RAM BAHADUR SAHANI vs STATE OF BIHAR

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.91 of 2005
======================================================
Ram Bahadur Sahani, Son of Late Bindeshwar Sahni, Resident of Village –
Izara, Police Station – Rahika, District – Madhubani.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 95 of 2005
======================================================
Maheshi Sah @ Mahesh Sah , Son of Chunchun Sah, Resident of Village –
Radhepura -Tola Yaddu Patty, Police Station – Bisfi (Patauna), District –
Madhubani.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 91 of 2005)
For the Appellant/s : Mr.Ajay Kumar Thakur, Adv.
Mr. Shivam, Adv.
Ms. Sushmita Mishra, Adv.
For the Respondent/s : Ms. Anita Kumari Singh.
(In CRIMINAL APPEAL (SJ) No. 95 of 2005)
For the Appellant/s : Mr.Ajay Kumar Thakur, Adv.
Mr. Shivam, Adv.
Ms. Sushmita Mishra, Adv.
For the Respondent/s : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
ORAL JUDGMENT
Date : 20-04-2026
1. Since both the appeals arise out of the same
judgment of trial Court, they have been heard together
and are being disposed of by this common judgment.
2. Both the appeals are arising out of the judgment

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of conviction and order of sentence dated 12.01.2005
and 15.01.2005 respectively passed in Sessions Trial No.
19 of 1993 /224 of 2003 on the file of Additional
Sessions Judge, Fast Track Court No. 1, Madhubani,
whereby, the appellant/Ram Bahadur Sahani in Criminal
Appeal (SJ) No.91 of 2005 and appellant /Mahesshi Sah
@ Mahesh Sah in Criminal Appeal (SJ) No.95 of 2005
were convicted for the offence punishable under Section
395 IPC and were sentenced to undergo rigorous
imprisonment for a period of 07 years.
3. The case of the prosecution as per the fardbeyan
of P.W.6/Bindeshwar Sahani is that in the intervening
night of 25/26.06.1992 at about 12.30. A.M., the
brother of the informant, namely, Raja Chaudhary
Sahani, nephews Jivneshwar Sahani and Mukteshwar
Sahani and Bhagina (Sister’s son) of Uday Kumar Sahani
were sleeping at east facing dalan i.e. west to the house
of the informant. The informant was sleeping with his
wife inside the house. He heard the noise of some

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persons assaulting Jivneshwar Sahani for opening the
door of the house. On that, the informant saw in the
torch light that about 6 to 7 persons armed with pistol
were asking about the informant and threatening to kill
Jivneshwar Sahani. In light of torch, the informant
noticed that the dacoits were aged around 20 to 25
years. Some of them were tall, some were of medium
height, while some were short. One person, who was thin
and tall and had a towel tied around his face, worn a
check shirt and a sheet wrapped around his body, was
holding a three cell torch in one hand and a pistol in
another hand, who seemed to be the leader of the
dacoits. Other dacoits were wearing vests and
underpants, most of them were speaking a local language
like Maithili. In the meantime, the informant’s brother
Chandeshwar Sahani opened the door from inside. On
that all the accused rushed pushing him, as a result
Chandeshwar Sahani fell down and sustained injuries.
About 8 to 10 dacoits entered the house and rest of the

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dacoits remained outside. The informant in order to save
his life escaped through back door of the house and
raised alarm in the village. The dacoits, who entered the
house of the informant looted the household articles from
the house. On hearing the alarm of the informant, the co-
villagers, namely; Badri Sharma, Suran Sharma, Ram
Avtar Sharma, Ramchandra Sahani and others gathered
nearby the house of Badri Sharma. At that particular
point of time, the informant along with other villagers set
on fire, two loads of straw. On which, one of the dacoits
who was standing outside the house hurled a bomb,
which exploded in the courtyard of house/Badri Sharma
causing injuries to him. The second bomb exploded
towards north of the road, causing injuries to the
villagers. After looting the articles, the dacoits threatened
the villagers not to inform the loot to anyone or else,
bombs will be hurled in the village and thereafter, they all
fled away towards the agricultural field. Later, the
informant returned to his house and noticed that the

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following articles were looted from the house:-
(i) Silver anklet, weighing around 10 bhar,price
around Rs. 1,000/-.
(ii) Silver neck band, weighing around 20 bhar,
price around Rs. 2,000/-
(iii) Gold nose ring, weighing around 600, 2 ana
bhar.
(iv) Red coloured cotton saree – 2 pieces, price
around Rs. 200/-
(v) Tericotton saree – 4 green coloured, price
around Rs. 500/-
(vi) Tericotton saree - 4 sky coloured and black
coloured 2, price around Rs. 500/-
(vii) Checkered blanket black and white , price
around Rs. 250/-
(viii) Old Citizen watch, price around Rs. 400/-
(ix) HMT Deputy watch and price around Rs.
150/-
(x) HMT Janta watch and price around Rs. 150/-
(xi) Ladies watch and price around Rs. 250/-.
(xii) Old Citizen ladies watch and price around Rs.
125/-
4. The dacotis, altogether looted the property worth
Rs. 5,625/-

