Criminal Appeal (SJ) No. 2 of 1999 WITH Criminal Appeal (SJ) No. 14 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 23.12.1998 respectively passed by Shri Braj Kishore Prasad Gupta, learned Additional Sessions Judge – 3rd, Buxar in Session Trial No. 84 of 1997. ~~~~~~ Lal Bhukhan Yadav @ Bhukhan Yadav @ Lal Bhukhan Singh, Son of Late Shiv Pujan Singh alias Hulela Singh, resident of village – Barhana, Police Station – Itarhi, District – Buxar. .... .... Appellant (In Criminal Appeal (SJ) No. 2 of 1999). ~~~~~~ 1. Deonath Goar, Son of Sheo Shankar Goar. 2. Awadhesh Kamkar, Son of Late Arjun Kamkar. 3. Nata Kamkar, Son of Late Kathamal Kamkar. All residents of village – Chichar, P. S. – Itarhi, District – Buxar. .... .... Appellants (In Criminal Appeal (SJ) No. 14 of 1999). . Versus The State Of Bihar .... .... Respondent. ~~~~~~ (In CR. APP (SJ) No. 2 of 1999) For the Appellant : Mr. Pushkar Narain Shahi, Advocate. Mr. Ritesh Kumar No. 1, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. (In CR. APP (SJ) No. 14 of 1999) For the Appellants : Mr. Ranbir Singh, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant, learned counsel for the State as well as learned amicus curiae in Cr. Appeal (SJ) No. 14 of 1999. 2. These two appeals are being heard together and disposed of by the common order and judgment as both arise out of the same judgment and order passed by Shri Braj Kishore Prasad Gupta, learned Additional Sessions Judge – 3rd, Buxar in Session Trial No. 84 of 1997. 3. The appellants have been convicted under Section 395 and 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 2 4. The prosecution case, as alleged, is that the informant along with Chaukidar was deputed for night patrolling at Bijhaura crime centre. While on duty on 20.04.1990 at about 7:00 P.M. when they were coming through Atrauna Canal Road and reached near Bijhaura bridge they heard Hulla of chor-chor and saw 8 – 9 persons running away out of whom they identified Deo Nath Goar, Awadhesh Kamkar, Uma Shankar Koiri and Nati of Chamru Ram in their torch light but the criminals managed to escape. Thereafter at some distance they saw Dinesh Kumar Dubey along with his wife in an injured condition in the west of the canal and from them they learnt that 8 – 9 persons had snatched their briefcase containing twenty five hundred rupees, jewellery and H.M.T. watch. The criminals tried to kill Dinesh Kumar Dubey as his wife had identified two miscreants. The further case of the prosecution is that it was learnt that in same night Ram Nath Mishra fled away leaving his Hero Cycle seeing the miscreants. 5. On the fardbeyan, First Information Report was lodged and during investigation Lal Bhukhan Yadav @ Bhukhan Yadav apprehended and Test Identification Parade was conducted and was also identified in dock and after investigation charge-sheet was submitted and trial proceeded. 6. During the trial 10 witnesses were examined by the prosecution. Out of the 10 witnesses P. Ws. 1, 6, 9 and 10 are formal witnesses. The informant and the I.O. were not examined in this case. The other witnesses deposed. However, P. W. 2 in his evidence has stated that he did not identify any person. P. W. 3 has stated that at the time of occurrence he saw 3 - 4 persons fleeing away but he did not identify any person. In Test Identification Parade he identified one person Lal Bhukhan Yadav. He has stated that he knows Lal Bhukhan Yadav since last 20 – 25 years. However, he has not stated that he identified this Lal Bhukhan Yadav during the dacoity or at the time of dacoity nor he has stated any role of omission and commission by him at 3 the time of the occurrence. P. Ws. 4 and 5 also in similar manner have stated that they did not identify any persons at the time of occurrence nor have stated that they saw accused persons fleeing away at the time of occurrence. However, both P. Ws. 4 and 5 have stated that they identified Lal Bhukhan Yadav in Test Identification Parade in jail but they have not stated that what act of omission and commission was committed by him during the dacoity nor any role has been attributed to him at the time of dacoity. 7. Hence, though P. Ws. 3, 4 and 5 have identified the appellant Lal Bhukhan Yadav in Test Identification Parade but no role has been attributed and nothing has been stated against him about participation in the dacoity. Hence, the mere identification without any role attributed to him at the time of occurrence does not lead to conclusion about the implication of Lal Bhukhan Yadav in crime to make out a case for the offence under Sections 397 and 395 of the Indian Penal Code. Hence, I find and hold that the prosecution has not been able to prove the charges for the offence under Sections 397 and 395 of the Indian Penal Code against Lal Bhukhan Yadav and is entitled to benefit of doubt. 8. However, P. W. 7 is the only witness who has identified the appellant Deo Nath Guar, Awadhesh Kamkar and Nata kamkar in dock. However, in cross- examination the attention has been drawn about the fact whether she had stated before the police the name of the accused persons which answer in affirmative but the I.O. has not been examined and the contradiction could not be recorded. However, with regard to the three appellants the only identification is by P. W. 7. However, in cross-examination P. W. 7 has stated that she does not remember whether at the time of occurrence the appellants had concealed their face or not. 9. Hence, having regard to the facts and circumstances since the appellant Lal Bhukhan Yadav of Cr. Appeal (SJ) No. 02 of 1999 was identified by three witnesses 4 but none has stated about his role during the dacoity and hence the order of conviction and sentence under Section 395 and 397 of the Indian Penal Code is sustained when there is no evidence what role attributed to him at the time of dacoity. However, so far the appellants of Cr. Appeal No. 14 of 1999 Deo Nath Goar, Awadhesh Kamkar and Nata Kamkar is concerned, they have only been identified by P. W. 7 and the identification was only made in court. She has stated that she cannot say whether they had concealed their face or not but claim to have identified while they were passing through her. However, the I.O. has not been examined in this case and contradiction regarding the attention drawn could not been recorded hence it cause prejudice to the appellants and moreover this is a case of single identification and none came to support the prosecution case hence the appellants of Cr. Appeal (SJ) No. 14 of 1999 are entitled for the benefit of doubt. Hence, benefit of doubt goes to the appellants. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt, the order of conviction and sentence is hereby set aside and this Appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 14th October, 2011. N.A.F.R./Kundan.