Criminal Appeal (SJ) No.237 of 1997 Against the judgment and order of sentence dated 20. 08. 1997 Passed by Sri Subhash Kumar Singh, Additional District & Sessions Judge X, Sasaram, Rohtas in Sessions Trial No. 304 of 1988. Satya Narayan Dubey @ Krishna Murari Dubey, son of Late Banke Bihari Dubey, resident of Village-Dhangai, Police Station-Bikramganj, District-Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 239 of 1997 Against the judgment and order of sentence dated 20. 08. 1997 Passed by Sri Subhash Kumar Singh, Additional District & Sessions Judge X, Sasaram, Rohtas in Sessions Trial No. 304 of 1988. Krishna Singh, son of Jawahar Koiri, resident of Village- Dhangai, P.S. Bikramganj, District- Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. = (In CR. APP (SJ) No. 237 of 1997) For the Appellant/s : Mr. Subhash Chandra Dubey, Advocate. Mr. Umesh Narayan Dubey, Advocate. For the Respondent/s Mr. Parmeshwar Mehta, A.P.P. (In CR. APP (SJ) No. 239 of 1997) For the Appellant. : Mr. Ranbir Singh, Amicus Curiae. For the Respondent. : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant in Cr. Appeal No. 237 of 1997 and learned Amicus Curiae in Cr. Appeal No. 239 of 1997 and learned counsel for the State. 2 2. Both the appeals are being heard together and disposed of by common order and judgment as both the appeals arise out of same Sessions Trial No. 304 of 1988 passed by Shri Subhash Kumar Singh, Additional Sessions Judge, Rohtas, Sasaram. 3. The occurrence is of the year 1978. However, in the F.I.R. there is allegation themselves. The dacoits came and close the informant in a room and looted the articles. 4. However, only two accused persons have been named in the F.I.R. Krishna Koiri and Satyna Narayan Dubey who are co-villagers and it is alleged that on seeing the informant they concealed dacoits. However, on the basis of the statement of the informant, F.I.R. was lodged and after investigation charge sheet submitted. 5. However, during trial, nine witnesses have been examined, but the I.O., has not been examined in this case. On considering the evidence, order of conviction and sentence has been recorded in which two appellants have been convicted under Section 395 I.P.C. and sentenced to under rigorous imprisonment for five years. 6. Nine witnesses have been examined in this 3 case and it is only the informant who claimed to have identified the appellants in the F.I.R. which is Ext. 1. He has also stated that he identified Satya Narayan Dubey Krishna Koiri who concealed themselves. However, except the informant, none have identified the accused persons. Nine witnesses have been examined who are family members, but none have identified the appellants except the informant and no independent witness in the vicinity have come to depose or support the factum of dacoity. In this case I.O. has also not been examined and hence objective evidence on dacoity has also been not established. 7. Having regard to the facts and circumstances, since there is only one witness who have identified and it is only the informant who has named the appellants and no specific overt act has been alleged. 8. P.W. 1 has stated that he identified Krishna Koiri and Satyna Narain Dubey, but not mentioned as to what act of commission or omission was being done by them. 9. However, this witness, P.W. 1 has stated 3-4 persons catch hold him on pointed pistol and when he 4 asked them what they want then they disclosed that they want to loot the articles then closed the informant in a room along with inmates of house then they looted the articles. However, in the circumstances, he claimed to identified Satya Narain Dubey and Krishna Koiri where none other family members identified. 10. Hence having regard to the circumstances this is a case of single identification and appellants, though, co-villager have not been identified by any of the family member depose in this case even no independent villager or neighbour came to support the factum of dacoity and even they do not examine in this case and hence the prosecution case about dacoity and the identification of the appellants by informant cast serious doubt about the accused identification of the appellants. Hence I find and hold that prosecution has not been able to establish charges and hence order of conviction and sentence recorded by court below is not sustainable. Hence order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. Patna High Court, The 15th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)