Patna High Court
HANS LAL RAIversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction under Section 395 IPC was set aside and the appellant was acquitted.
Summary
The appellant Hans Lal Rai was convicted under Section 395 IPC for a dacoity that allegedly occurred in 1994, based primarily on the testimony of the informant (PW‑3) who identified him in court but not during investigation. The appellant challenged the conviction, arguing that the two other eyewitnesses (PW‑1 and PW‑2) could not identify any accused and that PW‑3’s evidence was inconsistent, unsupported by any corroborative material, and that the investigating officer was not examined. The High Court held that identification of the accused was not satisfactorily proved, the sole testimony of PW‑3 was unreliable, and the non‑examination of the investigating officer did not, by itself, vitiate the prosecution case. Consequently, the conviction was set aside and the appellant was acquitted of all charges.
Issues considered
- The adequacy of identification of the accused for conviction under Section 395 IPC
- Whether a conviction can rest on the sole testimony of an informant with inconsistencies
- Effect of non‑examination of the investigating officer on the prosecution case
- Whether acquittal of co‑accused mandates acquittal of the appellant
Legislation cited
- Code of Criminal Procedure — s. 313, 374(2), 389(1)
- Indian Penal Code — s. 390, 391, 392, 395, 396, 397
Subjects
- dacoity
- robbery
- Section 395 IPC
- identification of accused
- eyewitness testimony
- investigating officer non‑examination
- criminal appeal
- acquittal
- burden of proof
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.168 of 2012
Arising Out of PS. Case No.-25 Year-1994 Thana- MOTIPUR District- Muzaffarpur
======================================================
HANS LAL RAI S/O Late Mulahi Rai R/O Vill-Morsandi, P.S. Motipur,
Distt-Muzaffarpur ... ... Appellant/s
Versus
THE STATE OF BIHAR ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Bhavesh Kumar, Advocate
For the Respondent/s : Mr.S.N.Prasad, App
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 05-05-2026
Heard learned counsel appearing on behalf of the
appellant and, learned APP for the State.
2. The present appeal has been filed under Section 374
(2) and 389(1) of the Code of Criminal Procedure challenging
the judgment of conviction dated 15.02.2012 and order of
sentence dated 18.02.2012 passed by the learned 3 rd Addl.
Sessions Judge, Muzaffarpur in Sessions Trial No.139/2000
arising out of Motipur P.S. Case No. 25/94 whereby and
whereunder the appellant has been convicted for the offence
punishable under Section 395 of the Indian Penal Code and has
been sentenced to undergo Rigorous Imprisonment for 10 years.
BRIEF FACTS OF THE CASE
3. As per the allegation made in the FIR, the informant,
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Ram Ashray Rai of village Meghua, P.S. Motipur, District
Muzaffarpur, recorded his fardebyan before Sub-Inspector of
Police Sri R.N. Tiwary on 15.03.1994 at about 9:00 P.M. at the
informant’s house, stating therein that on the same day at about
7:00 P.M., while the informant was watching television in his
room with open door about, 6-7 dacoits and 50 unknown
variously armed with guns, pistols, lathis and pharsas suddenly
entered into his house and forcibly demanded the licensed gun
of the informant and, upon his resistance assaulted him with
lathis. Out of fear, the informant disclosed that the gun was kept
in the upstairs room, whereupon 2-3 dacoits went to the upper
floor and took away the gun, while the other accused persons,
had confined the informant. During the occurrence, the
informant also heard the sounds of firing and bomb explosions
outside his house. Further case is that the dacoits had also
demanded cash and jewellery, which they looted after breaking
the lock of the jewellery box. The accused also looted clothes
and other articles. It has been alleged that about 40-50 other
dacoits had entered the house and were committing loot in
different rooms. According to the informant, some dacoits had
covered faces to whom he could not identify, however, the
accused persons, namely Hans Lal Rai (appellant), Kailash Rai,
Nandan Rai, Ram Chandra Rai and Lalos Rai, were identified
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by him in the light of the lantern and by their voices and their
face being not covered. It is further alleged that due to firing
and bomb explosions caused by the dacoits, the cattle shed
(bathan) of the informant was burnt to ashes. On alarm being
raised by the villagers, the dacoits fled away towards the west-
north direction. The occurrence allegedly continued for about
15-20 minutes. On the basis of information, a case of
dacoity/loot of gold ornaments, clothes, utensils and other
household articles, worth several thousand rupees, including a
licensed gun standing in the name of his brother Ramdeo Rai
and had assaulted the son of the informant during the
occurrence.