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5. Basing on the said fardbeyan of the
informant/P.W.6, an F.I.R. was registered vide Bisfi P.S.
Case No. 0110/1992 at 6 P.M. on 26.06.1992, against
unknown offenders for the offence punishable under
Section 395 of IPC.
6. During the course of investigation the Police
arrested the accused/person including the appellants,
conducted Test Identification Parade and ultimately the
chargesheet was filed against six of the accused persons,
namely, Ram Bahadur Sahani (appellant in Criminal
Appeal (SJ) No.91 of 2005), Chandeshwar Sahani (case
split up), Maheshi Sah @ Mahesh Sah (appellant in
Criminal Appeal (SJ) No.95 of 2005), Bhola Sahani
(acquitted), Vishwanath Sahani and Rameshwar Sahani
(records of these two accused got separated from the
original), for the offence punishable under Section 395
IPC.
7. During the course of trial, the trial
Court framed charges against the appellants,

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for the offence punishable under Section 395 IPC, read
over and explained to them in Hindi language, for which
the appellants and other accused above-said, pleaded not
guilty and claimed to be tried.
8. Further, the record reveals that subsequent to
framing of charges, Accused/Chandeshwar Sahani was
declared as an absconder and his case was separated vide
order dated 27.02.2002. The case of accused Bishwanath
Sahani and Ramsresta Sahani was also separate vide
order dated 9/06/1994.
9. Altogether, the prosecution examined eight
witnesses and marked two exhibits which are as follows:-
P.W.1 Badri Sharma Co-villager of the
informant
P.W.2 Asharfi Sahani Tendered
P.W.3 Sumitra Devi Wife of informant
P.W.4 Archana Devi Tendered
P.W.5 Jivneshwar Sahani Tendered
P.W.6 Bindeshwar Sahani Informant
P.W.7 Shahid Khan JMFC, Madhubani
Civil Court
P.W.8 Ramchandra co-villager

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Sahani
Exhibit 1 fardbeyan
Exhibiti 2 Test Identification Parade
10. On completion of the prosecution evidence, both
the appellants were examined under Section 342 Cr.P.C.,
for which, the appellants pleaded innocent.
11. Considering the entire (oral and documentary)
evidence on record the trial Court convicted the
appellants as aforesaid.
12. The point for determination in theses appeals
are:-
(I) Whether the prosecution is able to prove the
guilt of the accused, for the offence punishable under
Section 395 IPC, beyond reasonable doubt?
(II) Whether the trial Court is right in convicting
the appellants for the offence punishable under Section
395 IPC?
(III) Whether the court can tender the evidence of

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witnesses i.e. P.W.s 2, 4 and 5 ?
(IV) Whether the Court can examine the accused
under Section 342 of Cr.P.C.?
13 Heard Mr. Ajay Kumar Thakur, the Learned
counsel for the appellants in both the appeals and Ms.
Anita Kumari Singh, the Learned Additional Public
Prosecutor for the State.
14. The Learned counsel for the appellants
specifically contended that the testimony of P.W.6 shows
a clear "improvement" and material contradiction from
the initial fardbeyan (Ext.-1). The fardbeyan of
informant/P.W.6, states that he fled through the back
door of the house out of fear, but in his evidence, he
admitted the fact that he himself opened the door. It is
further contended that the informant suppressed details
regarding his enmity with Bhola Sahani in the F.I.R. as
well as in the fardbeyan, thereby suggesting that the
appellants were implicated due to prior animosity. Finally,
the Learned counsel argued that the Test Identification

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Parade (T.I.P.) was conducted at a very belated stage;
therefore, it cannot be relied upon to convict the
appellants solely on the uncorroborated evidence of
P.W.6, and prayed to the set aside the Judgment of
conviction and the order of sentence passed by the trial
Court .
15. On the other hand, the Learned APP submitted
that as per Ext. 2/the Test Identification Parade dated
10.08.1992, there was no delay in conducting the Test
Indentification Parade and that the date ‘10.08.1995’
mentioned by the Judicial Magistrate (P.W.7) in court was
an inadvertent mistake. Considering the said fact,
judgment passed by the trial Court is legally sustainable
and, therefore, prayed for dismissal of the appeal and
affirmation of the judgment of conviction and order of
sentence under Section 395 IPC.
16. In order to decide the appeal, it is necessary to
re-appreciate the evidence of witnesses.
19. The evidence of P.W.1/Badri Sharma disclose that the

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incident occurred two years prior to the date of his
deposition. He specifically testified that at the midnight
while he was sitting in the courtyard, heard the noise of
dacoity. When he reached from veranda to courtyard, a
bomb got exploded, in which he sustained injuries to his
left ear and thigh. He specifically testified that he could
not identify anyone of the accused, as that of the dacoits.
17. In the cross-examination by one of the counsel
of the appellants/Maheshi Sah, it was admitted by P.W.1
that he was not the resident of that village.
18. The evidence of P.W.2/ Ashraf Sahani,
P.W.4/Archana Devi and P.W.5/ Jivneshwar Sahani
disclose that their examination in chief was tendered by
the trial Court.
19. In the cross-examination, P.W.2 testified that
it was a dark night when the occurrence took place and
that he could not identify anyone of the dacoits. Likewise,
P.W.4 also testified in her cross-examination that she
cannot identify the dacoits. Similarly, the evidence of

