Criminal Appeal (SJ) No.34 of 1997 Against the judgment and order of conviction and sentence dated 20. 01. 1997, passed by Shri Awadh Kishore Singh Chauhan, 2nd Additional Sessions Judge, Darbhanga, in Sessions Trial N0. 115 of 1996 1. Sanjeev Jha, S/o Sri Dharmnath Jha, resident of Village- Nehra, P.S. Manigachhi, District- Darbanga. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mrs. Rina Sinha, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONBLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. On repeated calls no one appears on behalf of the appellant. 2. Mrs. Rina Sinha, Advocate appears and prays that she may be permitted to appear in this case as Amicus Curiae. 3. Prayer is allowed. 4. The appellant has been convicted for offence under Section 397 I.P.C. and sentenced to undergo rigorous imprisonment for ten years. 5. The prosecution case as alleged that while the informant returning home by his motorcycle and reached at Kagwa Gumti (railway crossing) and tried to cross the 2 railway crossing, which was closed, then three persons came from behind and surrounded him and one of them gave a blow by the butt of the revolver on his nose and others snatched the motorcycle. 6. On the basis of Fardbeyan, F.I.R. was drawn and the investigation proceeded. However, during investigation, one Sanjeev Jha was arrested in another case and in his statement before the Police confessed his involvement in alleged looted motorcycle of this case and on his confession co-accused Chandan Thakur was arrested along with looted motorcycle without number place but chesis number carried with looted motorcycle provided by the informant. The accused persons took on T.I.P. and after completion of the investigation charge sheet submitted. Cognizance taken and after cognizance the case was committed to the Court of Sessions. Thereafter, charge was framed under Section 397 and allied Sections of Indian Penal Code against two accused persons. 7. During trial, six witnesses were examined and supported the prosecution case. However, after considering both oral and documentary evidence, the trial 3 court taking into consideration the fact that appellant Sanjeev Jha has been identified in T.I.P. by the informant. P.W. 1 (informant) and P.W. 5 (I.O.) recovered the motorcycle and supported the prosecution case regarding recovery of motorcycle at the instance of Sanjeev Jha and on confession recover the motorcycle on the possession of Chandan Thakur. 8. P.W. 6, Judicial Magistrate, who conducted the T.I.P. supported the prosecution case and on considering the evidence, the trial court convicted the appellant for offence under Section 397 I.P.C. However, acquitted Chandan Thakur giving benefit of doubt. 9. P.W.1,informant has examined on 30. 07. 1996,and in his evidence has stated that two accused persons in the court were not among the persons who committed the crime and they are not the persons who are snatching the motorcycle or assault. However,evidence of this witness has again been recorded on 16.10.1996 and in his evidence in para 17 has stated that he participated in T.I.P.and identified one person and points out to accused Sanjeev Jha and deposed that he has stated before the Magistrate in T.I.P. that this persons who has pointed out 4 revolver at the time of looting of the motorcycle. But in cross-examination in para 19, this witness has stated that prior to go in T.I.P., the Darogaji got him identified this accused at Police Station and advised and directed to make statement before the Magistrate that this person who had pointed revolver at the time of looting motorcycle. Hence this witness at the first instance did not identify the appellant. Subsequently stated that prior to identification in T.I.P. Darogaji has shown the appellant and hence identification in T.I.P. of the accused and even subsequently in court lost its significance. However, other evidence against this accused is only evidence of P.W. 5 that this witness has stated in his statement that on the basis of confession of Sanjeev Chandan Thakur was arrested by Madhubani Police who was looted the motorcycle. However, there is no confession of the appellant recorded and confession before the Police is not admissible. The evidence of the Magistrate regarding T.I.P. has got no significance in view of the fact and statement of P.W. 1 that he identified the victim in T.I.P. at the instance of Daroga as Darogaji has shown the appellant to this witness in Police station. 5 10. Hence taking into consideration the entire facts and circumstance, there is nothing in the evidence against this appellant to prove the charges. Hence I find and hold that prosecution has not been able to prove the charges beyond all reasonable doubt. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 8th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)