he found

Veer Narayan dead in the aangan. He had sustained a bullet injury.

32. Nothing specific or relevant has been extracted

from the cross-examination of this witness (PW 4).

33. PW 9, Md. Rizwan, a co-villager, in his

examination-in-chief, has deposed that he proceeded towards the

house of Arun Deo Mandal along with other villagers, who were

carrying torches, on hearing the sound of gun shot coming from

the house of Arun Deo. He also deposed that in the light of the

torches, he saw one person armed with a gun standing near the

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door of Arun Deo Mandal. This witness (PW 9) deposed that

about ten to eleven other persons were present in the aangan of

Arun Deo and started fleeing away. The villagers chased them and

during the chase, the torches continued to remain lit. He further

deposed that after the miscreants fled away, he entered into the

aangan of Arun Deo Mandal and found Veer Narayan Mandal

lying dead with a gunshot injury. This witness also heard the

women present in the courtyard saying that the dacoits had

committed loot and had killed. The witness further deposed that

the police came and recorded their statements and of Arun Deo.

34. This witness (PW 9) further deposed that he had

identified one person in the Test Identification Parade whom he

had seen on the date of occurrence. In Court, he identified accused

Kanhaiya Manjhi, present in the dock, as the same person whom

he had identified during the Test Identification Parade.

35. In the cross-examination of behalf of Kanhaiya

Manjhi, this witness (PW 9), has deposed that the house of Arun

Deo Mandal is five to six houses from his house. He further

deposed that more than fifty villagers had gathered at the time of

occurrence. He admitted that he had no torch, but Md. Mohiuddin

and Anant Mandal had torches and several other villagers were

also carrying torches, but he could not say their names. This

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witness claimed to have identified the dacoits while they were

fleeing and some dacoits had wrapped turbans or cloths.

36. This witness (PW 9) has further deposed that the

police had recorded his statement and he had not noticed any

special mark on anyone. On seeing accused Kanhaiya Manjhi in

Court, he stated that the accused appeared to be dark-

complexioned and bore pockmarks on his face (this witness was

brought closer to the accused Kanhaiya Manjhi).

37. This witness ((PW 9) further deposed that he had

participated in the Test Identification Parade approximately three

months after the occurrence and he had identified one persons out

of them and he had not wrongly identified anyone. He further

deposed that other witnesses had also been brought for the Test

Identification Parade on the same day. The Darogaji had also

come inside the jail and was sitting at the place where the Test

Identification Parade was being conducted. However, according to

him, the Police did not help him and merely remained seated

there. He further stated that he could not say whether there were

any other dark-complexioned persons with pockmarks on their

faces standing in the identification parade line-up. According to

him, the accused was standing along with 22 to 23 other persons.

This witness (PW 9) further deposed that he remained inside the

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identification parade room for about ten minutes. After he

completed the identification process, he was taken out and another

witness was called inside. According to him, the witnesses were

kept separate and did not meet with each other during the process.

He denied the suggestion that accused Kanhaiya Manjhi was not

involved in the dacoity and at the instance of Darogaji, he had

identified the accused Kanhaiya Manjhi.

38. In his further cross-examination, this witness (PW

9) has deposed that he had been residing in village Dhruv Bilas

since his childhood and he knew Draupadi Devi, whose house was

situated adjacent to that of Arun Deo Mandal (informant). He also

knew her son-in-law, Kamleshwari Mandal, but stated that he did

not know Maheshwar Mandal.

39. Now, coming to the depositions of the two eye-

witnesses of the occurrence, i.e. PW 3 (Sadanand Mandal) and

PW 5 (Arun Deo Mandal, informant of this case).

40. PW 3, Sadanand Mandal is the brother of the

informant. This witness, in his examination-in-chief, has deposed

that in the night of 17.10.1991 at about 12:00, he was sleeping at

the door of his house along with his brother, Arun Deo Mandal

and his father. Dacoits came, armed with lathis and guns. They

flashed torch and assaulted them. He identified one of the dacoits

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and had identified him in the Test Identification Parade, as

Kanhaiya Manjhi. This witness has further deposed that dacoits

looted cash and other articles from his house. At the time of

dacoity, there was sound of gun shot. When the villagers rushed,

the dacoits fled away. This witness (PW 3) found his elder brother,

Veer Narayan, dead. He was shot.

