Patna High Court
Rabindra Thakur vs State Of Bihar on 18 March, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.665 of 2004
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RABINDRA THAKUR, son of Ram Vilas Thakur, Resident of Village -
Kurmawan, Police Station - Konch, District - Gaya.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr Baxi S.R.P. Sinha, Sr. Adv .
Mr. Vinod Kumar, Adv.
For the Respondent/s : Mrs. Anita Kumari Singh, APP
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 18-03-2026
1. This appeal is arising out of the
judgment of conviction dated 31.08.2004 and
order of sentence dated 01.09.2004 on the file of
the Learned Additional Sessions Jude -5 th Gaya in
Sessions Trial No. 98/03/378/2003, whereby the
appellant has been convicted for the offence under
Section 395 of the Indian Penal Code and was
sentenced to undergo rigorous imprisonment of
seven years.
2. The case of the prosecution as per
fardbeyan of informant/P.W.1/Md. Ilyas is that on
16.10.2001at about 11.00 P.M. while the informant Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 2/21 was reading Vazifa and other family members were sleeping on their respective cots, all of a sudden, 8-10 robbers jumped into the veranda from clay tiled roof of his house and pointed guns on them, threatened them to remain silent and gathered women inmates of the house at veranda. Thereafter, they looted utensils, jewelleries, T.V., Radio, watch and cash from the informant and their family members and escaped with the booty.
3. On the basis of the said fardbeyan of the informant, an F.I.R. vide Tekari P.S. Case No. 156/2001 was registered on 17.10.2001 for the offence punishable under Section 395 of the Indian Penal Code against unknown persons.
4. During the course of the investigation, along with the name of the appellants, three more persons were arrayed as accused i.e. Umesh Paswan, Faresh Paswan and Badri Das. On conclusion of investigation and finding the case true, I.O. submitted chargesheet No. 180/2002 dated 31.08.2002 under Section 395 I.P.C. only against the accused Rabindra Thakur and not sent Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 3/21 up accused Umesh Paswan, Faresh Paswan and Badri Das for trial.
5. The chargesheet further disclosed that appellant has been identified as one of the dacoits in the Test Identification Parade (hereinafter referred to as "TIP") and, chargesheet was filed only against the appellant.
6. During the course of trial charge was framed against the appellant for the offence under Section 395 IPC, read over and explained to him, for which, the appellant pleaded not guilty and claimed to be tried.
7. During the course of Trial, the prosecution has examined seven witnesses and marked three exhibits which are as follows:-
Sl. No. Name of prosecution Prosecution witness Details
1. Md. Iliyas Informant
2. Md. Moin Son of Informant
3. Shahjadi Khatun
4. Shahida Khatun Wife of informant
5. Sahbuddin
6. Khurshid Alam
7. Md. Habib Advocate Clerk Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 4/21 Sl.No. List of Exhibits Exhibits Details
1. Exhibit-1 Signature of Md. Ilyas on fardbeyan
2. Exhibit -2 Formal F.I.R.
3. Exhibit-3 T.I.P. Chart.
8. Considering the evidence on record, the trial Court has convicted the appellant under Section 395 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years.
9. The point for determination in this appeal is:-
(I) Whether the Trial Court is right in convicting and sentencing the appellant for the offence punishable under Section 395 IPC?
(II) Whether the prosecution has been able to bring home the guilt of the appellant for the offence under Section 395 IPC beyond reasonable doubt?
10. In order to decide the aforesaid points for determination, it is just necessary to re- appreciate the evidence on record.
11. The evidence of P.W.1/informant clearly disclose that a dacoity was committed at his house Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 5/21 at around 11.00 P.M. while he was awake but other family members were sleeping. About 18 to 20 dacoits entered into his house, who were carrying guns and bullets, looted his utensils, clothes, jewellery, T.V., Radio etc., and a sum of Rs. Forty Thousand. He saw the faces of the dacoits, but do not know them. He testified that he appeared in the TIP and identified appellant/Rabindra Thakur. The signature of P.W.1 on fardbeyan was got marked as Ext-1. P.W.1 further testified that village of the appellant and informant/P.W.1 were adjacent to each other and the appellant's field is adjacent to his field and they regularly used to meet during the farming season. He specifically stated that he identified the appellant in the TIP, as he was known to him.
12. It is relevant to mention that the evidence of P.W.1 disclose that he did not see the appellant at the place of incident along with the dacoits and that the appellant was not present at the place of occurrence.
