Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.112 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 7.3.2000, PASSED IN SESSIONS TRIAL NO. 923 OF 1995 BY THE ADDITIONAL SESSIONS JUDGE (I) BARH. =========================================================== Sultan Mian, son of Md. Sahid Miyan, Resident of Village Bihta, P.S. Bakhtiyarpur, District Patna. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Shailendra Kumar Jha, Amicus Curiae For the State : Ms. Abha Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 27-07-2012 S.A. Khan, J. Nobody appears on behalf of the appellant. Mr. Shailendra Kumar Jha is appointed as Amicus Curiae in this case who is present in Court. 2. This appeal is directed against the judgment of conviction and order of sentence dated 7.3.2000, passed in Sessions Trial No. 923 of 1995 by the Additional Sessions Judge (I) Barh by which the appellant has been convicted under [STATUTE] to undergo R.I. for 5 years. 3. The informant Ajit Kumar Singh, P.W. 3 has given his fardbeyan, alleging therein that at about 7:45 P.M. on 23.4.1995, 20-25 persons entered his house and confined Ajit Kumar Singh after assaulting him in a room. Ram Bilok Singh tried to resist the dacoits Patna High Court CR. APP (SJ) No.112 of 2000 dt.27-07-2012 2 / 4 2 and in the process one of the dacoits fired which hit the Bhabhi of the informant. The informant discloses that his mother claims to have identified Sultan Mian, the appellant. 4. In this case, the Investigating Officer has not been examined to support the case and as such paragraph 2, 7, 8, 9 and 12 of the case diary have been marked as Exts. 5. P.W. 1, Mithila Singh has supported the case of dacoity and he claims to have identified Sultan Mian, the appellant in dock. It would appear that this is the first time that he has claimed to have identified Sultan Mian and as such no importance can be given to the identification of P.W. 1. 6. The next witness in this case is P.W. 2 Chandu Kumar Singh who is cousin brother of the informant. This witness identifies Sultan Mian in the dock and states that he knows Sultan Mian because he used to sell vegetables and fishes, door to door, and as such he had the opportunity to see him earlier. His statement at paragraph 8 in the case diary reveals that Shanti Devi had identified one of the dacoits i.e. Sultan Mian and disclosed this fact to him. It is not the claim of this witness that he had identified Sultan Mian during the commission of the dacoity and, therefore, the identification in the Dock has no meaning and value. P.W. 3 is the informant of this case. He supports the factum of dacoity. However, he does not identify this Patna High Court CR. APP (SJ) No.112 of 2000 dt.27-07-2012 3 / 4 3 appellant as one of the persons who had participated in the occurrence. P.W. 4 is Simrikhi Devi. She supports the factum of occurrence but does not say anything regarding this appellant. P.Ws. 5 and 6 have proved Exts. 2 and 3. 7. On the basis of the aforesaid evidence, this Court, therefore, now has to decide as to whether the identification of the appellant can be relied upon. P.W. 1 who claims to have identified the appellant has not identified him in his evidence under Section 161 of the Code of Criminal Procedure which is at paragraph 9 of the case diary (Ext. 3). Similarly P.W. 2 speaks of identification of Sultan Mian based on the disclosure of Shanti Devi. Anita Devi has been examined at paragraph 11 of the case diary. However, paragraph 11 has not been included as an exhibit, and therefore, her evidence cannot be taken into consideration. Even if it would be presumed that paragraph 11 of the case diary ought to be considered by this Court, then it would not have been sufficient to rely only on the statement of the case diary as the statement under Section 161 of the Code of Criminal Procedure cannot replace the statement made during the trial before the Court. 8. This Court, therefore, finds that infact the manner of identification by Mithila Singh and Chandu Kumar Singh cannot form the basis of conviction. I accordingly, set aside the judgment of Patna High Court CR. APP (SJ) No.112 of 2000 dt.27-07-2012 4 / 4 4 conviction and order of sentence dated 7.3.2000, passed in Sessions Trial No. 923 of 1995 by the Additional Sessions Judge (I) Barh. The appellant is acquitted of all the charges levelled against him. He is also discharged from the liability of bail bonds furnished earlier in this case. 9. In the result, this appeal is allowed. Sanjay/- (Sheema Ali Khan, J.)

Applicable IPC Section: 395

Statute Text:
Section 395 of the Indian Penal Code. Dacoity. Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.