Criminal Appeal (SJ) No.56 of 1999 Against the judgment and order of conviction dated 09. 03. 1999 and order of sentence dated 12. 03. 1999, passed by Shri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani, passed in Sessions Trial No. 67 of 1985/127 of 1996. Ugresh Thakur, S/o Ram Chandra Thakur, resident of Village- Sambhuar, P.S. Madhubani, District- Madhubani. .... .... Appellant. Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 57 of 1999 Against the judgment and order of conviction dated 09. 03. 1999 and order of sentence dated 12. 03. 1999, passed by Shri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani, passed in Sessions Trial No. 67 of 1985/127 of 1996. 1. Raj Kumar Paswan, son of Swaroop Paswan. 2. Swaroop Paswan, son of Sukhlal Paswan. 3. Shiv Lal Paswan, son of Sharwan Paswan. All resident of Village- Salempur, P.O. Salempur, P.S. Pandaul, District- Madhubani. .... .... Appellants. Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 73 of 1999 Against the judgment and order of conviction dated 09. 03. 1999 and order of sentence dated 09. 04. 1999, passed by Shri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani, passed in Sessions Trial No. 67 of 1985/127 of 1996. Bauku Paswan @ Boka Paswan, son of Swaroop Paswan, Resident of Village- Salempur, P.S. Pandaul, District-Madhubani. .... .... Appellant. Versus The State of Bihar .... .... Respondent. (In CR. APP (SJ) No. 56 of 1999) For the Appellant. : Mr. Arun Kumar Verma, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. (In CR. APP (SJ) No. 57 of 1999) For the Appellants. : Mr. Durgesh Nandan Advocate. Mr. Hriday Pd. Singh, Advocate. 2 Mrs. Kiran Sinha, Advocate. Mr. Ram Nath Saran, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. (In CR. APP (SJ) No. 73 of 1999) For the Appellant. : Mr. Durgesh Nandan Advocate. Mr. Hriday Pd. Singh, Advocate. Mrs. Kiran Sinha, Advocate. Mr. Ram Nath Saran, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Three appeals have heard together and disposed of by the common judgment as all the three appeals arose out of the same judgment and order dated 9th March, 1995, passed by Shri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani, in Sessions Trial No. 67 of 1995/ 127 of 1996, by which he has convicted the appellants for offence under Section 395 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged in the Fardbeyan by the informant Bauan Khatbe that in the night of 24/25th June, 1984 at about 12 midnight while he 3 was sleeping at his darwaja then his wife came from orchard and got him awaken in the meantime 20-25 persons came lit the torch out of whom he identified then his wife also lit the torch and asked Ugresh Thakur that why he had come but in the meantime, Swarup Paswan, aged about 65 years, Raj Kumar Paswan aged about 42 years, Bauku Paswan aged about 40 years and Shivlal Paswan, aged about 60 years armed with lathi and fata assaulted her and some persons entered into the house by breaking open the door (kundal) and they assaulted his son and daughter and looted away articles. 4. On the Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted. During trial 13 witnesses were examined. However, during the trial, the informant did not supported the prosecution case about identification of the accused persons and stated that he did not identified any one though, has supported the prosecution case that ten persons came and lit the torch, but he did not identified the accused. P.W. 12 the wife of the informant has also not supported the prosecution case regarding identification of accused persons, though, come to depose that dacoity took place 4 in her house, but she did not identify the accused. I.O. in this case has not been examined. However, P.W. 2 and 4 are sons and P.W. 3 is daughter of the informant have supported the prosecution case and claimed to have identified the appellants in the light of the torch lit by them and they have claimed to identified Ugresh Thakur, Raj Kumar Paswan, Swarup Paswan, Bauku Paswan and Shivlal Paswan. 5. However, defence of the accused is prior enmity and false implication with regard to their claim and dispute for wages.. 6. However, P.W. 2, though, claimed to have identified the accused but has not stated what act was being done by the appellants at the time when he identified them. P.W. 4, though, has stated that when he was sleeping in the verandah dacoits came and assaulted him then got up and they abused him to flee away then he flee away towards orchard and has stated that he identified the dacoits in the light of the torch. However, he has also not stated that what act was being done when he identified the dacoits in the light of the torch. He has further stated in his cross-examination-in-chief that he 5 identified the dacoits in the light of the torch lit by them as well as by their voice and hence identification of this witness also appears to be doubtful. P.W. 3 claimed to be daughter of the informant stated that on hulla she got up then Swarup Paswan catch hold of her sari by which she fell down and she identified five dacoits. She has stated Ugresh Thakur snatched her hold ear ring and Bauku Paswan taken out her Nathia and claimed to have identified them in the light of the torch lit by them. She also claimed that she got injured and treated by the doctor, but this injury has not been proved. 7. However, taking into consideration the evidence of P.W. 2, 3 and 4, it is apparent that the means of identification by which the witnesses identified in the torch light lit by the dacoits as well as the voice of the appellants and hence both the means are very weak piece of evidence and the identification in the light of the torch lit by dacoits as well as by their voice is doubtful hence does not inspire confidence. However the I.O. has not been examined and informant and his wife have turned hostile and have not supported the prosecution case regarding the dacoity. It is also pointed out that 6 appellants are co-villagers and it is highly improbable that they are coming for the purpose of dacoity without concealing their face. 8. Hence under the facts and circumstances, the appellants are entitle for benefit of doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and all the three appeal are allowed. Patna High Court, The 1st December, 2011. NAFR/m.p. ( Gopal Prasad, J.)