Criminal Appeal (SJ) No. 40 OF 1996 Against the judgment and order dated 20.01.1996 passed by Sri H.B. Prasad Sinha, 1st Additional Sessions Judge, Buxar in S.Tr. No. 31 of 1995. ************ 1. Butan Yadav, S/o Moti Yadav, resident of Village Mathila Bhola ke Dera P.S.-Koran Sarai, District-Buxar. 2. Dadhi Yadav, S/o Bishram Yadav of Village Mungaon, P.S.-Koran Sarai, District-Buxar. 3. Ramu Yadav. 4. Ramesh Yadav. Both sons of Kashi Nath Yadav resident of Village-Mungaon Ka Dera, P.S.-Koran Sarai, District-Buxar. ……(Appellant) Versus THE STATE OF BIHAR-------(Opposite Party) ************* For the Appellants: Mr. S.N. Prasad, Adv. For the Informant : Mr. Yogesh Chandra Verma, Sr. Adv. : Dr. Vidya Nand Kumar, Adv. For the State : Dr. Indiwar Kumari, 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 Section 395 IPC and sentenced to RI for seven years by the 1st Additional Sessions Judge, Buxar in S.Tr. No. 31 of 1995 by a judgment dated 20.01.1996. 2. The case of the prosecution according to P.W. 6, Hira Lal Singh is that a dacoity was committed in his house in the night of 28.08.1994 where the appellants had been identified by his family members. 3. During trial the prosecution in all examined eight witnesses out of whom P.W. 1, P.W. 3 and P.W. 4 are the sons of P.W 6 whereas P.W. 7 is the 2 daughter of P.W. 4 and P.W. 2 is the grand son of the informant. P.W. 5 is the uncle of P.W. 1 and P.W. 8 is the Investigating Officer. 4. P.W. 1 during his evidence did not identify any of the appellants except appellant No. 1, Butan Yadav. He admitted that there was 107 Cr.P.C. proceeding pending between the family of the appellant Nos. 3 and 4 and their family. P.W. 2 is said to have identified appellant Nos. 2, 3 and 4 and has conceded that the appellant Nos. 3 and 4 were well known to him. P.W. 3 also a son of the informant allegedly identified the appellant Nos. 3 and 4 but admitted the factum of 107 Cr.P.C. proceeding between his family and that of the appellant Nos. 3 and 4. P.W. 4 also a son of the informant allegedly identified the appellant Nos. 1, 3 and 4 and admitted that the house of the appellant Nos. 3 and 4 was close to his own house and there was 107 Cr.P.C. proceeding pending between the parties. P.W. 5 did not identify any of the appellants in the dock. P.W. 6 is the informant who is said to have identified all the appellants by force but not appellant No. 1 who is said to have been identified by voice. He conceded about the proceeding under Section 107 Cr.P.C. between his family and that of the appellant Nos. 3 and 4. P.W. 7 did not name any of the accused persons. P.W. 8, the Investigating Officer stated that the P.W. 4 had not taken 3 the names of appellant Nos. 3 and 4 before him and he had also asserted about 107 Cr.P.C. pending between the parties. 5. On going through the evidence on record, I do not find any justification to sustain the conviction of the appellants since it is an admitted position that appellant Nos. 3 and 4 were on litigating terms with informant’s family and appellant Nos. 1 and 2 were well known to them and it did not stand to reason that they would commit dacoity without concealing their identity. 6. In the result, the appeal is allowed and the judgment dated 20.01.1996 passed by the 1st Additional Sessions Judge, Buxar in S.Tr. No. 31 of 1995 is, hereby, set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 28th June, 2011. NAFR/Vikash/-