Criminal Appeal (SJ) No. 488 of 2007 --------- Against the judgment and order of conviction and sentence dated 16.12.2006 and 18.12.2006 passed by Shri Sudarsan Kumar Ray, Additional Sessions Judge, Fast Track Court –II, Madhepura in S.T. No. 30(A) of 1990. --------- Asharfi Sharma, son of Late Bhojal Sharma, resident of village – Brahnottar, P.S. – Udakishanganj, District – Madhepura ………………. Appellant Versus The State of Bihar ……………. Respondent --------- For the Appellant : Shri Sushil Kumar Singh, Advocate (Amicus Curiae) For the State : Shri Ajay Mishra, A.P.P. --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The appeal is directed against the judgment of conviction dated 16.12.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court – II, Madhepura in S.T. No. 30A of 1990 by which the solitary appellant Asharfi Sharma was held guilty of committing offence under sections 147, 323/34 and 364 IPC and was directed to suffer different terms of imprisonment ranging from RI for ten years to RI for three months and was also directed to pay a fine of rupees three thousand for his specific conviction under section 364 IPC. Sentences were directed to 2 run concurrently and in case of default of payment of fine, the appellant was to undergo RI for three more months. 2. The occurrence appears taking place in the evening at 7.30 on 6.11.1988 when, as per the prosecution story contained in the written report of P.W. 1, a mob of about 40-50 persons armed with gun, lathi and farsa, etc. came at his door, tied down his hands and feet and further tied him with a khoonta and, thereafter, entered inside his house to plunder his properties. They were simultaneously searching for Bharat Singh (P.W. 2), who appears hiding somewhere in the corner of the premises of the house. At any rate, the father of the informant, namely, Rameshwar Singh, was captured by the criminals and he was taken away with a threat being given to the informant that if he had not produced Bharat Singh (P.W. 2), they will butcher the father of informant Jai Prakash Singh. 3. On the basis of the written report, FIR of the case was drawn up and it appears that during the investigation, the appellant could not be apprehended and, as such, the charge sheets were submitted against other accused persons. Subsequently, the appellant was also tried in the above Sessions Trial by being charged under sections 147, 323, 380 and 364 IPC. 4. Four witnesses were examined by the prosecution out of whom P.W. 4 Kailash Pandit was declared hostile. The remaining three witnesses, namely, P.W.1 Jai Prakash Singh, the informant, Bharat Singh (P.W.2) and Rina Devi (P.W.3) supported the commission of the offence by a band of 40-50 armed persons, who 3 were also searching for P.W. 2 and who, ultimately, captured Rameshwar Singh. The three witnesses stated that accused persons were threatening that if the informant did not produce P.W. 2, Rameshwar Singh shall be annihilated. 5. As regards the present appellant, he appears identified only by P.W. 2 but, when his attention was drawn in cross- examination paragraph 4, he does not appear certain that he had named the present appellant on account of having identified him as one of the members of the criminals who had plundered the house of the informant and had taken away his father. He was stating that he did not really remember that he had named the present appellant. If this could be the admission of P.W. 4, the identification of Asharfi Sharma, the present appellant, pales into doubt. The remaining two witnesses, the informant of the case and P.W. 3 Rina Devi do not name the appellant. Rather, P.W. 1 has admitted in his cross- examination that he had not named the present appellant as a person who had been identified by him as a criminal. This is the evidence on which the appellant stood convicted. 6. In my considered view and in the light of the evidence, the court below was falling in error when it was mis-appreciating the evidence to raise an inference of participation and identification of the appellant in the alleged occurrence and was further faltering when he was holding the appellant guilty of committing different offences. It was a case in which, virtually, there was no evidence against the appellant. 4 7. In the result, the appeal succeeds and the appellant is acquitted of the charges under which he was held guilty and punished by the impugned judgment. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 8. Shri Sushil Kumar Singh, learned amicus curiae has assisted this court and he deserves a fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 25th August, 2011, NAFR/Anil/