13. The evidence of P.W.2/Md. Moin, who is Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 6/21 the son of P.W.1 disclose that 10 to 12 persons entered into their house and looted booty. P.W.2 specifically testified that he could not recognize anyone amongst the dacoits. In the cross- examination, it is testified that the appellant was not involved in dacoity and further the appellant and his family members used to serve as barber at their place.
14. The evidence of P.W.3/Shahjadi Khatun disclose that dacoity took place in their house about 9.00 P.M. in the night and 10 to 15 dacoits entered into their house and she could not recognize anyone of the dacoits including the appellant in the open court.
15. The evidence of P.W.4/Shahida Khatun, wife of the informant/P.W.1 also disclose that a dacoity was committed in their house and 14 to 15 dacoits entered into their house, who looted the booty. Though this witness saw the appellant in open Court, she did not identify him as one of the persons, who participated in dacoity.
16. The evidence of P.W.5/Sahbuddin also Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 7/21 disclose that 5 to 6 persons have looted the house, but he too did not identify the appellant as one of the persons involved in dacoity.
17. P.W.6/Khurshid Alam is son-in-law of the informant. His evidence also disclose that 10 to 12 persons have committed dacoity and he could not identify anyone of the accused including the appellant. It is categorically stated by P.W.6 that the appellant was not involved in dacoity.
18. P.W.7/Md. Habib is a formal witness and an Advocate Clerk through whom, formal F.I.R. was marked as Ext. 2.
19. P.W.1 to P.W.6 are eye-witnesses to the occurrence but there are major discrepancies in their evidence with respect to the number of dacoits who entered the house on the date of occurrence and also about the time of the occurrence.
20. The evidence of P.W.1 disclose that dacoity took place at 11.00 P.M. and there were 18 to 20 dacoits. However, fardbeyan of P.W.1 disclose that 8 to 10 persons, committed dacoity. The Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 8/21 evidence of P.W.2 disclose that occurrence took place between 10.30 P.M. to 11.00 P.M. and the number of dacoits, who entered their house as 10 to 12 persons. The evidence of P.W.3 disclose that dacoity took place at 9.00 P.M. in the night and there 10 to 15 dacoits. The evidence of P.W.4 disclose that the incident occurred between 9.00 to 10.00 P.M. and there were 14 to 15 persons, who entered into their house. The evidence of P.W.5 do not specify about the timing of the dacoity but the number as to the dacoits, it is stated as "5 to 6". The evidence of P.W.6 also do not disclose about the timing of dacoity, but as to the number of dacoits is concerned, he testifies it as 10 to 12.
21. These discrepancies cannot be termed as minor discrepancies.
22. On perusal of entire record, it is evident that fardbeyan is not marked except the signature of P.W.1 on the fardbeyan. Further, the F.I.R. is marked through an Advocate Clerk. The Investigating Officer was not examined before the Trial Court for the reasons best known to the Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 9/21 prosecution. In the case of Noor Hasan Ansari Vs. State of Bihar (Criminal Appeal SJ) No. 68 of 2004 this Court dealt with that the following criteria for marking of documents:-
"It is evident that in order to have the documents marked by the Court as Exhibits, a party must satisfy the Court that there is sufficient material in order for the Court to arrive at a prima facie view that :
(a) The "contents" of the document are proved (i.e. the document exists).
(b) The signature or handwriting on the document, if any, are proved (i.e. the document is genuine).
(c) In some cases, the witness who seeks to tender the document in evidence has personal knowledge of the document (i.e. that the witness is in a position to prove the accuracy or truth of the contents of the document);
(d) The document is not inherently or ab initio inadmissible on some other legal ground (e.g. irrelevance, privilege, non-
registration) and
(e) The document has been
appropriately stamped, if so
required by law.
16. (i). In order to prove contents of a document, the witness through whom the document is sought to be tendered must produce the document in court.
Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 10/21 The Evidence Act provides, in essence, that the "contents" of documents must ordinarily be proved by "primary" evidence.
(ii). As the second step in getting a document marked, the witness who introduces the document must identify the signature or handwriting on the document, if there is any. The mere production of a document is not sufficient for the document to be marked as an exhibit.
(iii). Thirdly, in order to lay a foundation for marking a document, if the document contains any statement(s) of fact, and the party propounding the document relies on the truth or accuracy of those statements, then the witness, who tenders the document must demonstrate personal knowledge and the familiarity of the document.