41. In the cross-examination on behalf of Kanhaiya

Manjhi, this witness (PW 3) has deposed that he had described the

physical features of the dacoits to the police and that one of the

eyes of the accused was defective and there were pockmarks

(chickenpox) on his face. This witness (PW 3) has further deposed

that he, along with 6 to 7 other persons, participated in the Test

identification Parade about 10 to15 days after the occurrence. The

police took him for identification in the jail. This witness (PW 3)

further deposed that the Magistrate called the persons. Eight to ten

Some had their faces covered while 3–4 had their faces

uncovered. The face of the accused was uncovered. Identification

was done in ten minutes.

42. This witness (PW 3) has denied the suggestion that

he had identified wrong person and he knew from before.

43. In the cross-examination on behalf of rest of the

accused persons, this witness (PW 3) has deposed that Draupadi

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Devi was the sister-in-law of his co-sharer (Gotiya) and her house

was adjacent to his house. This witness was not aware of the fact

that Kamleshwawri was the son-in-law of Draupadi Devi.

Draupadi Devi had a girl, but he did not know her name.

44. PW 5, Arun Deo Mandal is the informant of this

case and the brother of the deceased. This witness, in his

examination-in-chief, has deposed that on 17.10.1991, at about

12:15 A.M., a dacoity took place in his house when he was

sleeping at the door of his house, while his elder brother, Veer

Narayan Mandal, was sleeping inside the house. Upon hearing

commotion in the courtyard, he woke up and entered into the

courtyard, where he saw 7–8 persons armed with lathis, bhalas,

guns, torches and other weapons. The miscreants were flashing

their torches. They abused him, threatened him to remain silent

and demanded money. Thereafter, they broke open the almirah and

removed cash Rs. 400/-, one Philips radio and other articles. He

further deposed that in the light of the torches held by the dacoits,

he identified two of them by face. During the occurrence, the

dacoits shot dead his elder brother, Veer Narayan Mandal, at the

spot. After committing the dacoity and looting the articles, the

dacoits fled towards the western direction.

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45. This witness (PW 5) has further deposed that he

had identified the two dacoits during the Test Identification

Parade. In Court, he identified accused Kanhaiya Manjhi. He also

stated that he will identify the second accused, Maheshwari

Mandal, who was absent on that day. He further deposed that in

the morning of next date, he went to the police station where his

fardbayan was recorded by Darogaji, on which he put his

signature. This witness (PW 5) proved his signature on the

fardbayan, which was marked as Exhibit-1. He further deposed

that the Darogaji tad taken his restatement.

46. In the cross-examination on behalf of all the

accused except Kanhaiya Manjhi, this witness (PW 5) has deposed

that Draupadi Devi was not related to him and that he did not

know the name of her husband. He further deposed that it is not

correct that Draupadi Devi's husband was Bhumi Mandal, who is

the son of Bhagan Mandal and Bhagan Mandal was the son of

Siya Mandal. He deposed that the house of Draupadi Devi was

situated in the same village, about 200–300 yards west of his

house. He further deposed that two or three days after the

occurrence, he had gone to her house along with the police and

she is of different caste. He admitted that his father had purchased

a land from Draupadi Devi one or two years prior to the

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occurrence and further clarified that no money remained due. He

further deposed that Draupadi Devi had one son and one daughter,

though he did not know their names. He stated that both daughters

were married but he could not say where they had been married.

He further deposed that there were two groups of the caste of the

informant (PW 5) and Draupadi Devi belonged to a different

group. When he visited her house along with the Darogaji, none of

her relatives were present there. He could not state after how

many months from the occurrence, the Test Identification Parade

was conducted, but stated that it was held in Purnea Jail. He stated

that he had informed the police that he identified the dacoits by

their faces in the light of torches they were carrying. He further

deposed that the place of occurrence is on the way to the aangan

and there is a door and no other way to go into the aangan. He

further deposed that when he entered the courtyard, he saw some

of the dacoits were wearing towels (gamchas). According to him,

no dacoits had caught him. The dacoits had also assaulted his

younger brother and his father. He further deposed that villagers

arrived there only after the dacoits had left. He deposed that on

seeing his brother and father being assaulted, he hid himself

beneath a bed, and when the dacoits continuously assaulting them,

he came out and requested them not to beat them. He further

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stated that villagers, including Abhinandan Mandal, had

assembled there. According to him, three or four dacoits were

assaulting his brother and father, and thereafter they entered into

the courtyard.

