Criminal Appeal (SJ) No. 103 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Chandar Mandal @ Chandra Deo Mandal, S/o Lakhan Mandal. 2. Vakil Mandal, S/o Late Shiv Mandal. Both R/o Village-Malpur Diara, Police Station- Gopalpur, District-Bhagalpur. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants: Mr. Amarendra Pd. Sinha, Adv. For the State : Mr. C. Jawahar, 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 2nd Additional Sessions Judge, Katihar in Sessions Case No. 293/92/260/1996 by a judgment dated 14.05.1996. 2. The prosecution case is that a dacoity took place in the house of the informant between the night of 19/20.07.1992 in which the appellants were identified as one of the miscreants. Initially the appellants were charged under Section 396 IPC but they were acquitted of the charges and convicted only under Section 395 IPC. 3. The prosecution in all examined twelve witnesses out of whom P.W. 8 is the informant whereas P.W. 5 is the mother of the informant. P.W. 3 is the 2 uncle of the informant. P.W. 1 is the cousin of the informant. P.W. 2, P.W. 4, P.W. 7 are co-villagers of the informant. P.W. 9 is the Doctor who conducted the post- mortem of the dead body of father and grand-father of the first informant and P.W. 6 is said to be the Doctor who examined the injuries of the informant. P.W. 10, P.W. 11 and P.W. 12 are formal witnesses. 4. On going through the analysis of the evidence, I find that the Investigating Officer has not been examined on behalf of the prosecution. P.W. 1 was not an eye-witness whereas P.W. 2 is said to have identified the appellants while fleeing away. P.W. 3 conceded that it was a dark night and there was no source of light and the accused persons had covered their faces nor did he disclose the names of any of the accused persons to the villagers who came after the occurrence. P.W. 5 and P.W. 8 have substantially developed their case with regard to factum of the murder of the deceased. P.W. 4 has not been named in the First Information Report nor had he stated about any identification before the Police. Similarly P.W. 7 is also not named in the First Information Report nor did he identify any of the miscreants. 5. On going through the evidence of the material witnesses, I find that many contradictions have been elicited during cross-examination but the 3 contradictions could not be substantiated in absence of the Investigating Officer who was suppressed by the prosecution. 6. In the result, the appeal is allowed and the judgment dated 14.05.1996 passed by the 2nd Additional Sessions Judge, Katihar in Sessions Case No. 293/92/260/1996 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 12th May, 2011. NAFR/Vikash/-