Criminal Appeal (SJ) No.409 of 1998 ****** Against the judgment of conviction and order of sentence dated 20.11.1998 and 23.11.1998 respectively passed by Sri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani in Sessions Trial No. 98 of 1980. ****** 1. Maheshwar Paswan, Son of Late Raudi Paswan. 2. Tapeshwar Paswan, Son of Hazari Paswan. Both resident of Village – Bethaunha, Police Station – Jaynagar, District – Madhubani. 3. Panchu Mahto, Son of Late Faudi Mahto. Resident of village – Rampur, P.S. – Harlakhi, District – Madhubani. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Ajay Kumar Thakur, Advocate. Mrs. Babita Kumari, Advocate. For the Respondent : Mr. Shamaneshwaram, Advocate. ****** P R E S E N T 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 the offence under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged in the fardbeyan is that at about 1:00 A.M. in the mid night one Ramkishun Thakur made a Halla about the dacoit and the dacoit entered into the house and looted the articles 2 and when the villagers collected then the docoits fled away. 4. On the fardbeyan, the FIR was lodged and after investigation charge-sheet was submitted. However, during the investigation several accused were apprehended as suspect. However, all the appellants identified by the four witnesses in the Test Identification Parade and charge-sheet submitted and the cognizance taken and the case was committed to the court of Sessions. 5. During the trial fifteen witnesses were examined on behalf of the prosecution and four witnesses were examined on behalf of the defence. However, the oral and documentary evidence adduced by the parties, the order of conviction and sentence recorded as stated above. 6. Learned counsel for the appellants, however, contended that three appellants have been identified by the four witnesses but the appellant no. 1 and 2 are the co-villagers and a relative of Dhayani Mahto, who used to visit the village frequently and hence submitted that Test Identification Parade has no significance and further the appellants claimed to have been identified in the light of torch and no act of commission and omission has been stated while identifying the appellants nor the physical feature of the dacoits were stated by the witnesses either in the fardbeyan or during their statement before the police and hence identification is doubtful. 7. However, the prosecution case as alleged is that the dacoity 3 committed but in the First Information Report the name of the dacoit having find place nor there is mention about the physical feature of the dacoit in the fardbeyan. Out of the fifteen witnesses examined in the case only four material witnesses claim to have identified the accused only Test Identification Parade and the rest of P.Ws. 5 to 15 are only formal witness. 8. P.W. 1 has stated in his evidence that he identified the dacoit in the light of torch and he identified them in Test Identification Parade and also identified in court. However, the identification in the light of torch doubtful and further no act of commission and omission has been stated. However, this witness in paragraph 20 has stated that he asked whether he identified then he stated that he identified all the four but not stated and identified in special reference to act alleged at the time of dacoity. 9. P.W. 2 has also in his evidence stated that he identified the dacoit in the torch light and the troch belongs to the dacoits and he identified them in Test Identification Parade and also in the court. However, this witness P.W. 2 in his evidence has stated that he had litigation under Section 144 of the Cr.P.C. that Laxmi Thakur and accused Maheshwar Paswan is the full brother of Laxmi Paswan and hence it is apparent that the appellant Maheshwar Paswan is a co- villager and hence the identification in Test Identification Parade itself 4 lost its importance. 10. P.W. 3 has also stated that the dacoit lit the troch and he identified the dacoits in the light of the torch. However, she has also not stated that the act of commission and omission when she identified the dacoits. Hence, the identification in light of torch of dacoit itself cast a doubt on identification. 11. P.W. 4 Panchum Mahto assaulted him with Gaddi and another pointed that he was taking out article from Almirah and the rest two were standing near the door. 12. D.W. 2 is the son of the informant and he has stated in his evidence that he is the son of the informant and accused Maheshwar Paswan and Tapeshwar Paswan are know to them and the house of both in different Tola and they are on visiting terms with accused persons. Hence, having regard to the fact, the identification of the appellants are co-villagers, are admitted by the son of the informant hence, their identification in T.I.P. lost its importance. 13. D.W. 1 has stated in his evidence that appellant no. 3 Panchu Mahato and Laxmi Mahto is the relative of Dhani Mahto and is in visiting terms and hence having regard to the fact that the appellant nos. 1 and 2 are co-villagers and in visiting term with the son of the informant and hence the identification in Test Identification Parade lost its significance and however non mentioning of the name of these 5 appellants in the First Information Report is fatal to the prosecution if they were known to them nor the physical feature of the accused has been mentioned in the fardbeyan nor the witnesses has stated the physical feature of the accused in their statement before the police and hence having regard to the facts and circumstances since the appellant no. 1 and appellant nos. 2 and 3 are the co-villagers and the identification in torch light also is a big piece of evidence to be relied, particularly, when it is alleged that it was the torch light with the Farsa with dacoits and further no act of commission and omission has been stated by P.Ws. 2, 3 and 4 while they identified by the prosecution hence the prosecution has not been able to prove the identification of the appellants beyond reasonable doubt and hence the appellants are entitled for the benefit of doubt and I give the appellants to benefit of doubt and hence, the order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 2nd August, 2011. N.A.F.R./Kundan.