Criminal Appeal (SJ) No.154 of 2007 Against the judgment of conviction dated 26.12.2006 and order of sentence dated 28.12.2006 passed by Additional District & Sessions Judge, Fast Track Court No.V, Banka in Sessions Trial No.1158 of 2004, Trial No.23 of 2006. MD.ALAM @ KALKATIA.... .. APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant : S/Sri Ranjan Kumar Jha, Rana Praap Singh, Kumar Kamal Nayan, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J Heard. 2. This appeal has to succeed on a very limited point. 3. The appellant has been convicted under Section 396 IPC by Fast Track Court No.V, Banka by judgment dated 26.12.2006 passed in Sessions Trial No.1158 of 2004, Trial No.23 of 2006 and has been directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.2,000/-, else to 2 suffer simple imprisonment for two months. 4. It is unnecessary to go into the factual details of the case. I start from the assumption that a dacoity had indeed been committed and there could not be any doubt about it that some had been killed by the dacoits in that course. Simply stating the above facts could not justify the conviction of the appellant, one has to consider the evidence. It is admitted by P.W.3 in his evidence that the wife of the present appellant had filed a Criminal Case much before the present incident and that case was pending in the court of Sri A.P.Gupta, Judicial Magistrate, Ist Class, Banka vide Complaint Case No.C-447 of 2004. It has further been admitted by P.W.5, the wife of the informant, that the night was pitch dark but still the court can assume that some source of light must have been carried by dacoits themselves. But again this assumption 3 is not going to have any bearing on the merit of the case. What bears upon the merit of the conviction is that in the background of enmity and admitted fact as per the evidence of P.W.1, the informant himself in paragraph-20 that the present appellant had put on a Galmochha to conceal his identity, which conduct of the appellant appears quite natural in the background of admitted enmity, he was still picking up the identification of the appellant correctly. In the opinion of this Court, the informant P.W.1 was inventing the story of peeping through the Galmochha of the appellant so as to picking up the identifying features of the appellant and that statement appears accentuated by a strong motive to implicate the appellant falsely. The evidence is suspect, if not untrue and the trial Judge fell in grave error, when he was recording the conviction of the appellant under the circumstances as indicated above. 4 5. The appeal succeeds. The judgment of conviction and order of sentence both are hereby set aside. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 12th day of August, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)