Criminal Appeal (S.J.) No. 266 0f 1997 (Appeal against the Judgment and Order dated 5.8.1997 passed by the Additional Sessions Judge- IV, Begusarai, in Sessions Case No. 213 of 1984.) ------------ GHOGHAN PASWAN, SON OF LATE BAHOR PASWAN, RESIDENT OF VILLAGE KARAINTAR, P.S. BAKHRI, DISTT. BEGUSARAI. ------- APPELLANT. Versus THE STATE OF BIHAR ------- RESPONDENT. -------- For the Appellant : None For the State : Md. Aslam Ansari, 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 Sections 395 and 412 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years under each count by the Additional Sessions Judge-IV, Begusarai, in Sessions Case No. 213 of 1984 by a Judgment dated 5.8.1997. 2. The case of the prosecution according to the Informant, PW- 5 Ramdas Singh, is that on the night of 16.1.1983, unknown dacoits entered into his house and committed robbery in which many household articles along with one gun was taken away by the accused persons. The Appellant was not named in the First Information Report but subsequently, his complicity arose on account of which he was remanded in the present case and put on trial. 3. The prosecution in all examined nine witnesses out of whom PW-1 Vijay Kumar Singh and PW-2 Sanjay Kumar are full brothers, who supported the factum of dacoity in the house of PW-5 Ramdas Singh. PW-3 Sohan Singh, Informant, stated that a dacoity was committed in his Patna High Court CR. APP (SJ) No.266 of 1997 dt.21-07-2011 2 house on 16.1.1983 and later on, he attended a Test Identification Parade in which he identified the present Appellant and one Bishundeo Paswan who is now dead. He also alleged that the D.B.B.L. Gun No. 18207 which was looted away from his house, was recovered and returned on the orders of the Court. PW-6 Shuv Chandra Pandey was an eye witness to the occurrence, had stated that he was seen the dacoits in the light of electric bulb. He did not attend the Test Identification Parade. 4. PW-7 Kumar Vijay Singh is the Judicial Magistrate who stated that on 10.10.1983, he had conducted the Test Identification Parade of various articles which were also identified by the identifying witnesses. PW-8 Govind Chandrayan was also a Judicial Magistrate who stated that on 27.8.1983, when he was visited Begusarai, he was required to hold a Test Identification Parade of the Appellant and three others which was got conducted in the Begusarai Jail premises. In the said Test Identification Parade, PW-5 Ramdas Singh allegedly identified the Appellant and one Bishundeo Paswan. He is no more. The Test Identification Parade chart is marked as Exhibit-3. PW-5 is also a formal witness and had identified exhibit-4, the seizure list. PW-10 Ramsagar Yadav yet another formal witness, identified the injury report Exhibit-9 a Judgment of G.R. No. 1462 of 1983, was exhibited as exhibit-8, by the prosecution to show that D.B.B.L. Gun had been recovered from the possession of the Appellant, which was produced in that Court and in paragraph-2 of the Judgment, the description of the gun had been mentioned. Therefore, there was no cogent evidence that Appellant had ever been in possession of looted articles. 5. On a fair appraisal of the facts of the case, there is no doubt that the Appellant was put on Test Identification Parade, after seven months of the occurrence, and he was identified by a single witness which makes the identification open to doubt. Further, the fact that the Patna High Court CR. APP (SJ) No.266 of 1997 dt.21-07-2011 3 Gun was recovered from the house of the Appellant has not been legally proved in this case, and the Judgment of G.R. Case No. 1465 of 1983 in which there was reference to the Gun will have no bearing on the present case, since no one testified on the recovery. 6. In view of the discussion made above, the Appeal is allowed. The order of conviction and sentence passed against the Appellant in Sessions Case No. 213 of 1984 by the Additional Sessions Judge, Begusarai, 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 21st July, 2011. NAFR/S.ALI.