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P.W. 5 also disclose that although a lantern was hanging
at the door on the night of dacoity there was no other
sufficient source of light.
20. At this juncture, it is necessary to refer to the
judgment of the Hon’ble Apex Court in Sukhwant Singh
vs. State of Punjab reported in (1995) 3 SCC 367 ,
wherein their lordships have interpreted Section 138 of
Indian Evidence Act and held as follows:-
“9. - It would, thus be seen that Section 138
(supra) envisages that a witness would first be
examined-in chief and then subjected to cross
examination and for seeking any clarification, the
witness may be reexamined by the prosecution.
There is, in our opinion, no meaning in tendering a
witness for cross examination only. Tendering of a
witness for cross-examination, as a matter of fact,
amounts to giving up of the witness by the
prosecution as it does not choose to examine him
in chief. However, the practice of tendering
witnesses for cross examination in session trials
had been frequently resorted to since the
enactment of the Code of Criminal Procedure,
1898. The reason behind taking recourse to such a
practice, which undoubtedly is inconsistent with
Section 138 (supra), is not far to seek. Under that
Code as it stood prior to its amendment by Act 26
of 1955 a full fledged magisterial enquiry was to be
held, in a case which was triable exclusively by the
court of session or the High Court, in accordance

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with the procedure laid down in Chapter XVIII
thereof and in that enquiry prosecution was
required to examine all its witnesses. Under Section
288 of that Code the evidence of the witnesses so
recorded by the Committing Magistrate could be
treated, at the discretion of the Sessions Judge, as
substantive evidence at the trial. More often than
not, the prosecution taking advantage of the above
provision, used to ask for and obtain leave of the
Sessions Court to treat the depositions of those
witnesses whom they did not intend to examine
afresh, recorded in the committal enquiry as its
evidence in the trial and then tender them for
cross-examination. In other words, the prosecution
brought on record of the trial court and relied upon
the testimonies of some of the witnesses recorded
at its instance before the Committing Magistrate as
its evidence during trial and then tendered them for
cross-examination by the defence. It will be
pertinent to mention here that Act 26 of 1955
which amended the Code of 1898 restricted the
examination of prosecution witnesses in the
committal enquiry in respect of cases instituted on
police report only to those who were to give an
ocular version of the incident only.
10.- The question as to whether such a practice
was legal and valid in view of Section 138 (supra)
and, if so, to what extent and in what manner it
could be adopted came up for consideration by
different High Courts.
11. In Veera Koravan v. Emperor [AIR 1929 Mad
906 : ILR 53 Mad 69] a Division Bench of the
Madras High Court opined that merely tendering of
a prosecution witness for cross-examination is not
a practice which should be encouraged specially in
a murder case as the procedure would be unfair to

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an accused
12. In Sadeppa Gireppa Mutgi v. Emperor [AIR
1942 Bom 37 : ILR 1942 Bom 115] Beaumount,
C.J. speaking for the Division Bench of the Bombay
High Court opined:
“The other Kakeri witness is Shambu, (Ex.
34) and a very irregular course was adopted
with regard to him. He was tendered for
cross-examination. The practice of tendering
witnesses for cross examination, which is no
doubt often adopted, is inconsistent with
Section 138, Evidence Act, which says that
witnesses shall be first examined-in-chief,
and then, if the adverse party so desires,
cross-examined, and, if the party calling him
so desires, re-examined. It is obvious that if
a witness is examined by the defence without
having given any evidence-in-chief, he is not
being cross-examined, by whatever name the
process may be described. The practice of
tendering for cross-examination should only
be adopted in cases of witnesses of
secondary importance. Where the
prosecution have already got sufficient
evidence on a particular point, and do not
want to waste time by examining a witness
who was examined in the lower court, but at
the same time do not want to deprive the
accused of the right of cross-examining such
witness, they tender him for cross-
examination. But, I think, strictly speaking,
the witness ought to be asked by the
prosecution, with the consent, of course, of
the pleader for the accused, and the leave of
the Judge, whether his evidence in the lower
court is true. If he gives a general answer as

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to the truth of his evidence in the lower
court, he can be cross examined on that. But
he must in some way be examined-in chief
before he can be cross examined. However,
the practice of tendering a witness for cross-
examination certainly should not be
employed in the case of an important
eyewitness.”
13. A Full Bench of the Bombay High Court in
Emperor v. Kasamalli Mirzalli [AIR 1942 Bom 71 :
ILR 1942 Bom 384] approved the opinion of
Beaumount, C.J. (supra) and ‘condemned’ the
practice of tendering a witness for cross
examination in no uncertain terms.
14. A Division Bench of the Punjab High Court in
Kesar Singh v. State [AIR 1954 Punj 286 : 56 Cri
LJ 86] after analysing the provisions of Sections
137 and 138 of the Evidence Act, followed the law
laid down by the Full Bench of the Bombay High
Court in Kasamalli case [AIR 1942 Bom 71 : ILR
1942 Bom 384] and observed:
“The other witness of this fact is Jai Ram PW
21 who was tendered for cross examination,
but he was not cross-examined. That again
in my opinion is no evidence. The law in
regard to examination of witnesses is
contained in Sections 137 and 138, Evidence
Act. There is no provision in that Act for
permitting a witness to be tendered for cross
examination without his being examined-in-
chief and this practice is opposed to Section
138 of the Act.”
15. In Dhirendra Nath v. State [AIR 1952 Cal
621 : 53 Cri LJ 1427] a Division Bench of the
Calcutta High Court held:
“There is a type of case where witnesses of a

