CRIMINAL APPEAL No.296 OF 2009 (S.J.) **** Against the judgment, dated 25.09.2006, and order, dated 26.09.2009, passed by the Additional District and Sessions Judge, Fast Track Court, V, Aurangabad, in Session’s Trial No. 289 of 2003/144 of 2003 **** YOGENDRA MUSAHAR @ DEVAN, son of Surudayal Musahar, resident of village Sakaldeep, Barbadih, Police Station Harihar Ganj, district Palamau (Jharkhand) .. Appellant Versus THE STATE OF BIHAR .. Opposite Party **** For the appellant .. M/S Amarnath Jha, Kedar Yadav, Mithilesh Kr. Jha & Pawan Kumar, Advs. For the Opposite Party .. Mr. S.N. Prasad, A.P.P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Heard the counsel for the parties. 2. The sole appellant has been convicted for the offence under Section 395 of the Indian Penal Code and sentenced to eight years rigorous imprisonment and additional rupees five thousand fine, in default of which two years’ simple imprisonment by the Additional Sessions 2 Judge, Fast Track Court, V, Aurangabad, in Session’s Trial No. 289 of 2003/144 of 2003. 3. The prosecution case, according to the informant, Ajeet Kumar Singh, is that on the night of 28th December, 2002, some unknown dacoits committed dacoity in his house after having beaten him and tied him with his muffler. After investigation, the police submitted charge sheet against the appellant on the basis of Test Identification Parade (exhibit 1). 4. During trial the prosecution in all examined six witnesses out of whom P.W. 1, Ravi Pandey, P.W. 2, Akhileshwar Pandey, P.W. 3, Ram Briksh Prajapati, P.W. 4, Maheshwar Paswan, and P.W. 6, Lakshman Paswan, have been declared hostile since they did not support the case of prosecution. In this case neither the investigating officer nor the Magistrate, who held Test Identification Parade of the appellant, was examined by the prosecution. Thus, in effect, apart from P.W. 5, the informant, Ajeet Kumar Singh, there is no evidence with regard to the appellant. From the evidence of P.W. 5 it appears that there is no infirmity in his evidence and he has duly supported the prosecution case which in any case has not been denied by the defence. The learned lawyer for the appellant does not dispute the factum of dacoity, but, refutes the allegation that the appellant had participated in the occurrence of dacoity and the Test Identification Parade after three months had absolutely no value in the facts of 3 the case. He also submits that in absence of the Magistrate, who conducted the Test Identification Parade did not depose in the case and the entire story of identification of the present appellant comes to a naught. However, I am not inclined to accept the submissions of the learned lawyer for the appellant since conviction can be based even on the solitary evidence if he is found to be truthful. There is no material to suggest that the appellant wrongly identified the present appellant and his evidence even though solitary is fit to be accepted in the facts of the case. 5. Under the circumstances, I find no merit in the appeal and the same is dismissed. However, it has been submitted that the appellant has remained in custody for about six years so the sentence is modified to that which has already been undergone. 6. In the result, the appeal is dismissed with modification in the sentence, as stated above. (Anjana Prakash, J.) The Patna High Court, The 27th October, 2009, N.A.F.R./S.A.