Shiv Narayan Das, Niwaran Das @ Lalua, Rohin Choudhary and Dhiren Das @ Dhirendra Prasad Das vs The State of Bihar

Anjana Prakash, J.—The Appellants have been convicted u/s 395 I.P.C. and sentenced to rigorous imprisonment 7 years by the judgment dated 29.3.1995 passed in Sessions Trial No. 109 of 1989 by the learned 2nd Additional District and Sessions Judge, Katihar.

The prosecution case according to P.W. 7 is that a dacoity was committed in his house on the night of 15.2.1988 in which he had allegedly identified some persons including the Appellants.

During trial prosecution examined 7 witnesses out of whom P.W. 1 is formal, P.W. 6 has been tendered, P.W. 2, 3, 4, and 5 are on the factum of occurrence whereas P.W. 7 is the informant who is the sole identifying witness. The Investigating Officer has not been examined.

On going through the evidence of P.W. 7, I find that he had conceded that the dacoits had covered their faces and he had identified the present Appellants by the gesture and posture. This alone is sufficient to set aside the conviction of the Appellants.

In the result, the appeal is allowed and the order of conviction and sentence passed against the Appellants by the learned 2nd Additional District and Sessions Judge, Katihar in Sessions Trial No. 109 of 1989 by the judgment dated 29.3.1995 are hereby set aside and they are acquitted of their respective charges. The Appellants are discharged from the liabilities of their respective bail bonds.