Criminal Appeal (SJ) No.302 of 1998 **** Against the judgment, dated 17.08.1998, passed by Shri Ram Narayan Singh, Additional Sessions Judge, IV, Purnea, in Sessions Case No. 180 of 1989/Tr. No. 206 of 1996 **** 1. Basiuddin @ Wasiuddin, son of Aliuddin 2. Raisuddin, son of Khikhru 3. Kamrul @ Md. Quamrul Haque, son of Azizur Rahman all residents of village Sadikpur Butha, P.S. Baisee, district Purnea .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Vikramdeo Singh and Firoz Ahmad, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged by the informant that on hulla of dacoit and hearing the sound of knocking of door by lathi then he understood that the dacoity is being committed and they 2 proceeded making hulla and went to the house of Mohan Lal Das where the dacoity was committed and saw Mohan Lal Das is injured, but, none disclosed the name of miscreants though several people collected there. On the statement of Jagdish Ram, Chowkidar, the first information report was lodged and after investigation the charge sheet was submitted and cognizance taken. 4. However, during the trial nine witnesses were examined and after considering the oral and documentary evidence as well as the evidence adduced on behalf of the appellants three witnesses and some documents accused and on considering the oral and documentary evidence the judgment of conviction passed. 5. The learned counsel for the appellants submitted that the occurrence of 24.10.1986 at about 10.00 p.m., but, the first information report has been lodged on 25.12.1986 at 04.00 p.m. and, hence, there is delay. It has, further, been contended that no name of any of the appellants has been mentioned in the fardbeyan and no Test Identification Parade conducted during the investigation and the accused persons have been named by the witnesses in Court claiming their identification by torch and lantern light. However, it is alleged that the torch was shown to the investigating officer, but, the investigating officer has not been examined, which cause serious prejudice. However, with regard to the identification P.Ws. 1, 2 and 3 say that the witnesses disclosed about the identification of the appellants. P.W. 4 stated that she identified Wasiuddin from his voice. However, she has not stated that what act was committed by 3 Wasiuddin. P.W. 5, Sogri Devi, has stated that the accused persons were pressing the iron sheet by lathi and tried to open the door. However, she has not stated whether she disclosed the police about the identity and she has not stated that what act of commission and omission was being done by this appellant when she identified during the dacoity. P.W. 6, Kishto Mohan Das though also stated that he identified Md. Quamrul Haque during the dacoity and, further, stated that he identified him in the torch light. However, the identification is torch light, but, he also has not stated that when he identified Md. Quamrul Haque what act was being done by him during the dacoity, i.e., no act of commission and omission has been stated against Md. Quamrul Haque by this witness. P.W. 7, Jagdish Roy, Chowkidar, is the informant though this witness is the informant, he has not stated in his fardbeyan that the witnesses disclosed about the identity of the accused persons. P.W. 8, Mohan Lal Das, also claimed to have identified the accused persons. Further, he claims to identify Wasiuddin, Raisuddin and Kamrul in the light of lantern, but, he also not stated that what act was being performed by them. Further, the investigating officer has also not been examined. 6. Hence, taking into consideration the entire evidence since the name of the appellants do not find place in the first information report rather it has been specifically stated that none suggested the name of the appellants and there is a very detailed statement about the occurrence and at the time of occurrence of after the occurrence several persons of the village collected at the door of 4 Mohan Lal Das, but, none disclosed the name of any of the dacoits. The witnesses are naming the appellants for the first time in the Court. Neither any Test Identification Parade conducted and, further, the witnesses claimed to have identified the appellants in Court, but, none has stated about the act of omission and commission by those dacoits at the time of dacoity when they identified the appellants. Further, it is pertinent to mention that witnesses are family members and no independent witnesses of the village have come to support the prosecution case. 7. Hence, under the facts and circumstances, as stated above, no reliance can be placed relating to the identification of the appellants. However, the investigating officer has not find any act of dacoity, hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt, hence, the order of conviction and sentence is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court The 2nd day of August 2011, N.A.F.R., S.A.