47. This witness (PW 5) further deposed that his elder

brother and sister-in-law were hidden in another room. He

deposed that he identified two of the dacoits by face while they

were assaulting his father and during the Test Identification

Parade, he had told that he had identified those two dacoits when

they were assaulting his father. He further deposed that they had

no arms.

48. This witness (PW 5) has denied the suggestion that

Draupadi Devi was his cousin sister-in-law and Kamleshwari

Mandal was her son-in-law. He deposed that he did not know

whether Maheshwari Mandal was the brother of Kamleshwari

Mandal. This witness (PW 5) has admitted that he knew

Kamleshwari Mandal but he did not know his brother,

Maheshwari Mandal. He further denied the suggestion that he had

falsely implicated Draupadi Devi, her son-in-law and others in the

present case.

49. In the cross-examination on behalf of accused

Kanhaiya Manjhi, this witness (PW 5) has deposed that he went to

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the aangan after two to three minutes of hearing the sound of gun

shot. This witness (PW 5) has further deposed that he had given

the details of the dacoits whom he had identified by face. While

identifying accused Kanhaiya Manjhi in Court, he stated that the

accused was blind in one eye and had pockmarks on his face. He

further deposed that during the Test Identification Parade, the

suspects were mixed with 12–13 other persons and all of them had

their faces uncovered. He also stated that Draupadi Devi and his

father did not have the same khatiyan and this witness (PW 5) has

denied that he has falsely implicated accused Kanhaiya Manjhi.

50. PW-7, Niranjan Prasad Mandal, at the relevant

time, was posted in Jankinagar Police Station and was Incharge of

that Police Station. This witness, in his examination-in-chief, has

deposed that that on 18.10.1991, at village Dhruv Bilas, under

Jankinagar Police Station, he had recorded the fardbeyan of Arun

Deo Mandal (PW 5). He further deposed that the formal First

Information Report was also drawn by K.D.M. Azad, the Officer-

in-Charge of Banmankhi Police Station. The witness identified the

handwriting and signature of K.D.M. Azad on the formal First

Information Report (Exhibit-4). He further deposed that during the

investigation, he took the restatement of the informant (PW 5) and

proceeded to inspect the place of occurrence. He found that the

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informant's thatched house consisted of two rooms, one room was

east-facing while the other was in the east-west direction. There

was a veranda in front of the room and another veranda towards

the east. A courtyard was situated in the middle of the house and a

kitchen was located to the north of the courtyard. The witness

further deposed that the dead body of Veer Narayan Mandal was

lying inside the room facing the entrance of the east-facing room.

He found a firearm entry wound in the back of the deceased and a

corresponding exit wound on the chest. Outside the residential

portion of the house, there was a sitting room containing a wooden

almirah, the lock of which was found broken. To the west of the

informant's house, the thatched house of Draupadi Devi was there.

He also found the latch of the door of the informant's sitting room

broken. Thereafter, he prepared the inquest report of the deceased

in the presence of witnesses and thereafter sent the body for its

post-mortem. He also recorded the statements of other witnesses

during the investigation.

51. This witness (PW 7) further stated that during

investigation, evidence surfaced regarding the involvement of

accused Maheshwar Mandal @ Bachchi Mandal (present

appellant), Kanhaiya Manjhi and Draupadi Devi in the

commission of the offence. Maheshwar Mandal was arrested,

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while Kanhaiya Manjhi, who was in judicial custody in

connection with some other case, was remanded in this case. The

said suspects were sent up for Test Identification Parade, who

were identified by the witnesses during the Test Identification

Parade.

52. In the cross-examination on behalf of accused

Maheshwar Mandal, Kamleshwari Mandal and Draupadi Devi,

this witness (PW 7) has deposed that during investigation, no

torch was produced before him. He found blood-stained soil was

present at the place where he had prepared inquest report, but he

had not seized the blood-stained soil.

53. In his cross-examination on behalf of accused

Kanhaiya Manjhi, this witness (PW 7) has deposed that the

inquest report had not been incorporated in the case diary.

