Criminal Appeal (SJ) No.429 of 1998 **** Against the judgment, dated 02.12.1998, passed by Sri Rameshwar Tiwary, Additional Sessions Judge, III, Madhubani, in S. Tr. No. 41 of 1996 **** 1. Raj Kishore Sahni, son of Devi Sahni 2. Bipti Paswan, son of Baldeo Paswan 3. Hakru Paswan, son of Nanai Paswan, all residents of village Bundelkhand, P.s. Basopatti, district Madhupani .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. M/S Ajay Kr. Thakur, Anjani Kumar and Ravi Ranjan, Advs. For the Respondent ..Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellants have been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged in the fardbeyan by the informant that on 27.07.1995 at about 01.15 a.m. he heard a sound and went out and saw 7-8 persons are assaulting his mother, thereafter, they entered into the house and committed dacoity. He claimed to have identified three appellants. He identified one Ram Kishore Sahni who was 2 looting articles in his house. He also identified Bepti Paswan and Hakru Paswan in the light of torch lit by the appellants in the house of his brother. He has, further, stated that other persons, whose houses were looted, also disclosed that they have identified three appellants. 4. On the fardbeyan the first information report lodged and after investigation the charge sheet submitted. 5. During the trial some articles were recovered and even Test Identification Parade of the article recovered was conducted. Nine witnesses were examined. During trial only P.W. 4 identified the three appellants and no other witness identified though supported the prosecution case about the dacoity. 6. The trial Court, taking into consideration the evidence of P.W. 4, the informant, convicted the appellants, as mentioned above. 7. The learned counsel for the appellants, however, contended that this is a case of single identification and the evidence of P.W. 4 does not inspire confidence and the trial Court do not consider the evidence in proper perspective and, hence, the conviction and sentence is not sustainable. 8. On perusal of the evidence of P.W. 4, the informant, though he has identified three appellants in Court, but, not stated what role or act was committed by them during the dacoity. However, in paragraph 7 of his evidence has stated that he do not know any person of village Bundelkhand and he has, further, stated that at the time of occurrence the night was dark and there was no light in his courtyard, however, subsequently, stated that a diya was lightening and the person in whose houses the dacoity was being committed had identified the appellants and they disclosed the name of 3 three dacoits when daroga came there. 9. However, having regard to the fact, it is apparent that the identification by the informant suffers from the defects that there is no proper means of identification and he has stated that no light was there at the time when dacoity was committed in the dark night though subsequently stated that there was a diya and, further, stated that other persons in whose houses dacoity committed identified three persons and disclosed their names and then he stated the fact to daroga, but, none come forward to identify the appellants except P.W. 4, hence, under the facts and circumstance the identification by the appellants suffers from the infirmities that means of identification is diya and it does not inspire confidence and more over it is a case of single identification and, hence, to rely on the case of single identification of the appellants does not inspire confidence. 10. Hence, the order of conviction and sentence, recorded under Section 395 of the Penal Code, is not sustainable and, hence, I find and held that the prosecution has not proved the charge beyond reasonable doubt and, hence, the order of conviction and sentenced, recorded by the lower Court is hereby set aside. 11. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 27th day of September, 2011, N.A.F.R., S.A.