4. On the basis of the statement of the informant, the
F.I.R being Motipur P.S. Case No. 25/94 was registered for the
offences under sections 395/397 of the Indian Penal Code. After
institution of the FIR, the police proceeded with the
investigation and after completion of investigation, charge-sheet
was submitted. Thereafter, the trial court took cognizance
against the appellants and the case was committed to the Court
of Sessions for trial.
ARGUMENT ON BEHALF OF THE APPELLANT
5. Learned counsel appearing on behalf of the
appellant submitted that the impugned judgment of conviction
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and order of sentence passed by the learned Trial Court is
wholly unsustainable in the eyes of law, as the conviction of the
appellant is based solely upon single identification of the
informant/PW3. The FIR has been lodged against 50 accused
persons, out of whom, the informant has identified only four
persons, including the present appellant. It has been submitted
that P.W.1 and P.W.2, who are own brothers of the informant
and the eyewitnesses to the occurrence, have categorically
stated in their deposition that they could not identify any of the
accused persons during the alleged occurrence. He submitted
that the appellant has falsely been implicated due to village
politics. Learned counsel further submitted that there are
contradictions between the fardbeyan and the deposition of
P.W.3., the informant, who in his fardbeyan, has claimed that he
had identified several accused persons in lantern light by their
voices, including Ram Chandra Rai and others, whereas during
trial, he failed to identify the co-accused persons present in
Court and identified only the appellant. It has thus been urged
on behalf of the appellant that the material contradictions and
improvements render the evidence of P.W.3 wholly unreliable
and unsafe to convict the appellant on such testimony.
6. Learned counsel further submitted that except the
testimony of P.W.3, no corroborative evidence has been brought
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on record to connect the appellant with the alleged occurrence.
No independent witness has been examined by the prosecution
though the alleged occurrence took place in a village locality
where independent witnesses were naturally available. It has
further been contended that neither the Investigating Officer nor
the doctor has been examined in the present case, which has
caused serious prejudice to the defence. Due to non-examination
of the Investigating Officer, the defence was deprived of
proving contradictions and omissions in the statements of
prosecution witnesses recorded during investigation and could
not effectively challenge the manner of investigation. It has also
been submitted that no incriminating article was recovered from
the possession of the appellant and even the FIR has not been
formally exhibited by the prosecution. Learned counsel
submitted that the prosecution has miserably failed to prove the
charge against the appellant beyond all reasonable doubts and as
such the appellant is entitled to the benefit of doubt and
deserves to be acquitted. He further contended that the other
accused persons against whom similar allegations have been
levelled, have already been acquitted by the impugned
judgment.
ARGUMENT ON BEHALF OF THE STATE
7. Per Contra, learned APP appearing for the State
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while opposing the appeal submitted that the learned District
court, after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences.
ANALYSIS AND CONCLUSION
8. Heard the parties.
9. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
10. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment of conviction dated 15.02.2012 and order of sentence
dated 18.02.2012 for the offences under Section 395 IPC.
11. During the trial, the prosecution has examined
altogether 3 witnesses, namely:
(i) (P.W.-1),- Ram Deo Rai ( brother of the informant)
(ii) (P.W.-2),- Ramautar Rai (brother of the informant)
(iii) (P.W.-3),- Ramashray Rai
12. The prosecution has also relied upon following
document exhibited during the course of trial:-
(i) Signature of S.I. of Motipur P.S. (Exhibit-1),
(ii) Fardbeyan of (Exhibit-1/1),
(iii) Signature of witness (Exhibit-3)
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13. Upon a meticulous examination of the record, the
evidence of the prosecution witnesses (PWs) can be
summarised as follows:
I. P.W.1 Ram Deo Rai, the elder brother of the
informant, supported the occurrence of dacoity alleged to have
taken place on 15th March, 1994 at about 7:00 P.M. He deposed
that 25–30 unknown persons, armed with weapons, committed
dacoity and looted household articles, including his licensed
gun. However, in cross-examination, he categorically stated that
he did not identify any of the accused persons and further
asserted that the accused present in court were not participants
in the occurrence. He also stated that his statement was not
recorded by the police.