54. PW-8, Satyendra Nath Thakur, at the relevant time,

was posted in the Civil Court, Purnea, as Judicial Magistrate and

the Officer had conducted the Test Identification Parade on

17.01.1992. He deposed that the learned Chief Judicial Magistrate,

Purnea, vide order, dated 14.07.1992, deputed him to conduct the

Test Identification Parade in connection with Banmankhi Police

Station Case No. 237 of 1991 and pursuant thereto, he conducted

the Test Identification Parade of accused Maheshwar Mandal @

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Bachchi Mandal and Kanhaiya Manjhi @ Sukhu Manjhi in Purnea

Jail, on 17.01.1992 in accordance with the prescribed procedure.

He further deposed that the witnesses, who participated in the Test

Identification Parade, were Arun Deo Mandal (PW 5), Sadanand

Mandal (PW 3), Tarani Mandal (not examined), Abdul Gaffar (PW

1), Mohammad Rizwan (PW 9) and Abhinandan Mandal (PW 4)

and before commencing the identification parade, the suspects

were mixed with nine other persons of similar appearance.

55. This witness (PW 8) has further deposed that Arun

Deo Mandal (PW 5) identified the appellant who was assaulting

the younger brother of the informant (PW 5) by means of lathi. He

further deposed that Arun Deo Mandal (PW 5) also identified

accused Kanhaiya Manjhi, who had fired bullet which hit the elder

brother of the informant and his brother died. PW 3, Sadanand

Mandal, identified Kanhaiya Manjhi, who had assaulted him and

his brother, Arun Deo Mandal. However, PW 3, Sadanand

Mandal, did not identify the appellant. Tarani Mandal (not

examined) failed to identify either of the suspects during the Test

Identification Parade. Similarly, PW 1, Abdul Gaffar, did not

identify any of the suspects. Mohammad Rizwan (PW 9)

identified accused Kanhaiya Manjhi and stated that he had seen

him fleeing from the place of occurrence, but he failed to identify

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the appellant. PW 4, Abhinandan Mandal, also did not identify any

of the suspects. After completion of the Test Identification Parade,

this witness (PW 8) prepared the identification parade report in his

own handwriting and signed the same (Exhibit-6).

56. In the cross-examination on behalf of accused

Maheshwar Mandal, Kamleshwari Mandal and Draupadi Devi,

this witness (PW 8) has deposed that the Investigating Officer had

not personally produced the identifying witnesses before him. He

deposed that the relevant records had been forwarded to him

through the office of the Chief Judicial Magistrate and this witness

instructed the staffs to call the witnesses. When this witness

proceeded to jail, the witnesses were waiting outside the jail

premises and were called one by one for the purpose of

identification. He further stated that each suspect was made to

stand with nine other persons during the identification parade.

This witness (PW 8) further deposed that accused Maheshwar

Mandal was firstly put up for identification. He also deposed that

signatures of the identifying witnesses were not obtained on the

identification parade chart. He further denied the suggestion that

Maheshwar Mandal was not kept with the persons having similar

appearance during the Test Identification Parade.

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57. In the cross-examination on behalf of accused

Kanhaiya Manjhi, this witness (PW 8) has deposed that Kanhaiya

Manjhi presently had pockmarks on his face and was blind by one

eye. He further admitted that he had not recorded in the

identification parade chart whether the accused produced before

him had pockmarks on his face. He admitted that apart from the

Test Identification Parade report (Exhibit-6), he had not prepared

any separate document in relation to the proceedings. He also

deposed that the identification parade chart did not disclose as to

how many other persons in the jail possessed similar pockmarks

or facial features.

58. Having carefully examined the entire evidence

available on record, this Court finds that a dacoity had taken place

in the house of the informant during the intervening night of

17/18.10.1991 and Veer Narayan Mandal, brother of the informant

(PW 5) died as a result of a firearm injury allegedly sustained

during the said dacoity.

59. However, the crucial question for determination is

as to whether the prosecution has been able to prove beyond

reasonable doubt that the present appellant was one of the

miscreants, who participated in the said dacoity so as to attract

criminal liability under Section 396 of the Indian Penal Code.

