Criminal Appeal No.141 OF 1995 (S.J.) [Appeal against the judgment and order dated 18.7.1995 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.54 of 1994/ 3 of 1994] 1. BISHWANATH PRASAD KESHRI @ BISHWANATH KESARI S/O LATE JAGDISH BHAGAR 2. RAGHUNATH KESHRI SON OF DEO NARAYAN BHAGAT, BOTH OF VILLAGE HARPUR HARI, P.S. PATEPUR, DISTT. VAISHALI 3. SHEOCHANDRA PASWAN SONOF PARSADI PASWAN OF VILLAGE SAHWAJPUR PURAINA, P.S. PATEPUR, DISTRICT VAISHALI ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Nirmal Kumar Sinha No.3, Advocate Mr. Arun Kumar, Advocate For the Respondent : Mr. Anil Kr. Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s.395 I.P.C. and sentenced to R.I. for six months by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.54 of 1994/ 3 of 1994 by a judgment dated 18.7.1995. The prosecution case is that in the night between 19/20.7.1993 a dacoity had taken place in the house of the informant (P.W.7) in which the mother of the informant allegedly identified the appellant nos.1 and 3. Subsequently the appellant no.2 was put on Test Identification Parade and identified by the P.W.7. During trial the prosecution has examined ten - 2 - witnesses on its behalf. Out of whom, P.W.1 is the mother of the informant and on the fact that she had identified the appellant nos.1 and 3 during the course of dacoity. P.W.2 is only on the factum of the occurrence and his evidence was expunged since he did not appear for cross examination. P.W.3, who is a neighbour, had gone to the place of occurrence after the dacoity and hearsay on the point of identification of appellant nos.1 and 3. P.W.4 has been tendered by the prosecution. P.W.5 is a co- villager and hearsay on the point of identification of the appellant nos.1 and 3. P.W.6 is also on the same count. P.W.7 is the informant on the factum of occurrence as well as the identification of the three appellants. P.W.8 is the Judicial Magistrate, who conducted the Test Identification Parade on 3.9.1993 of the appellant no.2 in which he was identified by P.W.7, the informant. P.W.9 is the doctor, who examined the injured and P.W.10 is the Investigating Officer of the case. The appellants did not dispute the factum of the occurrence but disputed their complicity in the same. The admitted position is that the appellant nos.1 and 3 were well known to the prosecution and in fact there were some civil disputes pending between them, for which Exhibit A and B were brought on record by them. In this background the possibility of false implication cannot be ruled out. As per the evidence of P.W.8, it appears that the Test Identification Parade of Appellant no.2 was held on 3.9.1993 i.e. almost two months later and in view - 3 - of the sole identification of appellant no.2, I am not inclined to accept the same. Under the circumstances, the prosecution has failed to prove its case beyond all reasonable doubt. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 18.7.1995 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.54 of 1994/ 3 of 1994 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 26th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )