CRIMINAL APPEAL No.623 OF 2005 **** Against the judgment and order of conviction, dated 07.12.2005, passed in T.S. No. 376 of 1996/227 of 2004 by Sri Diwakar Mishra, Additional District and Sessions Judge, Fast Track Court, V, Samastipur **** 1. Shyam Das 2. Arbind Das Both sons of Ram Lagan Das 3. Jitendra Das, son of late Baidyanath Das 4. Shivjee Mukhiya, son of Kusheshwar Mukhiya 5. Chunchun Ray, son of Asharfi Roy 6. Binod Das, son of late Bhagirath Chand Das All residents of village Bishanpur Malahtoli, Police Station Samastipur (Muff.), district Sitamarhi .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. Mr. Chaudhary Shyam Nandan, Adv. For the State .. Mr. S.N. Prasad, A.C. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants have been convicted for the offence under Section147 of the Indian Penal Code and sentenced to one year simple imprisonment, under Section 323 of the Indian Penal Code six months, under Section 149 of the Indian Penal Code six months and under Section 2 341 one year rigorous imprisonment by the learned Fast Track Court, V, Samastipur, by a judgment, dated 06.12.2005. 2. The case of the prosecution is that on 21.02.1996 the present appellants forcibly boarded the bus and variously assaulted the driver and the conductor of the bus and also committed theft of certain amounts of money. 3. The appellants were charged for the offences under Sections 147, 323, 327, 341, 504, 149 and 379 of the Indian Penal Code, but, acquitted of the charges with regard to Sections 307, 504 and 379 of the Indian Penal Code. 4. In support of it’s case the prosecution examined six witnesses out of whom P.W. 1 is the bus driver and the informant of the case whereas P.W. is the doctor, who examined the injured bus driver. P.W. 3 is a formal witness and P.Ws. 4 and 5 are the Helpers (Khalasis), who did not support the case of the prosecution and P.W. 5, who initially was an eye witness, has also not supported the case and has been declared hostile. P.W. 6 is the next Helper (Khalasi), who also did not support the case of the prosecution where the present appellants are concerned and he only supported the factum of the occurrence. It further appears that the entire case is based on the sole evidence of P.W. 1, the bus driver and the informant. The submission of the appellants that they belong to village Bishanpur within the district of Rosera whereas P.W. 1 belongs to Patna and, therefore, there was no occasions for him to have known the present 3 appellants by name or face. It is for this reason that P.W. 1 identified only appellant Jitendra Das in Court. It appears from the evidence of P.W. 6 that he himself conceded that the names of the appellants were disclosed by some passengers in the bus and he did not know them personally. From the evidence of P.W. 1, it is also evident that he can be relied upon only where the factum of the occurrence is concerned, but, his evidence on identification is very flimsy and can not be termed as fully reliable. Especially, since he is the sole witness on the question of identification which is not corroborated by the other Helper (Khalasi), i.e., P.W. 6, who also boarded on the same bus. Thus, in the circumstances, the question of participation of the appellants not entirely free from doubt they deserve to be given benefit of doubt. 5. Thus, considering the case in it’s entirety I have no hesitation in allowing the appeal and the appellants are, thus, discharged of the liabilities of the bail bonds. 6. This appeal is allowed and the judgment of conviction is set aside. (Anjana Prakash, J.) The Patna High Court, The 06th day of October, 2009, N.A.F.R./S.A.