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60. It is an admitted position that the First Information

Report was instituted against unknown. The name of the present

appellant does not find place either in the First Information Report

or in the restatement of the informant (PW 5). The entire case of

the prosecution against the appellant, therefore, rests upon his

identification made by the informant (PW 5).

61. From the materials available on record, it

transpires that the appellant was arrested on 26.10.1991; whereas

the Test Identification Parade was conducted on 17.01.1992, i.e.

after nearly three months of his arrest. after a delay of nearly three

months. The Test Identification Parade was conducted on the

application of the Investigation Officer made before the learned

Chief Judicial Magistrate, on 14.01.1992, but the prosecution has

not furnished any explanation for such delay. Though delay in

holding a Test Identification Parade may not by itself be fatal in

every case, it is equally well settled that unexplained delay

substantially reduces the evidentiary value of such identification

and obliges the Court to scrutinize the evidence with greater

caution.

62. The evidence of PW 8, the learned Judicial

Magistrate, Purnea, who had conducted the Test Identification

Parade, assumes considerable significance. His testimony reveals

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that among all the identifying witnesses who participated in the

Test Identification Parade, only PW 5 (the informant), eye-witness

of the occurrence, identified the appellant. PW 3, brother of the

informant, eye-witness of the occurrence, who was admittedly

present at the place of occurrence and was allegedly beaten by the

dacoits, failed to identify the appellant. Likewise, PW 9, who

claimed to have seen the miscreants fleeing, participated in the

Test Identification Parade, also failed to identify the appellant.

Abdul Gaffar (PW 1) and Abhinandan Mandal (PW 4) similarly

failed to identify the appellant. Thus, the prosecution seeks to

sustain the conviction of the appellant solely on the basis of the

identification made by PW 5.

63. This Court is conscious of the fact that conviction

can, in an appropriate case, be founded on the testimony of a

solitary witness if the same is wholly reliable and inspires

confidence. However, where the witness identifies a previously

unknown accused for the first time in a delayed Test Identification

Parade and such identification remains uncorroborated by any

independent circumstance, the Court is required to seek assurance

from other evidence on record.

64. In the present case, no such corroboration exists.

No looted article was recovered from the possession of the

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appellant. No weapon was recovered at his instance. The

prosecution has also failed to establish any circumstance showing

the appellant's presence at or near the place of occurrence except

the solitary identification made by PW 5. Consequently, there is a

complete absence of independent corroborative evidence

connecting the appellant with the commission of the alleged

offence.

65. The evidence relating to identification also does

not inspire complete confidence. The occurrence admittedly took

place at about midnight. The prosecution case itself is that the

miscreants were unknown persons, who entered into the house

carrying torches. The only source of illumination available was

the torch allegedly flashed by the miscreants themselves.

66. The informant (PW 5) has stated that some of the

dacoits had covered themselves with gamchhas and that several

persons were involved in the occurrence. The description

furnished by the witnesses regarding the assailants was general in

nature, referring merely to differences in complexion, facial

structure and physical appearance. Such broad and vague

descriptions do not provide adequate assurance regarding the

correctness of identification after a considerable lapse of time.

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67. A significant contradiction is also apparent in the

testimony of PW 5, the informant, with regard to the identification

of the accused persons. In the fardbeyan, PW 5 merely stated that

in the torchlight, he had noticed one of the miscreants having

pockmarks (smallpox/chickenpox marks) on his face. However,

while deposing before the Trial Court, PW 5 went on to improve

his version by stating in his examination-in-chief that in the light

of the torches carried by the dacoits, he had identified two of the

miscreants by their faces. The said material improvement appears

to be an afterthought intended to strengthen the prosecution case

and, therefore, considerably diminishes the evidentiary value of

the identification of the appellant made by him (PW 5).

68. PW 8 has deposed that the identifying witnesses

were called by him, but from the evidence of the identifying

witnesses, it is crystal clear that they were summoned by the

police, who accompanied them to the jail. Not only this, one of the

witnesses, namely, PW 9, has deposed that the Darogaji had

accompanied them inside the jail premises and was sitting while

the Test Identification Parade was going on.