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secondary importance who have been
examined before the Committing Magistrate
are not called before the Sessions Court,
because the prosecution considers that it has
already had a sufficient body of evidence on
the point concerned and then in fairness to
the defence, it tenders those witnesses for
cross-examination. But the fact that the
witness is tendered for cross examination
means and implies that there has been some
examination-in-chief. As far as I can see, the
only practical way in which a witness can be
tendered for cross-examination is by asking
him generally, may be by a single question,
in the Sessions Court as to whether the
statements made by him before the
Committing Magistrate were true and on his
answering in the affirmative, tendering the
evidence given in the Committing
Magistrate's court which would then serve as
the examination-in-chief. Unless the
examination-in chief is brought on the record
in that fashion, I cannot understand on what
the defence will cross-examine the witness
tendered for cross examination. It does not
appear from the record in this case that the
evidence of the witness before the
Committing Magistrate was brought on the
record at all. In those circumstances,
tendering for cross-examination seems to me
to have been almost meaningless.”
16. In Chhota Singh Hira Singh v. State [AIR 1964
Punj 120 : (1964) 1 Cri LJ 350] the Punjab High
Court held:
“Tendering a witness for cross-examination is
almost tantamount to giving up a witness.

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There is nothing in law that justifies such a
course. The trial courts adopt this manner of
examining witnesses simply to lighten their
burden, but it is not realised that in a serious
case like the present murder case when the
learned trial Judge failed to examine Wazira
PW 5, he was very seriously remiss in his
duty.”
17. A Division Bench of the Kerala High Court in
Thazhathethil Hamsa v. State of Kerala [AIR 1967
Ker 16 : 1967 Cri LJ 73] observed:
“In this connection we wish to clarify the
mistaken impression which the learned Judge
seems to have entertained about the
propriety of the procedure adopted by the
prosecution in tendering eyewitnesses for
cross-examination. PW 10 who had given
evidence in the Committing Court as an
eyewitness was tendered for cross-
examination in the Sessions Court after he
made a bald statement that he has correctly
stated all he knew about the incident in the
enquiry court. The learned Judge has
evidently relied on an observation made by
the Patna High Court in Manzurul Haque v.
State of Bihar [AIR 1958 Pat 422 : 1958 Cri
LJ 931] , to find that such a procedure is
proper. But it is really not. The very decision
relied on by the learned Judge started by
enunciating the principle thus:
‘The practice of tendering witnesses
leads to considerable confusion and is
to be deprecated. A material witness
should not be merely tendered but
should be sworn and asked to give
evidence by the prosecution. Tendering

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if at all should be confined to
witnesses of secondary importance.’ ”
18. Thus, it is seen that the Bombay, Kerala,
Calcutta, Madras and Punjab High Courts have
notwithstanding the provisions of Section 288 of
the Code of 1898 consistently taken the view that
there is no procedure whereby the prosecution is
permitted to tender a witness for cross-examination
only, without there being any examination-in-chief
in relation to which, such a witness can be cross-
examined. The practice of tendering a witness for
cross examination has been consistently
discouraged and even condemned by these High
Courts and in our opinion rightly. Our attention has
not been drawn to any judgment of any other High
Court which may have taken the contrary view.
19. In State of U.P. v. Jaggo [(1971) 2 SCC 42 :
1971 SCC (Cri) 401 : AIR 1971 SC 1586] which
has been referred to and relied upon by the
prosecution and the trial court for adopting the
procedure of tendering PW 4 and PW 5 for cross-
examination only in our opinion, has not been
properly appreciated and has been misapplied. That
judgment cannot be read to lay down, as a matter
of legal proposition, that a witness can be
‘tendered’ for cross-examination even without there
being any examination in-chief. If there is some
earlier statement of the witness recorded by a
competent court or an affidavit filed in the trial
court and the witness testifies to the correctness of
that earlier statement at the trial, it may (in certain
cases of witnesses of a formal nature) as noticed
earlier be permissible to tender him for cross-
examination after he is sworn to the correctness of
the earlier statement, because in that event that
earlier statement is treated as the examination-in-

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chief of the witness but that is not the same thing
as tendering a witness for cross-examination only,
without there being any examination in-chief on the
record. In Jaggo case [(1971) 2 SCC 42 : 1971
SCC (Cri) 401 : AIR 1971 SC 1586] a Bench of
this Court was considering the question whether
the mere presentation of an application by the
prosecution to the effect that a certain witness had
been “won over” was conclusive of the allegation
that he had been so “won over” and the
prosecution was therefore relieved of its obligation
to examine him at the trial. The proposition was
negatived and it was in that context, that this Court
observed:
“On behalf of the appellant it was said that
Ramesh Chand was won over and therefore
the prosecution could not call Ramesh. The
High Court rightly said that the mere
presentation of an application to the effect
that a witness had been won over was not
conclusive of the question that the witness
has been won over. In such a case Ramesh
could have been produced for cross
examination by the accused. That would
have elicited the correct facts. If Ramesh
were an eyewitness the accused were
entitled to test his evidence particularly when
Lalu was alleged to be talking with Ramesh
at the time of the occurrence.”
20. The Division Bench, therefore, was
considering a peculiar fact situation in that
case and even in that context it was
observed that the witness “could have been
produced for cross-examination by the
accused” and that “the accused were entitled
to test his evidence”. The observations of the

