Criminal Appeal (SJ) No.193 OF 1995 (Appeal against the Judgment and Order dated 21.8.1995 passed by the 3rd Additional Sessions Judge, Kaimur at Bhabhua, in Sessions Trial No. 6/4 of 1994.) 1. BHOLA MUSHAR, SON OF SHIVMANGAL MUSHAR 2. CHITTU MUSHAR SON OF KISHUN MUSHAR 3. PALTU MUSHAR SON OF MAHAVIR MUSHAR 4. SHANKAR MUSHAR SON OF GARIB MUSHAR 5. SHIV NARYAN MUSHAR SON OF GARIB MUSHAR. APPELLANT NO. 1 RESIDENT OF VILLAGE JAGDISHPUR, P.S. KOCHAS, DISTT. ROHTAS AND APPELLANTS NO. 2 TO 5 RESIDENTS OF VILLAGE KASER, P.S. BHAGWANPUR, DISTT. ROHTAS. ----- APPELLANTS. Versus THE STATE OF BIHAR ------RESPONDENT For the Appellants : Mr. Arush Kumar, Advocate. For the State : Mr. B. Roy Raman, Advocate. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard The Appellants have been convicted under Sections 395 and 397 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years under both counts by a Judgment dated 21.8.1995 passed by 3rd Additional Sessions Judge, Kaimur at Bhabua, in Sessions Trial No. 6/4 of 1994. The case of the prosecution is that on the night between 17/18.7.1993 a dacoity was committed in the house of the Informant in which the Appellants were identified. During trial, the prosecution examined ten witnesses 2 out of whom PW-1 is the father of the Informant and hearsay on the point of identification of Appellant Nos. 1 and 2. PW-2 is the son of the Informant and he is alleged to have identified the Appellant No. 3. PW-3 is the sister of the Informant. She is said to have identified the Appellant Nos. 1 and 5. PW-5 is the witness who is said to have identified the Appellant Nos. 1 and 2. PW-10 is the Doctor who examined the injured whereas PW- 6 is hostile witness. PW-4 is on the point of arrest of the Appellants right after the occurrence from the village and that he had heard that the Appellants had committed this occurrence. It is an admitted position that previous to this occurrence the Appellants No. 4 and 5 were in fact had assaulted one Mushar which was prevented by the Informant and, thereafter this occurrence had taken place. It evidently means that the Appellants No. 4 and 5 were well known to the family members of the Informant. Similarly, the Appellants No. 1 2, and 3 were also well known to the Informant and admittedly used to work as labourers for the Informant. In this background, it is difficult to accept that the Appellants would have dared to commit dacoity in the house of the Informant without concealing their identity. On this score alone, the prosecution case is fit to be set aside. In the result, the Appeal is allowed. The order of 3 conviction and sentence passed against the Appellants in Sessions Trial No. 6/4 of 1994 by the 3rd Additional Sessions Judge, Kaimur at Bhabua, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated the 22nd April, 2011. NAFR/S.ALI ( Anjana Prakash, J.)