69. The Supreme Court, in the case of Umesh

Chandra and Others v. State of Uttarakhand, reported in

(2021) 17 SCC 616, in paragraphs 9 and 10, has held as under:

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“9. A Test Identification Parade under

Section 9 of the Evidence Act, is not a substantive

evidence in a criminal prosecution but is only

corroborative evidence. The purpose of holding a Test

Identification Parade during the stage of investigation

is only to ensure that the Investigating Agency prima

facie was proceeding in the right direction where the

accused may be unknown or there was a fleeting

glance of the accused. Mere identification in the test

identification parade therefore cannot form the

substantive basis for conviction, unless there are

other facts and circumstances corroborating the

identification.

10. But more important than that, the test

identification parade being a part of the investigation,

has to be proved by the prosecution as having been

held in accordance with law. The onus lies on the

prosecution to establish that the TIP was held in

accordance with law. It is only after the prosecution

prima facie establishes a valid TIP having been held,

the question of considering any objection to the same

arises. If the prosecution has failed to establish that a

TIP was properly held by examining the witnesses to

the same, there is nothing for the accused to disprove.

(Emphasis added by me)

70. The identification of the accused persons,

including the appellant, is also doubtful inasmuch as the

occurrence had taken place in the midnight and the only source of

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light was the torches allegedly carried by the miscreants

themselves. The informant has also admitted that some of the

miscreants had covered their faces with gamchhas. Further, the

description of the 7–8 accused given by the informant was vague

and general, referring only to differences in height, complexion

and facial appearance. Such broad descriptions are insufficient to

inspire confidence regarding the correct identification of unknown

persons.

71. After having discussed several lacunae in the case

of the prosecution, it remains an admitted position that the

prosecution case against the appellants rests primarily on the

sanctity of the Test Identification Parade.

72. The delay caused in conducting the Test

Identification Parade 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. v.

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 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

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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.

73. In the present case also, although the names of the

appellants had figured much earlier inasmuch as the appellant was

arrested just five days after the registration of the First information

Report on 26.10.1991, and the Test Identification Parade was

conducted on 17.01.1992. The inordinate delay in the conduct of

the T.I.P, making the entire procedure meaningless in the absence

of any explanation for the same.

74. 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 Wasif Haider

(supra). The T.I.P. also loses its sanctity on the ground as

discussed earlier that the accused may already be known to the

witness.

75. This Court would gainfully refer to the case of

Mulla and Another v. 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

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also taken into consideration the fact that T.I.P. does not 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.

76. Paragraph Nos. 43, 44, and 45 of Mulla (supra) is

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

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all or any of them could be cited as eyewitnesses of

the 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.”

77. Applying the aforesaid principles to the facts of the

present case, this Court is of the considered view that the

identification of the appellant by PW5 alone, in a delayed Test

Identification Parade, without any independent corroboration, is

insufficient to sustain a conviction for a grave offence punishable

under Section 396 of the Indian Penal Code. The evidentiary value

of the Test Identification Parade stands considerably weakened by

the unexplained delay and by the fact that none of the other

identifying witnesses could identify the appellant.

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78. After coming to the conclusion that the appellant’s

conviction cannot be based on the identification made by the sole

witness, i.e. the informant (PW 5) in the Test Identification Parade,

conducted three months after the arrest of the appellant, I would

like to go through the depositions of the witnesses.

79. PW 1 (Abdul Gaffar) has not uttered a word bout

the occurrence in his deposition.

80. It is the consistent case of the prosecution that the

dacoits fired upon the elder brother of the informant, due to which

he died; though PW 2, who is a hearsay witness, has deposed that

he had not heard the sound of bomb or bullet. PW 2, though

deposed that the deceased was assaulted by the dacoits, but he has

not disclosed the fact that from whom, he got this information

inasmuch as he has deposed that he met with the informant, but he

did not ask anything from him.

81. The informant has stated in the First Information

Report that the dacoits fired upon his elder brother, who was in the

room, but PW 4, who is a co-villager and came to the place of

occurrence on hearing the sound of firing, has claimed to see the

dacoits standing at the door and flashing torches.

82. The deposition of this witness (PW 4) is not

reliable inasmuch as the informant has alleged that soon after

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firing, the dacoits fled away, yet this witness, who came to the

place of occurrence on hearing the sound of firing from some

distance, claimed to have seen the dacoit6s standing at the door of

the house of the informant.