(iv). Fourthly, in some cases, irrespective of a party's ability to satisfy the criteria set out above, a law might prohibit some documents from being considered admissible in evidence. Such documents cannot be marked in evidence. Once a document is marked, it becomes the part of the record but has to be considered by the Court about its admissibility and relevancy of the such document. Marking of document alone will not give any right to read the contents of the documents or about the admissibility of the documents."
17. Furthermore, Rule 58 of the Criminal Rules Of Practice and Circular Orders, 1990 envisages about marking of Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 11/21 exhibits which reads as follows:-
"58 Marking of exhibits:- (1) Exhibits admitted in evidence shall be marked as follows:-
(i) if filed by the prosecution with the capital letter 'P' followed by a numeral, P1, P2,P3 and the like;
(ii) if filed by defence with the capital letter 'D' followed by a numeral, D1, D2, D3 and the like;
(iii) in case of Court exhibits with the capital letter 'C' followed by a numeral C1, C2, C3 and the like; (2) All the exhibits filed by the several accused shall be marked consecutively.
All material objects shall be marked in Arabic numbers in continuous series as M.O. 1, M.O.2 and M.O.3 and the like, whether exhibited by the prosecution or the defence or the Court."
23. This Court is unable to understand as to why the trial Court has not followed the procedure, while marking the Exhibits as per Rule 58 of Criminal Rules of Practice. Admittedly, the documents was said to be marked in 'Ext 3' through P.W.-7.
24. At this juncture, it is relevant to rely on the judgments of Hon'ble Division Bench of this Court in the case of Sukhi Yadav v. The State of Bihar reported in 2014 SCC OnLine Pat 5721 wherein their Lordships have held as follows:-
Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 12/21 "9. We fail to appreciate as to which law permits such a thing and how a Judge of standing of Additional Sessions Judge could do such a thing. First thing we must notice that P.W.9 is an Assistant to an Advocate Clerk, who has nothing to do with the case, yet the Court permits him to step in as a prosecution witness.
Moreover we have coined such witness as "Sankat Mochan witness". What more scandalized us is the trial court, which permits a person, who was nobody, to pick up the entire case diary from paragraphs 1 to 121 and prove it and make it a part of evidence. The court then proceeds further to mark it as Ext. 3 and then the court sits down to read entire case-diary in order to appreciate evidence. Nothing can be more scandalous. No such step is permissible in law. The trial court forgot the true import of section 172(2) of the Code of Criminal Procedure (for short 'Cr.P.C.'), which clearly states that any criminal Court may use such diaries, not as evidence in the case, but to aid it in such enquiry or trial. What the trial court has done is using it as evidence, making it as evidence and appreciating it as evidence, which is wholly impermissible in law. The diary can never be proved in a Court, for it cannot be used as evidence. No part of diary can be proved because if any one is proving it for the purposes of making it an evidence, such act is prohibited by law. The law contemplates a reference to the diary only for the purposes of refreshing Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 13/21 memory or contradicting the statements of witnesses in the Court with the statements made during the course of investigation. Only when it is used for refreshing memory, the procedure as envisaged under section 145 of the Evidence Act is to apply but that does not mean that diary can become evidence. Law prohibits such thing. We have found in cases after cases that in the State of Bihar, the Sessions Courts do not know or understand this distinction in law and in cases after cases the statements of witnesses recorded under section 161 of the Cr.P.C. are proved as evidences or other materials in the casediary are proved as evidence and marked as exhibits. This is a practice that should end, the sooner the better. The other thing is that as to who is permitted to prove a document. It appears that in this State every Tom, Dick and Harry, the expression we have formed now "Sankat Mochan Witness", could come and prove any official document. In this case, an Assistant to Clerk of an Advocate, who has nothing to do in the case, has been permitted by the trial court to prove the entire case- diary and mark it as exhibit. This practice is deprecated and it must come to an end. A person, who is author of a document or in absence of author, which absence has to be explained, a person familiar with the handwriting of the author can only prove the document. The procedure adopted by the trial court is unknown to law. No sooner this Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 14/21 practice ends than better it would be."
25. The above citation squarely applies to the facts of the present case. Their Lordships have held that a person who is author of the document, or in absence of the author, (whose absence has to be explained), a person familiar with the hand- writing of author can prove the documents. Their Lordships have further held that the procedures adopted by the trial Court are unknown to law, and such practices have to be ended.
