Material witnesses cannot be tendered for cross-examination without examination-in-chief under the Code of Criminal Procedure, 1973.

The prosecution alleged that on the night of 25/26.06.1992, around 10 dacoits entered the house of the informant (P.W.6), assaulted family members, and looted articles worth Rs. 5,625/-

The informant (P.W.6) fled the house during the incident to raise an alarm

The F.I.R. was registered against unknown offenders

During the trial, the prosecution examined eight witnesses, three of whom (P.W.s 2, 4, and 5) were "tendered" for cross-examination without examination-in-chief

The Trial Court (Addl. Sessions Judge, Fast Track Court No. 1, Madhubani) convicted the appellants under Section 395 IPC and sentenced them to 7 years of rigorous imprisonment via judgment dated 12.01.2005

1. Whether the prosecution proved the guilt of the accused under Section 395 IPC beyond reasonable doubt given the material contradictions and delayed Test Identification Parade (TIP)

2. Whether the Court can legally "tender" witnesses for cross-examination (P.W.s 2, 4, and 5) without recording their examination-in-chief under the Cr.P.C. 1973

3. Whether the Trial Court erred in examining the accused under Section 342 of the old Code instead of Section 313 of the Cr.P.C. 1973

The Court applied Section 138 of the Indian Evidence Act, which mandates the order of examination (chief, then cross)

It relied on Sukhwant Singh v. State of Punjab (1995), which held that "tendering" a witness for cross-examination without chief examination is inconsistent with Section 138 and amounts to giving up the witness

Regarding identification, the Court cited Rajesh Govind Jagesha v. State of Maharashtra (1999) and Wakil Singh v. State of Bihar (1981) to establish that inordinate, unexplained delays in conducting a TIP (three years in this case) and identification by a single witness in darkness make the conviction unsafe

The Court further applied Section 313 of the Cr.P.C. 1973, which mandates a dialogue between the court and the accused to explain incriminating circumstances

The High Court found the identification of the appellants highly suspect because the informant (P.W.6) did not name them in the initial fardbeyan despite previous enmity

The Court noted that P.W.6's claim of identifying the dacoits via a torch held by the dacoits was logically unsustainable as the light would have blinded him

Crucially, the TIP was conducted in August 1995, over three years after the 1992 incident, and the Magistrate failed to follow Rule 34 of the Criminal Rules of Practice regarding the similarity of non-suspects

The Court held that the legal procedure was vitiated by the Trial Court "tendering" P.W.s 2, 4, and 5 for cross-examination, which is not permitted under the 1973 Code

Furthermore, the Trial Court incorrectly examined the accused under a defunct section (342 of the old Code) rather than Section 313 Cr.P.C.

The appeals were allowed, the judgment of conviction dated 12.01.2005 and order of sentence dated 15.01.2005 were set aside, and the appellants were acquitted of all charges