Criminal Appeal (SJ) No.229 of 1996 **** Against the judgment and order, dated 21.08.1996, passed by Sri Jai Kishore Narayan, Additional Sessions Judge, I, Saran at Chapra, instn 231 of 1989 **** Gautam Nut .. Appellant Versus State Of Bihar .. Respondent **** For the Appellant .. M/S P.K. Mishra & S.S. Jha, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 395 of the Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged by the informant, Deo Sharan Sah, that while he was sleeping along with his children, about 25-30 persons collected and committed dacoity. However, on the fardbeyan of the informant, first information report was lodged and after investigation the charge sheet was submitted, cognizance taken and trial proceeded under Sections 395 and 412 of the Penal Code. During the trial nine witnesses were examined by the prosecution. The 2 documentary evidence also adduced and after considering the oral and documentary evidence, the appellant have been convicted, as mentioned above, hence, the appellant preferred the appeal. 4. The learned counsel for the appellant contended that out of nine witnesses examined by the prosecution, P.W. 1 is the only witness who has identified the appellant and, hence, this is a case of single identification. It has, further, been contended that the investigating officer has not been examined and while identifying the appellant, P.W. 1 has not stated what act was being committed by the appellant during dacoity and has contended that P.W.1 is a Dafadar of a different area and he has identified the appellant at the instance of the prosecution, hence, the identification is not reliable and the conviction and sentence on the basis of the sole identification is not in the interest of justice. 5. From perusal of the record it is apparent that P.Ws. 1 to 5 though have supported the factum of dacoity, but, have stated that they have not identified any of the dacoits. P.W. 6 is the Judicial Magistrate, who had conducted the Test Identification Parade and has stated that he conducted the Test Identification Parade of accused, Gautam Nut, and the witness, Lal Mohan Prasad (P.W. 1), identified him. P.W. 7 though has stated that he had identified Bharat Nut and Langara Nut. P.W. 8 is tender and P.W. 9 is a formal witness, who has proved Exhibit 3. 6. The only witness remained P.W. 1, however, stated that about 6-7 years earlier there was dacoity in his house while he was 3 sleeping and he got up and lighted torch and saw 5-6 dacoits at the door of Deo Sharan Sah. He has, further, stated that on the same night there was also dacoity in the house of Guru Sharan Sah and the dacoits have exploded bomb. It has, further, been stated that he went to Chapra Jail to identify the docoit and in Test Identification Parade he identified the accused, Gautam Nut. He has also identified the appellant in dock during his evidence. However, in his entire evidence he does not say that he identified the appellant, Gautam Nut, while he was committing dacoit. He has not stated that what act was being performed by Gautam Nut during dacoity when this witness identified him rather in cross examination he stated that he did not know Gautam Nut since before and he also states that he did not state the physical feature of the accused to the daroga. Hence, having regard to the fact that since this witness claims to identified Gautam Nut in Test Identification Parade and even identified Gautam in Court, but, in his entire evidence has not stated what act has been committed by this appellant during dacoity when the appellant was identified by this witness nor he disclosed about the physical feature of the appellant before daroga. Hence, under the facts and circumstances the conviction of the appellant on the single identification when the appellant himself has not stated what act was performed by the appellant during the dacoity and, hence, the appellant enjoins the benefit of doubt and, hence, I give the appellant the benefit of doubt. The learned lower Court misdirected itself in conviction and sentencing the appellant on single identification in the fact and circumstances of the case. Hence, order of conviction and sentence is 4 hereby set aside and the appeal is allowed. Since, the appellant is on bail, he is discharged from the liability of bail bond. ( Gopal Prasad, J. ) The Patna High Court, The 28th day of June, 2011, N.A.F.R., S.A.