83. PW 9, who claimed himself to be a chance eye-

witness, has deposed that on hearing the sound of firing from the

house of the informant, he reached the place of occurrence which

is five to six houses away and saw one dacoit, armed with a gun,

near the door of the house of the informant. He further claimed

that the villagers chased the dacoits, but they fled away. It is not

the case of the prosecution that anybody chased the dacoits or even

tried to catch them. This witness has identified accused Kanhaiya

Manjhi in the Test Identification Parade, but did not identify this

appellant. PW 9, in his deposition, has also deposed that some

dacoits had wrapped turbans or clothes, which is contrary to the

version of the informant in the First Information Report.

84. One of the two main eye-witness to the occurrence

is PW 3, Sadanand Manjhi, the younger brother of the informant.

He, in his deposition, has stated that the dacoits were flashing

torches and have assaulted him. The prosecution has not brought

on record any injury caused to this witness as alleged in the First

Information Report and also in his testimony. Like PW 9, this

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witness has also identified accused Kanhaiya Manjhi in the Test

Identification Parade, but did not identify this appellant.

85. PW 5, who is the informant of this case, has

claimed in the First Information Report, that he saw only one

miscreant in the light of torch, but in the Test Identification parade,

he has identified two persons and in his deposition also, he has

claimed to have seen two miscreants. PW 3 has claimed in his

deposition that Draupadi Devi was the sister-in-law of his co-

sharer (gotiya), however, the informant refused any such relation

and deposed that Draupadi Devi was not related to him. This

witness has also deposed that three or four dacoits were assaulting

PW 3 and his father, yet no injury has been alleged to have caused

to them.

86. Significantly, there is no recovery of any looted

property or weapon from the appellant nor there is any

independent evidence corroborating his alleged involvement in the

occurrence. In these circumstances, it would be unsafe to sustain

the conviction solely on the basis of the identification made by PW

5. The cumulative effect of the infirmities in the prosecution case

creates a reasonable doubt regarding the appellant's participation in

the alleged dacoity.

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87. Because of the nature of evidence, which is

available on record, the least, which ought to have been done by

the learned Trial Court, was to accord benefit of reasonable doubt

to the appellant inasmuch as I am clearly of the view that in the

light of the evidence on record, which I have discussed above, it

was too hazardous to convict the appellant. The benefit of such a

situation ought to have been given to the appellant.

88. In the backdrop of what have been discussed and

pointed out above, I am of the considered view that the

prosecution had failed, in the present case, to bring home the

charge against the appellant beyond reasonable doubt and that the

appellant was entitled to be accorded benefit of doubt.

89. In the result, this appeal succeeds. The impugned

conviction of the appellant by the judgment, under appeal, and the

consequential sentence, passed under the impugned order, are

hereby set aside. The appellant is held not guilty of the offence,

which he stand convicted of, and is acquitted of the same under

benefit of doubt.

90. The appellant is in custody. He is directed to be

released forthwith from custody unless he is required to be

detained in connection with any other criminal case.

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91. The Registry is directed to return the Lower Court’s

Record forthwith along with a copy of this judgment.

(Anil Kumar Sinha, J.)

(Per: HONOURABLE MR. JUSTICE ALOK KUMAR )

1. I am in respectful agreement with all the conclusions

reached by Senior brother, Anil Kumar Sinha, J. This concurring

note is to express my view on two of the most important facets of

the case. The first is in respect to TIP (Test Identification Parade).

A Test Identification Parade is only a corroborative evidence.

Hence, mere identification cannot form the substantive basis for

conviction. It is quite clear that delay in conducting a TIP has

great and serious bearing on the credibility of the identification

process, it is imperative to hold the TIP at the earliest. Delay alone

does not automatically destroy the prosecution case but

unexplained delay weakens the evidentiary value of identification.

2. The Supreme Court in the case of Gireesan Nair and

Others v. State of Kerala (2022 INSC 1197) in para 46 has held

that,

"Undue delay in conducting a TIP has a

serious bearing on the credibility of the identification

process. Though there is no fixed timeline within

which the TIP must be conducted and the

consequence of the delay would depend upon the facts

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and circumstances of the case, it is imperative to hold

the TIP at the earliest.”

