Criminal Appeal (SJ) No. 258 OF 1997 Against the judgment and order dated 03.09.1997 passed by Sri Shyam Kishore Prasad, 1st Additional Sessions Judge, Banka in Sessions Case No. 625 of 1991. ************ 1. Nemani Singh, S/o Late Bandhu Singh. 2. Suresh Singh, S/o Nemani Singh. Both resident of Village-Simariya, P.S.-Barahat, District-Banka. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 152 of 1998 1. Ravan Yadav. 2. Haggan Yadav. Both Sons of Sattan Yadav. Resident of Village-Gurudwar, P.S.-Barahat, District-Banka. ……….(Appellants) Versus The State of Bihar……..(Respondent) ************* For the Appellants : Mr. Krishna Mohan, Adv. : Mr. Praveen Kumar, Adv. For the State : Mr. J.N. Thakur, APP. : Mr. Manoj Kumr-I, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant No. 1 of Cr. Appeal (SJ) No. 258 of 1997 has been convicted under Section 395 IPC and sentenced to RI for seven years whereas appellant No. 2 has been convicted under Section 395 and sentenced to RI for eight years and appellant of Cr. Appeal (SJ) No. 152 of 1998 has been convicted under Section 395 IPC and sentenced to RI for seven years by the 1st Additional Sessions Judge, Banka in Sessions Case No. 625 of 1991 by a judgment dated 03.09.1997. 2 2. The case of the prosecution according to the informant, Hari Baidya (not examined) has stated that on the night of 18/19.01.1991 a dacoity was committed in his house by unknown miscreants who variously assaulted them and took away their households articles and ornaments. 3. During trial the prosecution in all examined eleven witnesses out of whom P.W. 1, Permanand Baidya supported the factum of dacoity but stated that he failed to identify any of the accused persons. P.W. 2, Surendra Baidya also confirmed the factum of occurrence that he had witnessed the dacoity in course of which he had sustained injury but he also did identify any of the dacoits. P.W. 3, Laxman Baidya an inmate of the house stated that a dacoity was committed in his house but failed to identify any of the accused persons. P.W. 4, Sikandar Baidya also stated likewise. P.W. 5, Niranjan Baidya the son of the informant stated that on the date and time of the occurrence while he was sleeping inside house a dacoity was committed in his house. He identified the appellants Haggan Yadav and Ravan Yadav when they were put on test identification parade identified. 4. P.W. 6, Anirudh Baidya stated that in the night of 18.01.1991 a dacoity was committed in his house by dacoits in course of which he had identified 3 appellant, Suresh Singh at the spot. He further stated that he had identified two accused in the test identification parade i.e Ravan Yadav and Haggan Yadav. He conceded that there was a case pending between Adhik Lal Baidya, P.W. 8 and the father of Appellant Suresh Singh appellant No. 1 Nemani Singh. This witness happens to be the grand son of Hari Baidya, the informant but it is surprising that he did not disclose the name of Suresh Singh at the earliest instance to his grandfather. His evidence therefore in this regard is not trustworthy. He also stated that Appellants Haggan and Ravan recorded 2½ Kms. from his village. 5. P.W. 7, Upendra Baidya also the grandson of the informant stated that on the night of occurrence during the course of dacoity he had identified appellant, Nemani Singh and Suresh Singh. His evidence is also fit to be rejected for the same reasons as that of P.W. 6 since neither he had disclosed the names of these two appellants before his grandfather as also there is admitted enmity between the parties. 6. P.W. 8, Adhik Lal Baidya who happened to be the son of the informant stated that on the night of occurrence he had identified appellant, Suresh Singh and Nemani Singh as miscreants. He, however, admitted that there was a suit for partition between him and Nemani Singh regarding the land of Manorma Devi, the 4 vendor for which Bhanjan Singh had filed a Title Suit in which one Upendra, P.W. 7 is also a party. Evidently his evidence is not fit to be relied upon since he did not disclose the name to P.W. 6. 7. P.W. 9, Ajit Kumar Sinha, Judicial Magistrate who proved the TI Chart Exhibit-1 has stated that witnesses Niranjan Baidya P.W. 5, Anirudh Baidya and P.W. 6 had identified the appellants, Ravan Yadav and Haggan Yadav. P.W. 1 is a formal witness who has proved the First Information Report in the case diary. 8. Looking into the implication of appellants, Nemani Singh and Suresh Singh, I find the same untrustworthy for the reason that they were not named in the First Information Report even though they were well known to the identifying witnesses and also it was an admitted fact that there was land litigation between them. 9. As for the complicity of the appellants Ravan Yadav and Haggan Yadav, I find from the evidence of P.W. 6 who is one of the identifying witness that the appellant lived about 2 and 2½ Kms. from the place of occurrence which shows that they were well known to P.W. 6 despite which he did not name them in the First Information Report. 10. Having rejected the evidence of P.W. 6 on the point of identification of appellants, Ravan Yadav 5 and Haggan Yadav the Court is left with the sole evidence of P.W. 5, Nirnajan Baidya. In view of the long line of decision that in case of a single identification the Court should be wary in upholding the conviction, I am inclined to give benefit of doubt to them. 11. In the result, the appeals are allowed and the judgment and order dated 03.09.1997 passed by the 1st Additional Sessions Judge, Banka in Sessions Case No. 625 of 1991 is hereby set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 21st July, 2011. NAFR/Vikash/-