Criminal Appeal (S.J.) No. 170 of 1997 (Appeal against the Judgment and Order dated 17.6.1997 passed by the Additional Sessions Judge, Hilsa, in Sessions Trial No. 569 of 1996.) ------------ HITENDRA PRASAD, SON OF SRI RAMESH PRASAD OF VILLAGE BESHMAK, P.S. ISLAMPUR, DISTT. NALANDA. ------- APPELLANT. Versus THE STATE OF BIHAR ------- RESPONDENT. ---------- For the Appellant : Mr. Binoy Kumar, Advocate. For the State : Mr. Suraj Prasad Singh, A.P.P. ---------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellant has been convicted under Section 395 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years by a Judgment dated 17.6.1997 passed by the Additional Sessions Judge, Hilsa (Nalanda) in Sessions Trial No. 569 of 1996. 2. The case of the prosecution according to Sheonandan Prasad is that on 21.10.1995, a dacoity was committed in his house by some known and unknown persons. He identified the Appellant Hitendra Prasad in the said transaction. 3. During trial, the prosecution examined ten witnesses. PW-10 Sheonandan Prasad, Informant, supported the factum of occurrence as also that he had identified the Appellant Hitendra Prasad in the transaction. However, he stated that he cannot see beyond 3 cubits without using spectacles. He further stated that he was at a distance of about 25-30 feet at the time he had identified the Appellant. PW-8 Mritunjay Kumar is the grandson of the Informant. He stated that he did not identify those persons who had concealed the identity but since the Appellant had not concealed Patna High Court CR. APP (SJ) No.170 of 1997 dt.22-07-2011 2 his identity, he saw him snatching the chain and ear ring of his sister Mamta. In his cross-examination, he stated that by relation of his village, Appellant Hitendra Prasad is his uncle. He further stated in his cross-examination that he identified the Appellant by relationship and also exonerated him saying that he had not taken part in the occurrence. PW-1 Rita Devi, PW-2, Anjani Kumar, PW-3 Soni Kumari, PW-4 Devanti Devi, PW-5 Surendra Prasad are members of the Informant’s family, who supported the factum of occurrence, but, did not identify any accused and, therefore, they were declared hostile. Thus, there is only the evidence of PW-7, PW-8 and PW-10 which support the prosecution case. 4. P.W-7 has merely stated about the factum of occurrence and his evidence is immaterial since the factum is not in dispute. 5. As for the evidence of PW-8 he has stated that the Appellant had not participated in the occurrence whereas PW-10 stated that the Appellant was 25-30 Feet away while he could only see till about 3 Feet. Hence it appears that there is no evidence against the Appellant to warrant his conviction. 6. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellant in Sessions Trial No. 569 of 1996 by the Additional Sessions Judge, Hilsa (Nalanda), is hereby set aside. 7. The Appellant is discharged from the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 22nd July, 2011. NAFR/S.ALI.