CRIMINAL APPEAL No.66 OF 1993 (S.J.) Appeal against the judgment and order dated 27.02.1993 passed in Sessions Trail No. 401 of 1989/172 of 1990 by Shri Ratneshwar Nath Verma, 2nd Additional Sessions Judge, Gaya. SARBAN DAS, S/o Ram Nath Das, Resident of Village- Parsawan Tola Patal Bigha, P.S.-Bodh Gaya, Distt.- Gaya. ……….(Appellant) Versus THE STATE OF BIHAR …….. (Respondent) ----------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ************ Anjana Prakash, J. The appellant is aggrieved by the judgment of conviction dated 27.02.1993 passed by the 2nd Additional Sessions Judge, Gaya in Sessions Trial No. 401 of 1989/172 of 1990 by which he has been convicted for the offences under Section 148 of the Indian Penal Code and sentenced RI for one year. The prosecution case in brief is that on the night between 9/10 June, 1986 the informant and his family members woke up on some noise and they saw eight to ten persons who came and variously assaulted them. The appellant was named in the First Information Report as being the architect of the entire occurrence. After investigation the police submitted - 2 - charge-sheet under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code and Sections 4 & 5 of the Explosive Substance Act and the sole appellant was put on trial having been charged for the offences under Sections 148, 307 and 429 of the Indian Penal Code and Sections 4 & 5 of the Explosive Substance Act. However, the trial court acquitted the appellant of the charges under Sections 307 and 429 of the Indian Penal Code and Sections 4 & 5 of the Explosive Substance Act. The prosecution examined ten witnesses to prove its case out of which P.W. 1, P.W. 5 and P.W. 6 are formal in nature whereas P.W. 8 is tendered. The trial court has mainly relied on the evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 7, P.W. 9 and P.W. 10. The main defence of the appellant is that in fact the occurrence had been committed by unknown persons and since there was an earlier dispute between the appellant and the informant he was named in the First Information Report. The main material against the appellant is that while the occurrence was committed the “gulmocha” of the appellant fell off due to which he was identified. The admitted position is that the appellant is a co- villager and the manner in which the identification - 3 - of the appellant has transpired does not inspire confidence. The defence also examined three witnesses putting forth their case that in fact the appellant had been implicated on account of the fact that he was a witness in a case instituted by one, Shanti Devi upon Sundar Das for outraging her modesty. The said Sundar Das is nephew of the informant. Having gone through the evidence of the witnesses, I am of the view that the manner in which the identification of the appellant has been put forth by the prosecution does not inspire confidence and the appellant deserves to be given benefit of doubt. In the result, the appeal is allowed and the judgment of conviction and sentence is set aside. The appellant is discharged of the liability of his bail bond. Patna High Court Dated 22nd December, 2009 NAFR/Vikash (Anjana Prakash, J.)