II. P.W.2 Ram Autar Rai, the younger brother of the
informant, also supported the occurrence in general terms,
stating that 30–35 unknown persons, armed with guns and
lathis, committed dacoity. However, he too failed to identify any
of the accused persons and clearly stated that the accused
persons present in court, namely Lal Babu Rai, Ram Chandra
Rai, and Harendra Thakur, were not involved in the occurrence.
He further stated that his statement was not recorded by the
Investigating Officer.
III. P.W.3 Ramashray Rai, the informant, supported the
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occurrence and his fard-beyan. He deposed that 6–7 armed
persons entered his house, took his licensed gun, and looted
cash and jewellery. He further stated that about 25–30 persons
were involved in the occurrence. Though he claimed to identify
certain accused persons, his testimony reveals inconsistency, as
he identified only accused Hans Lal Rai/appellant among those
present in court and failed to identify the others. He also
claimed to identify accused Haren Rai, who was not named in
the FIR, without any Test Identification Parade being conducted.
In cross-examination, he admitted inability to specify which
accused took which articles.
14. On the basis of materials surfaced during the trial,
the appellants/accused was examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and shows their
complete innocence.
15. In the present case, the Investigating Officer has
not been examined by the prosecution. During the course of
trial, whether the same will vitiate the prosecution case?
Undoubtedly, the Investigating Officer is a material witness,
being essential to explain the manner in which the investigation
was conducted and the steps taken during the investigation.
However, it is well settled that the mere non-examination of the
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Investigating Officer does not ipso facto vitiate the prosecution
case. The effect of such omission has to be assessed in the facts
and circumstances of each case, particularly with regard to
whether any prejudice has been caused to the accused and where
the ocular and other substantive evidence is otherwise found to
be cogent, reliable and trustworthy, therefore, the prosecution
case cannot be rejected on that ground alone. In this regard, I
find it gainful to draw the proposition of law laid down by the
Apex Court in the case of Ram Gulam Chaudhary v. State of
Bihar, reported in (2001) 8 SCC 311 in para no. 18, which is
inter alia reproduced hereinafter:
“26. In the case of Ram Dev v. State of
U.P. [1995 Supp (1) SCC 547 : 1995 SCC
(Cri) 402 (2)] this Court has held that it is
always desirable for the prosecution to
examine the investigating officer. However,
non-examination of the investigating officer
does not in any way create any dent in the
prosecution case much less affect the
credibility of the otherwise trustworthy
testimony of the eyewitnesses.
27. In the case of Behari Prasad v. State of
Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri)
271] this Court has held that for non-
examination of the investigating officer the
prosecution case need not fail. This Court
has held that it would not be correct to
contend that if the investigating officer is not
examined the entire case would fall to the
ground as the accused were deprived of the
opportunity to effectively cross-examine the
witnesses and bring out contradictions. It
was held that the case of prejudice likely to
be suffered must depend upon the facts of
each case and no universal straitjacket
formula should be laid down that non-
examination of investigating officer per se
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vitiates the criminal trial.
28. In the case of Ambika Prasad v. State
(Delhi Admn.) [(2000) 2 SCC 646 : 2000
SCC (Cri) 522] it was held that the criminal
trial is meant for doing justice not just to the
accused but also to the victim and the society
so that law and order is maintained. It was
held that a Judge does not preside over the
criminal trial merely to see that no innocent
man is punished. It was held that a Judge
presides over criminal trial also to see that a
guilty man does not escape. It was held that
both are public duties which the Judge has to
perform. It was held that it was unfortunate
that the investigating officer had not stepped
into the witness box without any justifiable
ground. It was held that this conduct of the
investigating officer and other hostile
witnesses could not be a ground for
discarding evidence of PWs 5 and 7 whose
presence on the spot was established beyond
any reasonable doubt. It was held that non-
examination of the investigating officer
could not be a ground for disbelieving
eyewitnesses.
29. In the case of Bahadur Naik v. State of
Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri)
1186] it was held that non-examination of an
investigating officer was of no consequence
when it could not be shown as to what
prejudice had been caused to the appellant
by such non-examination..”