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Division Bench in Jaggo case [(1971) 2 SCC
42 : 1971 SCC (Cri) 401 : AIR 1971 SC
1586] , therefore, do not support the view
that a material witness can be ‘tendered’ for
cross examination only. The observations
from a judgment of this Court cannot be
read in isolation and divorced from the
context in which the same were made and it
is improper for any court to take out a
sentence from the judgment of this Court,
divorced from the context in which it was
given, and treat such an isolated sentence as
the complete enunciation of law by this
Court. The judgment in Jaggo case [(1971)
2 SCC 42 : 1971 SCC (Cri) 401 : AIR 1971
SC 1586] has in our opinion been
misappreciated and that judgment cannot be
interpreted as a sanction from the Supreme
Court to the prosecution to adopt the
practice of tendering a witness for cross
examination only, without there being any
examination-in-chief, in relation to which the
witness has to be cross examined. All that
the judgment in Jaggo case [(1971) 2 SCC
42 : 1971 SCC (Cri) 401 : AIR 1971 SC
1586] emphasise is that the mere ipse dixit
of the prosecutor that a particular witness
has been won over is not conclusive of that
allegation and the Court should not accept
the same mechanically and relieve the
prosecutor of his obligation to examine such
a witness. It was for this reason suggested
by the Bench that where the prosecution
makes such an allegation, it must keep the
witness in attendance and produce him to
enable the defence to cross-examine such a

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witness to test his evidence as well as the
allegations of the prosecution and bring out
the truth on the record. After the coming into
force of the
Criminal Procedure Code, 1973, which
replaced the Code of 1898, recording of
evidence in commitment proceedings has
been totally dispensed with and Section 288
of that Code has been omitted.
Consequently, the course suggested by some
of the High Courts in the earlier quoted
judgments regarding tendering of a witness
for cross-examination who had been
examined in the committal court, is also no
more relevant or available. The Jaggo case
[(1971) 2 SCC 42 : 1971 SCC (Cri) 401 :
AIR 1971 SC 1586] , which was decided
when the Code of 1898 was operating in the
field could not, therefore, be pressed into
service by the trial court while dealing with
the instant case tried according to the Code
of 1973. Thus considered, it is obvious that
the trial court, wrongly permitted the
prosecution to tender PW 4 and PW 5 for
cross-examination only. Both PW 4 and PW 5
were, according to the prosecution case
itself, eyewitnesses of the occurrence and
had removed the deceased to the hospital.
Their evidence was, of a material nature
which was necessary for the unfolding of the
prosecution story. The effect of their being
tendered only for cross examination amounts
to the failure of the prosecution to examine
them at the trial. Their non-examination, in
our opinion, seriously affects the credibility of
the prosecution case and detracts materially

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from its reliability.”
21. On perusal of the contents of the aforesaid
judgment, tendering of witness is not at all permissible by
the trial Courts after the amendment of Criminal
Procedure Code, 1973. The trial Court ought not to have
permitted the prosecution to tender the evidence of P.W.s
2, 4 and 5 and permitted the defence for their cross-
examination.
22. Admittedly, P.W.s 2, 4, and 5 are alleged to
be the eyewitnesses, to the dacoity that occurred on the
th th
intervening night of 25 /26 of June, 1992. However,
despite being projected as eyewitnesses to the incident,
none of them participated in the Test Identification
Parade (TIP). Furthermore, the prosecution has failed to
bring on record any statements allegedly recorded by the
Judicial Magistrate 1st Class under Section 164 of the
Cr.P.C. Likewise no statements recorded under Section
161 of the Cr.P.C., were brought on record during trial
either for the purpose of corroboration or for contradiction

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23. The evidence of these witnesses clearly
disclose that they could not identify the dacoits, as it was
dark in the night.
24. The evidence of P.W. 3/Sumitra Devi disclose
that the incident occurred at 12:30 A.M. while she was in
the company of her husband. This witness is the wife of
the Informant/Bindeshwar Sahani (P.W. 6). She deposed
that they woke up upon hearing a commotion and, on
peeping through the window, observed about eight to ten
people standing in the dalan, who were verbally abusing
her brother-in-law, father-in-law, and nephew. She
further testified that Jivneshwar Sahani opened the house
door, and Chandeshwar Sahani subsequently opened the
gate at instance of Jivneshwar Sahani. Approximately,
about five to six dacoits entered the house and looted
various household articles, including clothing, ornaments,
and watches.
25. During her cross-examination, she specifically
admitted that although she saw the dacoits, she could not

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identify any of them.
26. The evidence of P.W. 6 (the Informant)
th th
disclose that on the intervening night of 25 /26 of June,
1992, he was sleeping in his room along with his wife.
His father, son, nephews, aunt, and sister-in-law were
also present, and were sleeping in the dalan. At about
12:30 A.M., he woke up upon hearing a commotion and
through the window observed about six to seven dacoits
armed with three torches. According to him, the dacoits
were assaulting his nephew and demanding that the door
be opened. He further testified that, out of fear, he
opened the door and fled toward the village, to raise an
alarm, as a result of which co-villagers to assembled
there. He stated that the dacoits looted his house, took
away jewelry, clothes, and watches valued at
approximately Rs.6,000/-. Further, P.W. 6 claimed he
identified three of the dacoits in torchlight, who were
subsequently identified by him in the Test Identification
Parade (TIP) as Chandeshwar Sahani, Ram Bahadur

