Criminal Appeal (SJ) No.1008 of 2006 Against the judgment of conviction dated 20.10.2006 and order of sentence dated 31.10.2006 passed by Additional Sessions Judge, Fast Track Court No.IV, Sheikhpura in Sessions Trial No.856 of 2005, Trial No.19 of 2006 arising out of Halsi(Karendey)P.S.Case No.54 of 1991. BIJAY SINGH.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant : Sri Ram Naresh Singh For the Respondent : Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J This appeal has been preferred by the solitary appellant against the judgment of conviction dated 20.10.2006 passed by Fast Track Court-IV, Sheikhpura in Sessions Trial No.856 of 2005 by which the solitary appellant was found guilty of committing offence under Section 395 IPC and was directed to suffer rigorous imprisonment for seven years. 2. This appeal was initially preferred from jail and was received in the office of this Court through letter no.797 dated 25.11.2006 of the In-charge, Superintendent, Sub Jail, Sheikhpura. Subsequently, the appellant filed 2 powers and this is how the appeal has been heard today. 3. The commission of dacoity has not been disputed. The question which has been raised in the present appeal is regarding the value of the evidence of identification of the appellant by P.Ws.7 and 5. It was contended that at the very strength of the findings recorded by the court below in paragraph-16 of its judgment it could be not be a case for convicting the appellant for the offence under which he was sentenced. 4. On perusal of the findings recorded in paragraph-16 by the learned trial Judge what is found is that the two witnesses who had identified the present appellant, namely, P.Ws.5 and 7 were quite acquainted since twenty years or more that that with the appellant who was the resident of a neighbouring village. But in spite of this admission by the two witnesses, the learned trial Judge has recorded “I do not find any reason to disbelieve the witnesses who has deposed before the court”. 5. Criminal trials are decided on the principles of probabilities. The proof of a charge is also on probability so is the case 3 with the defence version. The difference is that the probability has to exclude the innocence of an accused and by all probability should point out that it could be the act of the accused and none else that the offence had been committed by him. When it comes to the turn of the defence what the defence has to do is to succeed in showing the tilt of probability in favour of its version and thereby shake the foundation of the prosecution case and get acquittal. Two witnesses P.Ws.5 and 7 were known undisputedly to the accused and the accused was also known to them. There could be a statable probability that on account of long acquaintance of over twenty years, if the appellant had been present in the band of dacoits for committing the dacoity, then his identity must have been picked up at the time of very commission of dacoity and his name would have figured as identified dacoit in the FIR. But, the appellant was not named. Subsequently, he was identified and that identification evidence appears tainted on account of long acquaintance and probability might be about his false implication due to any reason. 6. On the above reason, I find merit in 4 the appeal and, accordingly, allow it by setting aside the order of conviction and sentence passed against the appellant Bijay Singh. If the appellant continues to be in custody, he shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 1st day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)