Criminal Appeal (SJ) No. 239 OF 1996 Against the judgment and order dated 09/10.09.1996 passed by Sri Arun Kumar Singh, 2nd Additional District & Sessions Judge, West Champaran at Bettiah in S.Tr. No. 146/85. ************ 1. Mansoor Khan, S/o Ataud Khan alias Chotak Khan. 2. Rashid Sah alias Rashid Mian, S/o Md. Alam Sah. 3. Zalil Khan alias Zalil Mian, S/o Yakub Mian. 4. Dhora Sah alias Daroga Raut, S/o Magan Raut. 5. Banarsi Yadav alias Banarsi Raut, S/o Bhola Yadav. 6. Balister Sah alias Bahri Sah, S/o Indrasan Sah. 7. Zahur Mian, S/o Aziz Mian. 8. Allaudin Mian, S/o Taalli Mian. 9. Bhana Sah alias Dara Yadav, S/o Indrasan Sah. 10. Garaj Mushar, S/o Chaturi Mushar. Appellant No. 1 to 7 and 9, 10 are resident of Village- Meghwal Mathia, Harpur, P.S.-Ram Nagar, Dist.-West Champaran and Appellant No. 8 is Resident of Village- Mathia, P.S.-Ram Nagar, Dist.-West Champaran. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. V. V. Tiwary, Adv. For the State : Dr. Indiwar Kumari , APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants No. 1 to 3 and 7 to 10 have been convicted under Section 395 IPC and sentenced to RI for 10 years whereas appellants No. 4, 5 and 6 have been convicted under Section 412 IPC and sentenced to five years RI by the 2nd Additional District and Sessions Judge, West Champaran at Bettiah in S.Tr. No. 146/85 by a judgment dated 09/10.09.1996. 2. The case of the prosecution according to the informant Satyanarayan Singh is that on 13.11.1983 a dacoity was committed in the Banjaria Farm by unknown miscreants. During investigation the appellants were arrested on the basis of suspicion and put on trial. Appellants No. 1 to 2 3 and 7 to 10 were put on Test Identification Parade whereas Appellants No. 4, 5 and 6 were arrested with incriminating stolen articles which were put on Test Identification Parade and identified by the witnesses. 3. During trial the prosecution examined sixteen witnesses out of whom P.W. 1 and P.W. 10 are formal witnesses whereas P.W. 15 and P.W. 16 who were seizure witnesses have been declared hostile. Similarly, P.W. 3 and P.W. 5 who were also identifying witnesses have been declared hostile. P.W. 8 is the Judicial Magistrate, 1st Class who conducted the Test Identification Parade of the seized articles on 28.11.1983 whereas P.W. 9 is the SDJM, Bagaha who got conducted the Test Identification Parade of the articles recovered from the possession of the three appellants. P.W. 2 identified five accused persons in the Test Identification Parade as also in the dock but he conceded that it was a dark night as stated in paragraph 13 and 14. He further conceded that he had seen five accused persons at the police station. In paragraph 17 he stated that it was the police who told them that the accused persons were involved in the present occurrence. In the light of the fact that he was identifying witness along with P.W. 4, P.W. 6 and P.W. 7. the identification of the accused persons is not beyond suspicion and, therefore, on this score alone the appellants are acquitted of the charges and discharged from their liability. 4. As for the recovery of articles from the house of the appellants No. 4, 5 and 6 they appear to be common place as also the witness have denied the fact of 3 recovery from their houses. In view of the independent witnesses P.W. 14 and P.W. 15 not having supported the fact of recovery, this Court finds it difficult to sustain their conviction under Section 412 IPC and therefore they are acquitted of the charges. 5. In the result, the appeal is allowed and the judgment dated 09/10.09.1996 passed by the 2nd Additional District & Sessions Judge, West Champaran, Bettiah in S.Tr. No. 146/85 is, hereby, set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 29th June, 2011. NAFR/Vikash/-