Criminal Appeal (SJ) No.79 of 1997 **** Against the judgment, dated 26.02.1997 and 28.02.1997, passed the Sessions Judge, Siwan, in S. Tr. No. 23 of 1991 **** Vijay Kumar Singh, son of Shree Jand Bahadur Singh, resident of village Kartalpur, P.S. G.B. Nagar (Gaya Khothi) district Siwan .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Prabhakar Singh, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged by the informant, P.W. 5, Sipahi Lal Prasad, that on 29.10.1979 at about 12.30 p.m. he got up on the sound of breaking of the door, in the meantime, the door opened and five dacoits entered and they assaulted the informant and his wife by slaps and fists and the dacoits started decamping after taking two boxes. The informant got hold of one dacoit, in the meantime, the other dacoit fired and it is alleged that the dacoit who fired was identified as Vijay Kumar Singh. 2 4. On the fardbeyan the first information report lodge and after investigation charge sheet submitted, cognizance taken and the case was committed to the Court of Sessions. 5. During the trial five witnesses examined. P.W. 5 is the informant, who supported the prosecution case in his examination-in- chief as mentioned in the fardbeyan as stated above. However, in cross examination he stated that Vijay Kumar Singh is his co-villager. The night was dark and there was no light in the house. The dacoits had covered their faces by clothes and he had taken the name of Vijay Kumar Singh on suspicion. P.Ws. 1 and 2 have deposed that they reached at the place of occurrence after the occurrence. However, stated that he did not know that who the dacoits were at the time when he reached there, however, later it was learnt that there is doubt on Vijay Kumar Singh in the group of dacoits. P.W. 3 is tender and P.W. 4 is a formal witness and has formally proved Exhibit “A” and P.W. 6 is the wife of the informant. She also supported the prosecution case, but, has stated that the person to whom her husband has caught, his name was Vijay Kumar Singh and in cross examination stated that the dacoits had covered their faces and she did not identify. 6. However, the trial Court taking into consideration the evidence of P.W. 5 in his examination-in-chief has stated the name of this appellant and P.W. 1 has stated that later he learnt that Vijay Kumar Singh has been convicted. 7. The learned counsel for the appellant, however, contended that though P.W. 5 claims to have identified the appellant in his fardbeyan as well as in his examination-in-chief, but, in cross 3 examination he specifically stated that the dacoits had covered their faces and it was a dark night and he named Vijay Kumar Singh, a co- villager, on the basis of suspicion and, hence, the evidence of P.W. 5 is not reliable to record as order of conviction. 8. The learned counsel for the State, however, opposed the contention. 9. However, taking into the facts and circumstances that there is only one witness, P.W. 5, who claimed to have identified the informant and though has stated the name of Vijay Kumar Singh in the fardbeyan as well as in examination-in-chief, but, in his cross examination he has admitted that the night was dark and there was no light and he named the appellant on suspicion and, hence, evidence suffers from infirmities demolishes the entire case of prosecution. The other witness having not supported the prosecution case and the investigating officer has also not been examined, hence, under the facts and circumstances, I find and hold that the prosecution case has not been able to prove the charges beyond reasonable doubts. 10. Hence, the order of conviction, recorded by the lower Court is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 05th day of September 2011, N.A.F.R., S.A.