Criminal Appeal (SJ) No.144 of 1999 Against the judgment and order of conviction dated 31. 05. 1999 and order of sentence dated 02. 06. 1999, passed by Sri Yogendra Prasad, 1st Additional Sessions Judge, Gaya, passed in Sessions Trial No. 85 of 1999(A.D.J.I)/54 of 1996 (A.D.J.VI)/502 of 1985(S.J) 1. Jamal Mian, son of Late Rahmat Ali Mian Resident of Mauza Mangia, P.S. Dumaria in the district of Gaya. 2. Nayeemuddin alias Gora, son of Late Subedar Mian Resident of Village- Panchrukhi, P.S. Dumaria in the district of Gaya. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Shakil Ahmad Khan, Senior Advocate. Mr. Shailendra Kumar, Advocate. For the Respondent State : Mr. Suresh Pd. Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 395 I.P.C. and sentenced to undergo rigorous imprisonment for nine years. 3. The prosecution case as alleged that on 28. 01. 1981 while the informant taking his meal at about 10 P.M. his son saw several people coming then he closed the door and made alarm. The dacoits managed to enter into the courtyard, but on hulla the villagers came and there was 2 firing and explosion of bomb then they start fleeing away and villagers disclosed that they have identified some of the dacoits and on the next day it was found that one of the bag containing old register containing accounts has been taken by the dacoits. 4. On the basis of the statement of Md. Mohiuddin, the informant on 09. 02. 1981 with regard to the occurrence dated 28. 01.1981, F.I.R. was lodged and investigation proceeded. However, during investigation, five suspects were said to have been arrested and put on T.I. Parade and police after investigation submitted charge sheet. After submission of the charge sheet, cognizance was taken and case committed to the Court of Sessions. 5. However, during trial five witnesses were examined namely, P.W. 1, Md. Usman Mian, P.W. 2 Md. Sharifuddin, P.W.3, Md. Yunus, P.W. 4 Samsuddin Mian and P.W. 5 Md. Mohiuddin, the informant. The I.O. and the Judicial Magistrate who conducted T.I. Parade however have not been examined in this case, though, T.I. chart has been marked as Exhibit under Section 294 Cr.P.C. 6. The trial court taking into consideration the 3 evidence of the witnesses as also taking into consideration the fact that T.I. Chart mentioned about identification of the dacoits and further taking into consideration the evidence of P.W. 2 Md. Sharifuddin , P.W. 3 Md. Yunus and P.W. 4 and 5 have identified the appellants in court as well as in T.I. Parade hence convicted the appellants as they have been identified by the witnesses with regard to the dacoity which was attempted and hence convicted the appellants for offence under Section 395 I.P.C. and sentenced to undergo rigorous imprisonment for nine years. 7. Learned counsel for the appellants however contends that occurrence is dated 28. 01. 1981, but the F.I.R. has been lodged on 09. 02. 1981, though, F.I.R. has been lodged against unknown. In the F.I.R. and its evidence, it is apparent that there is dispute with regard to allotment of P.D.S. shops between the parties and only article alleged to have been looted is a bag containing accounts of said P.D.S. shop. It is further contends that accused persons were known to the witnesses and hence identification in T.I. Parade and court has got no significance. It has further been contended that neither 4 means of identification has been established nor I.O. has been examined in this case to find out the objective evidence regarding dacoity and explosion of bomb or firing as alleged by prosecution by miscreants in dacoity having been established nor the Judicial Magistrate who conducted the T.I. Parade has been examined to establish the corroboration or conduct of T.I. Parade and hence prosecution has not been able to establish the charges and the appellants are entitle to benefit of doubt. 8. Learned counsel for the State however contends that accused persons have been convicted by the trial court and conviction recorded by the trial court can well be sustained. 9. Taking into consideration the respective submission, question for consideration whether prosecution has been able to prove the charges. However, taking into consideration the evidence of P.W. 1, he has come to support the prosecution case regarding dacoity. However, he has not claimed to have identified the dacoits nor participated in T.I. Parade. P.W. 2 has also come to support the prosecution case regarding the factum of the dacoity as well as claim to have identified the dacoits and 5 claim to have identified in the light of the torch as well as in the light of the explosion of bomb and has been identified the appellant Jamal Mian. However, in cross- examination, this witness in para 7 has admitted that appellant Jamal Mian is married with daughter of Israil who is co-villagers and has stated that Nayeemuddin has been married his daughter with the son of Israil. He has further stated that he has stated the names of the dacoits to the police but has not disclosed the names of the dacoits to the informant. However, occurrence took place on 28. 01. 1981 and F.I.R. was lodged on 09. 02. 1981, but this witness did not name the appellant either to the informant or any other persons and the evidence of this witness shows that appellants were known to him. Hence identification of this witness either in T.I. Parade or in dock lost its significance. Similarly P.W. 3 in his cross- examination has stated that Sultan Mian and Makbul Mian are full brothers who are cousin brother of ths father, though, he has stated that he did not know that Jamal Mian is brother-in-law of Sultan Mian. However he has accepted that Taiyab Mian has got quota shop since before he quoted the shop of the prosecution and Taiyab Mian is 6 brother-in-law of Jamal Mian and hence from the evidence of this witness it is apparent that Jamal Mian is well known since before the occurrence, but name of Jamal Mian was not mentioned in the First Information Report. Similarly, P.W. 4 has stated in his evidence he known Taiyab Mian and Jamal Mian is brother-in-law of Taiyab Mian and cousin sister has married with Gora alias Naimuddin and P.W. 4 is none else is father of P.W.2 and in his cross-examination he has stated that Taiyab MIan disclosed that he will teach him a lesson. He has also admitted tht there was dispute with regard to quota shop in between his son and Taiyab Mian and Taiyab Mian is son of Israil. However, he has further stated that he did not know whether Jamal Mian is son-in-law of Israil and it is suggested that he has been concealing this fact. However, in his cross-examination denied the suggestion that Ali, Kalu and are Bhagna, but he denied to say that he did not know whether marriage of the daughter of Ali has been solemnized and he is concealing the fact that Gora alias Naimuddin is his Bhagni Damad. However, he has denied that Gora alias Naimuddin has married with sister of Taiyab. However, P.W. 5 is father of P.W. 3 and P.W. 2 7 has admitted that Taiyab is brother-in-law of Jamal Mian. 10. Hence from the evidence of the witnesses it is apparent that there was dispute with regard to allotment of P.D.S. shop and main dispute with regard to said P.D.S. shop and accused persons were known to the informant, but name of the appellant has not been mentioned in the First Information Report and it is claimed that accused persons were identified by witnesses in the light of the bomb exploded by the dacoits as well as in torch light lit by dacoits. However, I.O. has not been examined in this case and objective finding about dacoity and explosion of bomb could not be brought in record nor means of identification has been proved and the identification in torch light by dacoits and in the light of explosion of bomb does not find probable to inspire confidence. Further it has been stated that T.I. chart has been exhibited under section 294 Cr.P.C. However, the Judicial Magistrate who conducted the T.I. Parade has not been examined to test whether T.I. Parade was conducted in accordance with law. However, having regard to the fact from the evidence of P.W.s it is apparent that appellant were known to the witnesses since before and hence identification in T.I. 8 Parade and in court lost its significance. 11. Having regard to the fact and circumstance, I find and hold that prosecution witnesses have not been able to establish the charge for offence under Section 395 of Penal Code beyond reasonable doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 12th December, 2011. NAFR/m.p. ( Gopal Prasad, J.)