3. The second aspect is in respect to the infirmities in

prosecution case which leads to reasonable doubt. The infirmities

in a prosecution case are flaws that fail to meet the "beyond a

reasonable doubt" standard. "Beyond a reasonable doubt" is the

ultimate standard of proof in the legal system. It explains that the

prosecution must prove the guilt conclusively so that no

reasonable/rational person could come up with another

explanation based on evidence.

4. The ultimate benchmark of "beyond a reasonable

doubt" upholds the presumption of innocence in a legal system

which we follow. The presumption of innocence is the absolute

bedrock of a fair criminal justice system. It protects individuals

from wrongful, arbitrary imprisonment by demanding the state to

bear the burden of proof and to establish guilt beyond a reasonable

doubt, rather than burdening the accused to prove they are

innocent. The most celebrated landmark judgement on the "benefit

of doubt" and the "presumption of innocence" in Indian Legal

history is of three Judge Bench of the Hon'ble Apex Court in Kali

Ram vs. State of Himachal Pradesh (1972) 2 SCC 808, in para

25, the Apex Court held that,

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"Another golden thread which runs through

the web of the administration of justice in criminal

cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which

is favourable to the accused should be adopted. This

principle has a special relevance in cases wherein the

guilt of the accused is sought to be established by

circumstantial evidence. Rule has accordingly been

laid down that unless the evidence adduced in the case

is consistent only with the hypothesis of the guilt of

the accused and is inconsistent with that of his

innocence, the Court should refrain from recording a

finding of guilt of the accused. It is also an accepted

rule that in case the Court entertains reasonable doubt

regarding the guilt of the accused, the accused must

have the benefit of that doubt. Of course, the doubt

regarding the guilt of the accused should be

reasonable; it is not the doubt of a mind which is either

so vacillating that it is incapable of reaching a firm

conclusion or so timid that is hesitant and afraid to

take things to their natural consequences. The rule

regarding the benefit of doubt also does not warrant

acquittal of the accused by report to surmises,

conjectures or fanciful considerations. As mentioned

by us recently in the case of State of Punjab v. Jagir

Singh 1974 3 SCC 227 a criminal trial is not like a

fairy tale wherein one is free to give flight to one's

imagination and phantasy. It concerns itself with the

question as to whether the accused arraigned at the

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trial is guilty of the offence with which he is charged.

Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at

the conclusion about the guilt of the accused charged

with the commission of a crime, the Court has to judge

the evidence by the yardstick of probabilities, its

intrinsic worth and the animus of witnesses. Every

case in the final analysis would have to depend upon

its own facts. Although the benefit of every reasonable

doubt should be given to the accused, the Courts

should not at the same time reject evidence which is ex

facie trustworthy on grounds which are fanciful or in

the nature of conjectures".

5. The Hon'ble Supreme Court, in Goverdhan and

Another v. State of Chhattisgarh (2025 INSC 47), has reiterated

that reasonable doubt must not be an abstract or speculative doubt

but one based on reason, logic and the totality of the evidence on

record. The relevant portion as stated in para 21 of the aforesaid

judgement is reproduced as below:

"21. It will be relevant to discuss, at this

juncture, what is meant by "reasonable doubt". It

means that such doubt must be free from

suppositional speculation. It must not be the result of

minute emotional detailing, and the doubt must be

actual and substantial and not merely vague

apprehension. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt, but a fair doubt

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based upon reason and common sense as observed in

Ramakant Rai v. Madan Rai, (2003) 12 SCC 395,

wherein it was observed as under:

"24. Doubts would be called

reasonable if they are free from a zest for

abstract speculation. Law cannot afford any

favourite other than the truth. To constitute

reasonable doubt, it must be free from an

overly emotional response. Doubts must be

actual and substantial doubts as to the guilt of

the accused persons arising from the evidence,

or from the lack of it, as opposed to mere

vague apprehensions. A reasonable doubt is

not an imaginary, trivial or a merely possible

doubt; but a fair doubt based upon reason and

common sense. It must grow out of the

evidence in the case."

6. In view of the above, I must conclude that the

prosecution has failed, in the present case, to bring home the

charge against the appellant beyond reasonable doubt.

Prabhakar Anand/-

(Alok Kumar, J.)

AFR/NAFR AFR

CAV DATE 23.06.2026

Uploading Date 01.07.2026

Transmission Date 01.07.2026