Criminal Appeal (SJ) No. 308 of 1999 ~~~~~~ Against the judgment of conviction dated 30.07.1999 and order of sentence dated 02.08.1999 passed by Sri Bansh Lochan Singh, learned Additional Sessions Judge- 2nd, Nalanda, Biharsharif in S. T. No. 80 of 1983. ~~~~~~ Raghunandan Gope, Son of Late Brihaspat Gope, resident of village – Kharzamma, P. S. – Islampur, District – Nalanda. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Bhala Kumar, Advocate. 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 and learned counsel for the State. 2. The appellant has been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case is that in between the night of 17/18th June, 1980 at about 1:00 A.M. in the mid night while the informant Lala Mahto was sleeping at his roof of his house then three persons came and surrounded him. Thereafter 20-22 persons were entered into the house of the courtyard and ransacked the house. The dacoits who were outside of the house were firing and then the villagers collected. It is stated that the villagers were surrounded, assaulted the dacoits by Lathi and Danda. The informant along with some persons was restraining the villagers not to assault the dacoits. It is further alleged that the looted articles were recovered from the five dacoits. Four dacoits were killed by the villagers and one dacoit who was caught by the villager was brutally assaulted. The said person who was injured 2 disclosed his name as Raghunandan Gope. He disclosed the name of the four dacoits and stated that they were returning after distributing the booty of loot in dacoity and has stated that he used to go for begging. 4. On the fardbeyan of the informant investigation proceeded, charge-sheet was submitted, cognizance was taken. After framing of the charge ten witnesses were examined. During investigation the appellant was never put on Test Identification Parade. 5. The trial court taking into consideration the evidence of the witness nos. 1, 2, 3, 4, 8 and 9 has identified the appellant convicted for the offence under Section 395 of the Indian Penal Code. 6. Learned counsel for the appellant, however, contended that none of the witnesses except P. W. 9 has stated what act of commission and omission have been committed by the appellant. The appellant was never put on Test Identification Parade and the prosecution case in the First Information Report is that after dacoity while the appellant was distributing booty the villagers surrounded and caught the dacoits. There is not specifically mentioned that the appellant was participated in the dacoity in the house of the informant. Hence, there is no evidence regarding dacoity or participation in dacoity and hence the order of conviction and sentence is not sustainable. 7. P. W. 1 has stated that dacoits were chased by the villagers and identified Raghunandan Gope who is not present in court. However, this witness has not stated that what act of commission and omission was done by him during the dacoity. Hence, mere identification will not hold that the appellant was participated in the dacoity. However, in similar fact P. W. 3 has also stated that one person caught hold disclosed his name as Raghunandan Gope and similarly P. Ws. 4, 5 and 8 though named Raghunandan Gope but has not specifically stated that he was 3 identified while committing dacoity nor it has been mentioned what act of commission and omission done by him during dacoity. 8. P. W. 9 has stated that he identified one dacoit in the light of the torch and his name was Raghunandan Gope. However, in cross-examination she has stated that she identified Raghunandan Gope while he was taking utensils. 9. However, having regard to the fact that the name of the appellant in the first information report but there is no specific averment about the act of commission and omission made by him at the time of dacoity. Except P. W. 9 none of the witnesses in their evidence have stated that he saw the appellant at the time of the dacoity or what act of commission and omission was being done by the appellant. The only evidence is that after the dacoity it was learnt that dacoits were sharing the booty then police and villager chased the dacoit at a far off place from the place of occurrence where the appellant was caught. Hence, the identification of the appellant at a distance far off from the place of occurrence cannot be fastend with the liability of dacoity and hence the order of conviction based on the evidence that he was caught and identified there by the villagers does not fasten him with the charge for the offence under Section 395 of the Indian Penal Code. The I.O. of this case has also not been examined. Hence, the order of conviction and sentence recorded by the lower court is hereby set aside. Hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 2nd December, 2011. N.A.F.R./Kundan.