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Sahani, and Maheshi Sah. He further identified
Chandeshwar Sahani in open court, and his initial
statement (fardbeyan) was marked as Exhibit 1.
27. Upon a careful perusal of the evidence
provided by P.W. 3 and P.W. 6 who are husband and wife
and comparing it with the fardbeyan, it becomes evident
that the informant made material improvements in his
evidence. The fardbeyan, do not disclose the names of
the dacoits. Subsequently he improved his version during
his testimony by naming Chandeshwar Sahani as well as
both the appellants, namely, Ram Bahadur Sahani and
Maheshi Sah. It is relevant to mention that the F.I.R was
registered against unknown offenders.
28. The testimony of P.W. 3 is materially
inconsistent with that of P.W. 6. P.W. 3 deposed that
Jivneshwar Sahani opened the door but, P.W. 6 claims
that he himself opened the door. Further it contradicts
with the contents of his own fardbeyan, which states that
Bisheshwar Sahani was the one who opened the door. A

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significant disparity also exists regarding the identification
of the accused. P.W. 3, an alleged eyewitness remained
at the scene throughout the incident stated that she saw
the dacoits but could not identify them. Conversely, P.W.
6, who fled away through the back door out of fear,
claimed to have identified three dacoits, including the
appellants. The prosecution has failed to explain as to
why P.W. 6 did not disclose the names of the said three
persons in his fardbeyan, if he had in fact recognized
them at the time of the incident. Finally, the claim of
identifying the appellant in the source of torchlight
appears to be logically unsustainable.
29. P.W. 6 admitted during his cross-examination
that the night was dark and cloudy. Since the torches
were carried by the dacoits themselves the light would
naturally have been in the direction of the witnesses and
the interior of the house, thereby casting shadow on the
dacoits' faces. Consequently, the source of light would
have blinded the witnesses, rather than illuminating the

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facial features of the assailants thereby rendering a
reliable identification doubtful.
30. It is also admitted by P.W.6 that he identified
three of the dacoits in Test Identification Parade and all
the people who were standing in the line, were wearing
clothes of different colour, and different height, which
clearly disclose that the Magistrate, who conducted the
Test Identification Parade had not adhered to requirments
prescribed under Rule 34 of Criminal Rules of Practice
and Circular Orders, 1990. Rule 34 of Criminal Rules of
Practice and Circular Orders, 1990 reads as follows:-
34 Identification parades:
In conducting identification parades of suspects, the
-
Magistrate shall observe the following Rules.
(I) [(a) The Police should sent a requisition for
holding identification parade by the Magistrate as
nominated by the Sessions Judge. On such
requisition, the Magistrate shall conduct the
identification parade as expeditiously as possible.
(b)Where bail application is pending for the release
of the accused and on being informed so by the
Police Officer, the Magistrate shall as far as
possible fix a date earlier to the date of arguments
on the bail application and hold the identification

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parade.]
(ii) As far as possible, non-suspects selected for the
parade shall be of the same age, height, general
appearance and position in life as that of the
accused. Where a suspect wears any conspicuous
garment, the Magistrate conducting the parade
shall if possible, either arrange for similar wear to
other or induce the suspected person to remove
such garment.
(b)The accused shall be allowed to select his own
position and should be expressly asked if he has
any objection to the persons present with him or
the arrangements made. It is desirable to change
the order. in which the suspects have been placed
at the parade during the interval between the
departure of one witness and the arrival of another.
(iii) The witnesses who have been summoned for
the parade shall be kept out of the view of the
parade and shall be prevented from seeing the
prisoner before he is paraded with others.
(b)Before a witness is called upon to identify the
suspect, he should be asked whether he admits
prior acquaintance with any suspect whom he
proposes to identify. He shall also be asked to state
the marks of identification by which he can identify
the suspects.
(c)Each witness shall be fetched by a peon
separately. The witness shall be introduced one by
one and on leaving shall not be allowed to
communicate with witness still waiting to see the
persons paraded.
(iv)Every circumstances connected with the
identification including the act if any attributed to

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the person who is identified shall be carefully
recorded by the officer conducting it, whether the
accused or any other person is identified or not.
Particularly any objection by any suspect to any
point in the proceeding shall be recorded”.
31. As per the above provision, the non-suspects
selected for the Test Identification parade, are required to
be of the same age, height, general appearance and
position in line as that of the accused. The Magistrate
while conducting the parade, as far as possible, shall
arrange for similar clothing for all participants.
32. In the present case, Exhibit -2, the Test
Identification Parade proceedings do not disclose that the
Magistrate had complied with Rule 34 while selecting the
non-suspects as to the age and height or general
appearance particularly mentioned by P.W.6 in fardbeyan
as to the appearance of the dacoits.
33. The evidence of P.W.7/Judicial Magistrate-1st
Class clearly disclose that he had conducted the Test
Identification Parade on 10.08.1995 whereas the alleged
th
occurrence took place on the intervening night of 25 and