26. On perusal of evidence available on record, it is evident that the TIP was not marked through anyone of the witnesses. The prosecution has not even filed a petition under Section 294 Cr.P.C. However, the docket order of the trial Court, is incorporated herein below as per verbatim:
"23.08.2004, the accused Rabindra Thakur has been produced from jail custody. Learned APP filed a petition to exhibit TIP Chart with the case that informant has identified the accused Rabindra Thakur in TIP. The aforesaid TIP Chart is on record. The defence does not Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 15/21 make any objection on the fact mentioned in the TIP Chart rather admit the identification of the accused by the informant as per the TIP Chart. The learned defence counsel endorsing no objection on the aforesaid petition has frankly submitted before the Court that the defence has no objection against exhibiting the TIP Chart as it does not assail the factum of identification of accused Rabindra Thakur in TIP by the informant. Considering the aforesaid facts and circumstances of the case and submissions of the parties, consensus of the parties, the TIP Chart is marked as Ext. 3. Put up on 24.08.2004 for argument".
27. The aforesaid docket order clearly disclose that the petition under Section 294 Cr.P.C. was not filed by the prosecution.
28. Section 294 Cr.P.C reads as follows:-
"294. No formal proof of certain documents.--(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 16/21 the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved".
29. This Court is of the considered view that the trial Court without following the due process of law as stipulated under Section 294 Cr.P.C. has marked TIP as Exhibit -3 and the accused has missed the opportunity to cross- examine the proper witness i.e. the Learned Magistrate or the Investigating Officer to prove his innocence. Except the TIP, there is no other Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 17/21 evidence before the trial Court to prove the guilt of the appellant for the offence punishable under Section 395 IPC. P.W.s 1 to 6, on one tone, testified that the appellant did not participate in the dacoity. Admittedly, it was a dark night and source of light was not stated by any of witnesses. Admittedly, the dacoits have used their torch, in order to loot the booty. The features of the dacoits were also not disclosed in fardbeyan. If at all, P.W.1 was aware about the appellant, being one amongst other dacoits, he would have taken his name in fardbeyan on 17.01.2001 itself. The TIP was conducted on 31.08.2002 i.e. after a long time. During the course of investigation, if the informant and his family members have had suspicion on the appellant, they would have stated the same to the Investigating Officer that too prior to TIP.
30. At this juncture, it is relevant to go through the citations of the Apex Court in Umesh Chandra and Others vs. State of Uttarakhand with Babbi Sharma @ L.N. Sharma vs. State of Uttarakhand reported in (2021) 17 SCC 616. Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 18/21 Their lordships have held at para -9 and 10, which reads as under:-
"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 Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 19/21 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.
31. In the present case, the appellant has missed an opportunity to disapprove the TIP. Furthermore, there is no corroboration to the TIP. The TIP cannot be the sole basis for convicting the appellant. The Trial Court erroneously convicted the appellant solely basing on the TIP.
32. The judgment of trial Court disclose that it is for the appellant to prove that he did not commit dacoity. The finding of trial court "the appellant failed to explain either by suggesting the Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 20/21 witness or by giving a statement under Section 313 Cr.P.C. as to why the informant has named the appellant as an accused in the occurrence of dacoity in the house during the course of TIP'.
33. The cardinal principles of the criminal jurisprudence is that the prosecution has to prove the guilt of the accused beyond all reasonable doubt and the accused shall be presumed to be innocent until proven guilty and it is the for the prosecution to connect the appellant with the crime. Onus cannot be shifted on the appellant to disprove the guilt.
34. It can be safely be held that the prosecution has miserably failed to prove its case beyond reasonable doubt and the trial Court has committed an error in convicting the appellant in absence of proper evidence solely on the basis of TIP.
35. Accordingly, the appeal is allowed. The order judgment of conviction dated 31.08.2004 and order of sentence dated 01.09.2004 passed by the Learned Additional Sessions Judge -5 th Gaya in Patna High Court CR. APP (SJ) No.665 of 2004 dt.18-03-2026 21/21 Sessions Trial No. 98/03/378/2003, so far as it relates to the appellant, is hereby set aside.
36. Since the appellant has been released on bail vide order dated 13.12.2004, he is discharged from the liabilities of the bail bonds.
37. Let the records of this appeal be returned to the concerned Trial Court forthwith.
(G. Anupama Chakravarthy, J) sunilkumar/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 31.03.2026 Transmission Date 31.03.2026