16. Now before I proceed to deal with facts of the case
and analyze the evidences both oral and documentary in
background that the conviction is under Section 395 and the FIR
is both under Sections 395 and 397, I find it appropriate to
reproduce the provision of Sections 390, 395, 391, 392 and 396
of Indian Penal Code for the sake of convenience and better
understanding of the facts, which are as under:-
(a) Section 390 of Indian Penal Code (IPC), 1973
defines “Robbery” as theft or extortion committed with use of
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force, violence or arms or redhandedness or fear of such
consequences as would under reasonable means likely to feel
them.
(b) Section 391 of Indian Penal Code (IPC), 1973
defines “Dacoity” as a robbery committed or attempted by five
or more persons acting together. It specifically targets group
robbery where three or more accused persons either attempt, aid
in committing robbery by putting the victim in fear of death,
hurt or wrongful restrain. It can be said that robbery is an
aggravated form of theft or extortion.
(c) Section 392 of Indian Penal Code (IPC), 1973
defines if robbery is committed on the highway between sunset
and sunrise, the punishment may be enhanced more than 10
years.
(d) Section 395 of Indian Penal Code (IPC), 1973
prescribes punishment of life imprisonment with rigorous
imprisonment or up to 20 years of imprisonment along with
fine.
(e) Section 396 of Indian Penal Code (IPC), 1973
prescribes death penalty, where death or grievous hurt happens
during dacoity.
Whether The Offence Alleged Is Proved Under Section
395 Of Ipc, If Not, Under 397 Of Ipc Can The Appellant Be
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Convicted?
17. The appellant has been convicted under Section 395
of IPC. Now I proceed to analyze whether case of robbery is
made out. From perusal of provisions of Section 391/395 of
IPC, for robbery, individual responsibility is required to be
assessed with regard to the individual action of the offenders,
whereby in cases of several people being doing the robbery,
liability will be then depend on the role each offender plays with
force or intimidation. The FIR is under Section 395/397 of IPC.
18. The Hon’ble Bombay High Court in case of State
of Maharashtra Vs. Joseph Mingel Koli, reported in 1997(1)
BOMCR 362 emphasized that immediate use of force during
theft is essential to constitute robbery. The offenders intention to
induce fear in the victim was recognized as a crucial factor,
distinguishing robbery from other form of theft.
19. The Apex Court explaining the provision of Section
397 IPC in the case of in Shri Phool Kumar VS Delhi
Administration reported in (1975) 1 SCC 797, has held inter
alia in paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code
provides:
“Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine; and, if
the robbery be committed on the highway between
sunset and sunrise, the imprisonment may be
extended to fourteen years.”
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The sentence of imprisonment to be
awarded under Section 392 cannot be less than
seven years if at the time of committing robbery the
offender uses any deadly weapon or causes grievous
hurt to any person or attempts to cause death or
grievous hurt to any person: vide Section 397. A
difficulty arose in several High Courts as to the
meaning of the word “uses” in Section 397. The
term “offender” in that section, as rightly held by
several High Courts, is confined to the offender who
uses any deadly weapon. The use of a deadlyof
sentencing the appellant with the aid of Section 397.
So far as he is concerned he is said to be armed with
a knife which is also a deadly weapon. To be more
precise from the evidence of PW 16 “Phool Kumar
had a knife in his hand”. He was therefore carrying
a deadly weapon open to the view of the victims
sufficient to frighten or terrorize them. Any other
overt act, such as, brandishing of the knife or
causing of grievous hurt with it was not necessary to
bring the offender within the ambit of Section 397 of
the Penal Code.
6. Section 398 uses the expression “armed
with any deadly weapon” and the minimum
punishment provided therein is also seven years if at
the time of attempting to commit robbery the
offender is armed with any deadly weapon. This has
created an anomaly. It is unreasonable to think that
if the offender who merely attempted to commit
robbery but did not succeed in committing it attracts
the minimum punishment of seven years under
Section 398 if he is merely armed with any deadly
weapon, while an offender so armed will not incur
the liability of the minimum punishment under
Section 397 if he succeeded in committing the
robbery. But then, what was the purport behind the
use of the different words by the Legislature in the
two sections viz. “uses” in Section 397 and “is
armed” in Section 398. In our judgment the anomaly
is resolved if the two terms are given the identical
meaning. There seems to be a reasonable
explanation for the use of the two different
expressions in the sections. When the offence of
robbery is committed by an offender being armed
with a deadly weapon which was within the vision of
the victim so as to be capable of creating a terror in
his mind, the offender must be deemed to have used
that deadly weapon in the commission of the
robbery. On the other hand, if an offender was
armed with a deadly weapon at the time of
attempting to commit a robbery, then the weapon
was not put to any fruitful use because it would have
been of use only when the offender succeeded in
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committing the robbery.