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th
26 June, 1992. Thus, the Court finds that there was an
inordinate delay of three years in conducting the Test
Identification Parade.
34. In this context, the Learned counsel for the
appellants relied on the judgment of the Hon’ble Apex
Court in the case of Rajesh Govind Jagesha vs State
Of Maharashtra vs. State of Maharashtra reported in
(1999) 8 SCC 428 , wherein, ther Lordships have held
as under:-
“Admittedly, in the FIR lodged, the name of
Accused 2 has not been mentioned. Accused 2 was
arrested on 20-1-1993 but the identification parade
was held on 13 -2-1993. There is no explanation
as to why the test identification parade was held
after an unexplained delay. Moreover, at the time
of identification parade, the appellant was not
having a beard and long hair as mentioned at the
time of lodging of FIR but no person with a beard
and long hair was included in the parade. The
witnesses are alleged to have identified Accused 2
at first sight despite the fact that he had removed
the long hair and beard. What prevented the
Magistrate from associating one or two persons
having resemblance with the persons named in the
FIR is a mystery shrouded with doubts and has not
been cleared by the prosecution. The possibility of
the witnesses having seen the said accused

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between the date of arrest and the test
identification parade cannot be ruled out .
35. The Learned counsel for the appellant also
relied upon the Judgment of the Hon’ble Apex Court in
the case of State of Andhra Pradesh vs Dr. M.V.
Ramana Reddy and Ors reported in (1991) 4 SCC
536 , wherein their lordships have held in para 16 and
23, which reads as under-
“ 16 The motive for the commission of the crime
was the indus- trial unrest occasioned on account
of the strike by the workers of the International
Packaging 'Company and later by the transport
workers. Indisputably accused No.1 commanded
considerable clout over the employees of various
industrial units such as the International Packaging
Company, Andhra Cotton Mills and the transport
industry in Proddatur.. Accused No. 1 was
championing the cause of the workmen during the.
prolonged agitation and strike by the workers of
the Inter-national Packaging Company and also
spearheaded the agitation by the transport
workers. The deceased was the lawyer for the
managements and was considered the main
obstacle, in the realisation of the workers demands.
There was, there- fore, animosity between the
deceased and accused No. 1. This is more than
clear from the oral evidence of PWs 2.3.4, 10.
11.21 to 23 and from the documentary evidence
tendered as Exhs. P-2 to P-5. P-30 to P-37 and P-
40 to P-55. In view of this overwhelming

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documentary evidence which corroborates the
ocular evidence of the aforesaid prosecution
witnesses, it is established beyond any manner of
doubt that the rival- ry between the trade unions
headed by accused No. 1 and the managements.
advised by the deceased had assumed ugly.
proportions. The starting of the INTUC branch at
Proddatur with the active participation of the
deceased was perhaps the last straw on the camel's
back which worsened the relations between
accused No. 1 and the deceased. This is the motive
according to the prosecution for the crime in
question. But as has often been commented bitter
animosity can be a double edged Weapon which
may be instrumental for deliberate false
involvement or for the witnesses wrongly inferring
and strongly believing (without having actually
witnessed it) that the crime must have been
committed by the rival group. This possibility has to
be kept in mind while evaluating the prosecution
evidence regarding the involvement of accused No.
1 and his companions in the commission of the
crime.
23. That takes us to the question of the
involvement of accused Nos. 3 and 5. The evidence
of PW 1 is that when she heard the cries of her
father she woke up and saw accused No. 1 and six
or seven others belabouring him. This means that
she did not know and could not identify the
companions of accused No. 1. However, when she
tried to raise an alarm three of the assailants
approached her and pinned her down to the bed,
and one of them threatened to stab her. He did
carry out his threat as is evident from the injuries
sustained by her. She Was able to identify two of
them 'at the identification parade held on May 23,

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1975. This is proved through the evidence of PW
14 who conducted the test identification parades.
Now accused 3 and 5 had surrendered before the
court on May 13, 1975. PW 14 received the
requisition for arranging a test identification parade
on May 17, 1975. The identification parade was
actually held on May 23, 1975. There is no valid
explanation tendered by the prosecution for the
delay in holding the. identification parades. The
defence has suggested in the cross-examination of
PW 1 and PW 25 that in the meantime the accused
who were in custody were shown to the witnesses
and the police had secured a group photograph in
which accused Nos. 3 and 5 figured to facilitate
their identification. The High Court was, however,
reluctant to place absolute reliance On the evidence
of PW 1 regarding the identity of accused Nos. 3
and 5. In the absence of a valid explanation for the
delay we do not think that this approach of the
High Court can be said to be manifestly wrong to
call for our intervention.
36. In the case of Wakil Singh and Others vs.
the State of Bihar reported in 1981 Supp Supreme
Court Cases 28 the Hon’ble Apex Court has held in
paragraph no. 2, which reads as follows:-
“2. In the instant case we may mention that none
of the witnesses in their earlier statements or in
oral evidence gave any description of the dacoits
whom they have alleged to have identified in the
dacoity, nor did the witnesses give any
identification marks viz., stature of the accused or
whether they were fat or thin or of a fair colour or

