Criminal Appeal (SJ) No.3 of 1998 Against the judgment of conviction and order of sentence dated 10.12.1997 passed by 3rd Additional Sessions Jude, Munger in Sessions Case No.19 of 1995 arising out of G.R.Case No.98 of 1991. LAXMAN RAM.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT With Criminal Appeal (SJ) No. 224 of 2000 NARO RAM @ NARBAD RAM.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: Sri Neeraj Kumar @ Sanidh, Amicus Curiae . For the Respondent: Sri Ajay Mishra, A.P.P. THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J These two appeals have been preferred by each of the two appellants against judgment dated 10.12.1997 passed in the above case. The appellants were tried together for committing offences under Sections 412 and 307 IPC in Sessions Case No. 19 of 1995, but were found not guilty of committing the offences under Sections 307 and 412 IPC while they were held guilty of committing the offences under Section 2 395 IPC. The appeals bring into question the findings of guilt recorded against the two appellants by the learned trial Judge. 2. It appears that a dacoity was committed in the house of the informant(P.W.7), properties were plundered, lady inmates of the house along with the brother and other family members of the informant were badly assaulted so much so that they were shifted the very next morning of the night intervening 15-16th of March, 1991 into Hospital, Barbigha for treatment. The appellant Naro Ram @ Narbad Ram is named in the FIR. Appellant Laxman Ram was not named therein. 3. On investigation of the case, the appellants were sent up for trial and that ended in the impugned judgment. 4. The defence of the appellants was of false implication on account of some dispute for a particular plot of land which was admittedly (please see P.W.7 para-8) 3 mortgaged by the informant to the father of appellant Naro Ram @ Narbad Ram. The learned trial Judge rejected the claim of the witnesses that they had identified appellant Naro Ram @ Narbad Ram in test identification parade held for establishing the participation of the suspected accused in the said dacoity but still went on to convict the two appellants. 5. The appeal has to be decided on a very short point. P.W.7 stated that he had identified not only Laxman Ram and Naro Ram @ Narbad Ram, the two appellants, but some others also as may appear from his evidence both in examination-in-chief and cross- examination. It is not disputed that the two appellants are not only the co-villagers but on account of the mortgage of a particular piece of land by the informant to the father of Naro Ram the two appellants were undisputedly known to him and his family 4 members. It does not appear disputed either that the informant has stated that some of the witnesses, like, Balmiki Pandey and Maheshwar Pandey had told him that they had also identified the appellant Laxman Ram, accused Sato Ram and appellant Naro Ram @ Narbad Ram. I have already indicated that appellant Naro Ram was claimed identified during the course of the commission of the dacoity and as such was named very specifically in the FIR. 6. The question is as to whether the evidence of identification of the appellants is fit to be accepted and to be acted upon. 7. While considering the evidence of P.W.7 I came across that he has claimed identifying the two appellants besides others also during the course of commission of dacoity. In fact, Laxman Ram has been alleged identified while he was moving out of the house with some plundered properties. During cross-examination P.W.7 the informant stated 5 that most of the dacoits had taken precautions by putting up Galmochha on their faces to conceal their identities. If this was the evidence indicating that persons who were not named or even those who might have been unknown to the informant, had taken precautions by concealing their identities then it was simply absurd to believe that persons who could be next door neighbours of the informant and his family members, who had been so well acquainted with the informant as he had mortgaged a piece of land to the father of appellant Naro Ram that they could be going to commit dacoity without concealing their identities. This is the simple absurdity in the evidence of the prosecution which makes the evidence of identification by witnesses of the appellants doubtful. If the appellants were already known to the informant and his family members and if they had gone to commit dacoity it may be reasonable to suppose that 6 they cannot go to commit the act unless they had properly secured their identities by putting up Galmochha. 8. I have already indicated that the evidence of identification in test identification parade has been rejected by the learned trial Judge. In view of the discussion on the absurdity of evidence of identification and further lack of evidence establishing the participation of the two appellants, I find that the judgment of conviction and the sentences passed upon the two appellants is not fit to be sustained. In the result, the two appellants are acquitted by setting aside the order of conviction and sentences passed upon them. The two appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 9. Sri Neeraj Kumar @ Sanidh, learned Amicus Curiae has assisted this Court and he deserves one fee of argument, which is 7 directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last pages of the judgment be made over to him. Patna High Court, Dated, the 3rd of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)