` Criminal Appeal (SJ) No.307 OF 1997 [Appeal against the judgment and order dated 27.9.1997 passed by the 1st Additional Sessions Judge, Madhepura in Sessions Trial No.49 of 1991] Kailash Paswan son of Late Atru Paswan, resident of village Bhagipur, P.S. Alam Nagar in the district of Madhepura …………………….. Appellant Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Jai Prakash Singh, Advocate For the Respondent : Mr. Aditya Nr. Singh-I, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.395 I.P.C. and sentenced to R.I. for seven years as also a fine of Rs.10,000/- and in default of which further imprisonment of six months by a judgment dated 27.9.1997 passed by the 1st Additional Sessions Judge, Madhepura in Sessions Trial No.49 of 1991. 2. The case of the prosecution according to the informant Ramesh Kumar is that a dacoity was committed in his house on 6.12.1988 in which the appellant was identified. 3. During trial, the prosecution has examined eight witnesses. Out of whom, P.W.1 is the sister of the informant, whereas P.W.2 is the mother of the informant. She stated that she had identified the appellant by his voice. P.W.3 is the brother of the informant. He is also said to have identified the appellant by his voice. P.W.4 is the father of the informant and claims that his daughter-in-law had disclosed the name of the 2 appellant. He stated that one hour after the dacoity the appellant was available at his house. P.W.5 is the informant, who also stated that he identified the appellant by voice, which is a marked departure from the claim made by him in the First Information Report that he had identified the appellant by face. P.W.6 is the wife of the informant, who conceded that the appellant used to live at the distance of 100-150 yards. P.W.7 is a formal witness, whereas P.W.8 is the son of the Investigating Officer. The Investigating Officer himself has not been examined. 4. On going through the evidence on record, I find that at best it is a case of identification of the appellant by voice which is improbable on account of the fact that the appellant used to live about 100 yards away from the house of the informant and had he participated in the occurrence, he would have been identified by face and not by voice. 5. In the result, giving benefit of doubt to the appellant, the appeal is allowed and the order of conviction and sentence passed against the appellant on 27.9.1997 by the 1st Additional Sessions Judge, Madhepura in Sessions Trial No.49 of 1991 is set aside. The appellant is discharged from the liability of his bail bond. Patna High Court Dated, 29th June, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )