Criminal Appeal (SJ) No.275 of 1999 **** Against the judgment, dated 23.08.1999, passed by Shri R.V. Ram, Additional Sessions Judge, Supaul, in S. Tr. No. 95 of 1992 **** Kinu Yadav, son of late Fudai Yadav, resident of village Manganj Got, P.S. Jadia, district Supaul .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. Chandra Bhushan Das, Adv. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted for offence 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, Shiv Shanker Yadav, that in between the night of 30th June and 01st July, 1981, at 11.30 p.m. while he was sleeping at is darwaza then 8- 10 persons came and started assaulting him and after assaulting his father, closed him in a room and was asking about the articles and 2 about 15-20 dacoits entered into the house as well as in the house of next door neighbour, Dulari Yadav. The accused persons were asking to assault and fire and then it is alleged that he any how managed to escape and, thereafter, the dacoits fired causing injury on his chest. He has, further, claimed that he identified the accused in the light of torch as Kinu Yadav, Fani Yadav, Sitaram Yadav, Shiv Bachan Yadav, Chandeshwari Yadav and Shivjee Yadav. It is, further, alleged that the motive for the occurrence is that two months prior to the occurrence he has taken the sale deed from one Pano Devi and Kinu Yadav has threatened and for that he has also filed a sanha and has given the description of the articles, which has been looted away. 4. On the fardbeyan, the first information report lodged and after investigation the charge sheet submitted against Kinu Yadav, Sitaram Yadav and Suresh Yadav. 5. However, during the trial, seven witnesses have been examined out of whom P.Ws. 1 and 2 have identified the appellant. P.Ws. 3, 4 and 6 have stated that they did not identify the accused persons. P.W. 5, however, claimed to have identified Kinu Yadav, but, has subsequently stated that when the dacoits fled away he went there and learnt that the accused persons came and looted articles. 6. The defence of the accused person is that he is co- villager and relative of the informant and has falsely been implicated due to land disputed between the parties. However, in this case though the informant claimed to have been injured by the fire arm, neither the doctor nor the investigating officer of the case has been 3 examined. 7. The trial Court, however, convicted the appellant taking into consideration the evidence of P.Ws. 1 and 2. 8. The learned counsel for the appellant, however, contends that the sole appellant is non-else than relative and co- villager and there is land dispute between the parties and the injury though alleged to have been sustained has not been proved by the doctor nor the investigating officer has been examined in the case. 9. I proceed to consider the evidence in the light of submissions. From the prosecution case it appears that 8-10 persons came, assaulted his father and also captured over him and assaulted him, thereafter, he anyhow managed to flee away. He has also stated the motive of the occurrence as the land dispute with Kinu Yadav and has stated that Kinu used to threaten. 10. From the evidence of P.Ws. 1 and 2, it is apparent that the appellant, Kinu Yadav, is the uncle of P.W. 1 and grandfather of P.W. 2. Further, P.W. 1 has admitted that there was land dispute between the parties and has stated that one Dayalu had two sons, Anju and Bikhu. The accused person is descendant of Anju and the informant is descendant of Bikhu. He has admitted that prior to this case there was other cases between the informant and the accused, Kinu Yadav. He has, further, stated that at the time of occurrence there was no light and the night was dark and the informant was sleeping. He got up on the assault by lathi and 3-4 persons were assaulting him and he got 2-3 lathi blows. He claims to have 4 identified the appellant in the light of the torch and has stated that he fled away towards the east. However, having regard to the facts and circumstances at the time of occurrence he was sleeping and got up on the assault of 2-3 lathi blows and then he flee away towards east. However, in such circumstances, the possibility of seeing and identifying the appellant appears to be very remote. He himself in his evidence has stated that the night was dark and there was no light though he has stated that he showed the torch to the daroga, but, daroga has not seized it and on seeing the torch daroga returned it. The means of identification also not established. He has, further, stated that daroga has not recorded his, further, statement. Further, neither daroga nor the doctor has been examined though the investigation claimed to have received fire arm injury, but, the said has not been proved. 11. P.W. 2 is Anirudh Yadav. He also has stated in his evidence that the accused persons tied his hand and got him seated. He also claimed to have identified the appellant during the dacoity. He has stated that the informant is his uncle and Kinu Yadav is his grandfather, however, in his cross examination he has stated that he dies not know whether there is any land dispute with the accused person. He is 42 years old, but, from his evidence it appears that he stands to conceal the land dispute though P.Ws. 1 and 2 claimed to have identified Kinu Yadav, but, in their statement they have not stated that at the time of dacoity when they identified Kinu Yadav what act of commission was being done by him, hence, having regard 5 to the facts and circumstances, since, there is prior enmity and land dispute between the parties and opportunity of identifying the appellant in the facts and circumstances of the case, as discussed above, there is very remote chance of identification. The investigating officer has not come to depose in the case and though he has stated that several persons of the village came on hulla at the time of dacoity, but, none has come to support the prosecution case nor there is any independent witnesses regarding the identification of the appellant and, hence, under the facts and circumstances the appellant is entitled the benefit of doubt. 12. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts. The order of conviction and sentence, recording by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 23rd day of December, 2011, N.A.F.R., S.A.