Criminal Appeal (SJ) No. 280 OF 1996 Against the judgment and order dated 15.10.1996 passed by Sri Y.N. Jha, 2nd Additional Sessions Judge, Bhagalpur in S.Tr. No. 51 of 1995. ************ Fagu Yadav, S/o Lukhar Yadav, resident of Village- Choudharydih, Police Station-Sabour (Lodipur), District-Bhagalpur. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 292 of 1996 1. Ashok Yadav aliash Ashuwa Yadav, S/o Kamu Yadav. 2. Ashok Yadav, S/o Late Jamun Yadav. Both resident of Village-Choudharydih, P.S.-Lodipur, District-Bhagalpur. ……….(Appellants) Versus The State of Bihar……..(Respondent) ************* For the Appellants : Mr. Umakant Prasad, Adv. : Mr. Manoj Kumar, Adv. For the State : Mr. Suraj Prasad Singh, APP. : Mr. Pancha Nand Pandit, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 395, 397 and 412 IPC and sentenced to RI for ten years, seven years and ten years respectively by the 2nd Additional Sessions Judge, Bhagalpur in S.Tr. No. 51 of 1995 by a judgment dated 15.10.1996. 2. The case of the prosecution according to the ferdbeyan of Bodhram Gope, P.W. 3 is that on the night of 17/18.01.1993 while he was sleeping along with his family members and got up to urinate just then he heard some sound and saw 10-12 persons entered his house and started assaulting him and started lifting away their property. They also put them in fear and were injured by the miscreants who robbed them of all their cash jewellery and cloths. On cry 2 having been raised by the informant co-villagers reached there and started chasing the dacoits out of which the informant learnt that two of them had been arrested while one fled away. Out of the arrested persons Ashok Yadav, Appellant No. 1 of Cr. Appeal (SJ) No. 292 of 1996 and Fagu Yadav, Appellant of Cr. Appeal (SJ) No. 280 of 1996 were the two miscreants. 3. During trial the prosecution in all examined twelve witnesses out of whom P.W. 7, Kero Yadav and P.W. 9 Naresh Yadav have been tendered by the prosecution whereas P.W. 11, T. Hembrum is the Doctor who examined the injured. P.W. 12 is the Investigating Officer. P.W. 1, Mantu Yadav, P.W. 2, Bankey Yadav and P.W. 4, Shaligram Yadav are the three sons of the informant, P.W. 3, Bodhram Gope. P.W. 10, Muni Devi is the daughter-in-law of the informant. All these five witnesses are on the factum of occurrence. P.W. 5, Mahendra Yadav supported the factum of occurrence. P.W. 6, Chandra Yadav and P.W. 8, Hero Yadav have been declared hostile. 4. The defence also examined two witnesses on its behalf on the point that in fact appellant Ashok Yadav had gone to the house of his father-in-law on the date of occurrence. D.W. 1 and D.W 2 are on the point of false implication of Ashok Yadav. 5. The defence has not disputed the factum of occurrence but has seriously disputed complicity of the appellant. P.W. 4, the informant stated that after the occurrence the next day he was called to the police station 3 where he went on an auto rickshaw and saw the two appellants having been detained by the police and it was disclosed by the Officer In-charge that they had been caught in the present occurrence. The informant then identified the two appellants. Admittedly, the identification of the appellants at the Police Station is not in accordance with law and in my view benefit of doubt should be given to the appellants on this score. 6. In the result, the appeals are allowed and the judgment and order dated 15.10.1996 passed by the 2nd Additional Sessions Judge, Bhagalpur in S.Tr. No. 51/1995 is hereby set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 21st July, 2011. NAFR/Vikash/-