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of black colour. In absence of any such description,
it will be impossible for us to convict any accused
on the basis of a single identification, in which case
the reasonable possibility of mistake in
identification cannot be excluded. For these
reasons, therefore, the trial court was right in not
relying on the evidence of witnesses and not
convicting the accused who are identified by only
one witness, apart from the reasons that were
given by the trial court. The High Court, however
has chosen to rely on the evidence of a single
witness, completely over-looking the facts and
circumstances mentioned above. The High Court
also ignored the fact that the identification was
made at the T.I. parade about 3| months after the
dacoity and in view of such a long lapse of time it
is not possible for any human being to remember,
the features of the accused and he is, therefore,
very likely to commit mistakes. In these
circumstances unless the evidence is absolutely
clear, it would be unsafe to convict an accused for
such a serious offence on the testimony of a single
witness”.
37. All the above citations squarely applies to the
facts and circumstances of the present case.
38. The trial court had erred in acquitting Bhola
Sahani contending that the informant and other witnesses
failed to identify the said Bhola Sahani. The record
reveals that P.W.6 had identified Ram Bahadur Sahani,
Bhola Sahani as well as Mahesh Sahani, all the three

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accused. Therefore, if benefit of doubt was extended to
Bhola Sahani, the same benefit ought also to have been
extended to the appellants. Moreover, the other alleged
witnesses have not identified any of the accused. The
fardbeyan is the first piece of evidence, which kept the
Criminal law into motion and it do not disclose the name
of any of the accused.
39. Admittedly, there was animosity between Ram
Bahadur Sahani and the informant, which has come on
record in the cross-examination of P.W.6, If at all these
appellants were well known to the informant, then as to
why, P.W 6 did not name them in his fardbeyan, is also
found to be doubtful. Therefore, the judgment of the trial
court warrants interference by this Court. Furthermore,
the accused/appellants were examined under Section 342
Cr.P.C., which reads as follows:-
342. Power to order costs.
“Any Court dealing with an application made to it
for filing a complaint under Section 340 or an
appeal under Section 341, shall have power to

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make such order as to costs as may be just”.
40. Admittedly, the accused are to be examined
under Section 313 Cr.P.C. for the incriminating evidence
of the prosecution found against them. The trial Court
erred in examining the appellants under Section 342
Cr.P.C.
41. In Prem Chand Vs. State of Maharashtra
reported in (2023) 5 SCC 522 their Lordships also
evolved the guidelines for examination of the accused
under Section 313 of Cr.P.C. which held as follows:-
“15. What follows from these authorities may
briefly be summarized thus:
15.1. Section 313CrPC [clause (b) of sub-
section (1)] is a valuable safeguard in the trial
process for the accused to establish his
innocence.
15.2. Section 313, which is intended to ensure
a direct dialogue between the court and the
accused, casts a mandatory duty on the court
to question the accused generally on the case
for the purpose of enabling him to personally
explain any circumstances appearing in the
evidence against him.

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15.3. When questioned, the accused may not
admit his involvement at all and choose to
flatly deny or outrightly repudiate whatever is
put to him by the court.
15.4. The accused may even admit or own
incriminating circumstances adduced against
him to adopt legally recognized defences.
15.5. An accused can make a statement
without fear of being cross-examined by the
prosecution or the latter having any right to
cross-examine him.
15.6. The explanations that an accused may
furnish cannot be considered in isolation but
have to be considered in conjunction with the
evidence adduced by the prosecution and,
therefore, no conviction can be premised solely
on the basis of the Section 313 statement(s).
15.7. Statements of the accused in course of
examination under Section 313, since not on
oath, do not constitute evidence under Section
3 of the Evidence Act, yet, the answers given
are relevant for finding the truth and
examining the veracity of the prosecution case.
15.8. Statement(s) of the accused cannot be
dissected to rely on the inculpatory part and
ignore the exculpatory part and has/have to be
read in the whole, inter alia, to test the
authenticity of the exculpatory nature of

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admission.
15.9. If the accused takes a defense and
proffers any alternative version of events or
interpretation, the court has to carefully
analyse and consider his statements.
15.10. Any failure takes a defense the
accused’s explanation of incriminating
circumstances, in a case, may vitiate the trial
and/or endanger the conviction.
38. Bearing the well-settled principles in mind,
every criminal court proceedings under Clause
(b) of Sub-section (1) of Section 313 of
Cr.P.C. has to shoulder the onerous
responsibility of scanning the evidence after
the prosecution closes its case, to trace the
incriminating circumstances in the evidence
against the accused and to prepare relevant
questions to extend opportunity to the accused
to explain any such circumstances in the
evidence that could be used against him.
39. The Criminal Justice System ensures a fair
and speedy trial and the facts within the
domain of the court are to be explained to the
accused and opportunity has to be given to
them to explain about the incriminating
evidence
.
42. In view of the above said discussions, this Court

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is of the opinion that the prosecution has miserably failed
to prove the guilt of the appellants beyond reasonable
doubt and the trial Court ought not have convicted the
appellants for the offence punishable under Section 395
of IPC. Further, tendering of witnesses is not at all
permissible in view of the Criminal Procedure
Amendment, and accused are to be examined under
Section 313 Cr.P.C.
43. Accordingly, the judgment of conviction dated
12.01.2025 and order of sentence dated 15.01.2005
passed by the Additional Sessions Judge, Fast Track
Court No. 1, Madhubani in Sessions Trial No. 19/1993 /
224/2003 is hereby set aside.
44. The appellants are acquitted of the charges
levelled against him.
45. Both the appeals stand allowed.
46. Since the appellants were released on bail vide
order dated 17.11.2005, they are discharged from the

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liabilities of their bail bonds.
47. Let the records of this case be returned to the
concerned court below forthwith.

(G. Anupama Chakravarthy, J)
sunilkumar/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 15.05.2026
Transmission Date 15.05.2026