Criminal Appeal (SJ) No.153 of 1998 ****** Against the judgment of conviction and order of sentence dated 16.04.1998 and 17.04.1998 passed by Sri Manohar Prasad, learned 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 286 of 1993. ****** Madan Ahir, Son of Bishuni Ahir, resident of village – Khem Matihania, Police Station – Bishambharpur, District – Gopalganj. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Raghav Prasad, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case is that appellant along with 24-25 persons came, assaulted the family members and looted away the articles. 4. On the fardbeyan, First Information Report was lodged and after investigation charge-sheet was submitted under Sections 397 and 395 of the Indian Penal Code. 2 5. During trial four witnesses were examined and after recording of statement under Section 313 Cr. P. C four charge-sheeted witnesses were examined as court witness and then statement under Section 313 Cr. P. C. again recorded. 6. The trial court in view of the evidence of witnesses C.W. 1 to 4 who supported the factum of dacoity and have identified the appellant, convicted the appellant under Section 395 of the Indian Penal Code but since the doctor has not been examined to prove the injury acquitted the appellant under Section 397 of the Indian Penal Code. 7. The learned counsel for the appellant contended that the occurrence took place in adjoining house and are Pattidar and the persons must have met and discussed the name of accused but name of the appellant does not find place in fardbeyan. The witness named the appellant at later part of investigation. I.O. not examined has caused prejudice. 8. There are eight witnesses examined P.W. 1 to 4 and C.W. 1 to 4. P.W. 1 though supported the prosecution case has not named the appellant. P.W. 2 has been declared hostile as not supported the prosecution case and P. Ws. 3 and 4 are tendered. C. Ws. 1, 2, 3 and 4 though have identified the appellant but have not stated in their evidence that at the time of dacoity what act of commission or omission was 3 performed by the appellant. P.W. 4 not examined before police hence his evidence is doubtful. 9. The attention of C. Ws. 2 and 3 has been drawn with regard to their statement before police earlier stated before police but I.O. has not been examined caused prejudice to the accused person and C.W. 4 has accepted that his statement was not recorded by police during investigation and his evidence is not acceptable for the first time on identification of the appellant. 10. Hence, taking into consideration that though C.W. 1 to 4 have identified the appellant but since the name of appellant does not find place in the fardbeyan and the witnesses while identifying the appellant have not stated that when they identified the appellant what act of commission or omission was performed during dacoity, hence, the appellant is entitled for benefit of doubt as the prosecution has not proved the case beyond reasonable doubt. Hence the order of conviction and sentence is set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 10th August, 2011. N.A.F.R./Kundan.