7. If the deadly weapon is actually used by
the offender in the commission of the robbery such
as in causing grievous hurt, death or the like then it
is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v.
Emperor [AIR 1933 Lah 35] and Inder Singh v.
Emperor [AIR 1934 Lah 522] some overt act such as
brandishing the weapon against another person in
order to overawe him or displaying the deadly
weapon to frighten his victim have been held to
attract the provisions of Section 397 of the Penal
Code. J.C. Shah and Vyas, JJ. of the Bombay High
Court have said in the case of Govind Dipaji More v.
State [AIR 1956 Bom 353] that if the knife“was used
for the purpose of producing such an impression
upon the mind of a person that he would be
compelled to part with his property, that would
amount to ‘using’ the weapon within the meaning
of Section 397.” In that case also the evidence
against the appellant was that he carried a knife in
his hand when he went to the shop of the victim. In
our opinion this is the correct view of the law and
the restricted meaning given to the word “uses” in
the case of Chand Singh [ILR (1970) 2 Punj and
Har 108] is not correct.” (emphasis supplied)”
20. The aforesaid view has been subsequently reiterated
by the Apex Court in para no. 20 in the case of Dilawar Singh
vs. State of Delhi reported in (2007) 12 SCC 641, which inter
alia is reproduced hereinafter:
“20. As noted by this Court in Phool Kumar v.
Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 :
AIR 1975 SC 905] the term “offender” under Section 397
IPC is confined to the offender who uses any deadly
weapon. Use of deadly weapon by one offender at the time
of committing robbery cannot attract Section 397 IPC for
the imposition of minimum punishment on another offender
who had not used any deadly weapon. There is distinction
between “uses” as used in Sections 397 IPC and 398 IPC.
Section 397 IPC connotes something more than merely
being armed with deadly weapon.”
21. Admittedly, the FIR was lodged under Section
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395/397 of IPC, it can be concluded that for an offence under
Section 397 IPC, if at the time of committing robbery or dacoity,
the offender uses any deadly weapon, or causes grievous hurt to
any person, for or attempts to cause death or grievous hurt to
any person, to part with his property the imprisonment with
which such offender shall be punished shall not be less than
seven years. Similarly, if, at the time of committing robbery or
dacoity, the offender is armed with any deadly weapon, frighten
his victim or some overt act of brandishing the weapon against
another person in order to overawe him and compel the person
to part with his person would mean using weapon within the
meaning of Section 397 IPC. The imprisonment with which
such offender shall be punished shall not be less than seven
years.
22. The above distinction made by the Apex Court
shows that there is no difference between Sections 391/395 and
Sections 392/397 IPC, so far as, sentence/punishment except the
difference in case of Section 397 IPC, the punishment shall not
be less than seven years. Otherwise, the ‘robbery’ and ‘dacoity’
are sine qua non. ‘Dacoity’ is nothing but an exaggerated
version of ‘robbery’ with a difference in number of accused.
Therefore, also even in a case where the accused is not
convicted for the offence under Section 397 IPC, still he can be
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punished under Section 395 IPC and no prejudice is caused to
him as ultimately the prosecution has to prove the ‘robbery’ and
‘dacoity’ either for the offence punishable under Section 395
IPC or under Section 397 IPC. However, to bring the case
against the accused under Section 397 IPC, the prosecution has
to prove one additional fact that the offender has used any
deadly weapon or has caused grievous hurt to any person, or has
attempted to cause death or grievous hurt to any person, which it
failed.
23. In the present case, the learned trial Court has not
found that five or more persons conjointly committed the
robbery, and thus the essential ingredients of the offence of
dacoity have not been established. Only four persons were put
on trial, and consequently, the learned trial Court did not record
a conviction of the accused for the offence under Section 391,
punishable under Section 395 of the IPC. Therefore, once a case
under Section 391 IPC, punishable under Section 395 IPC is
made out, they can be convicted for the offence under Section
391 IPC punishable under Section 395 IPC as no prejudice has
been shown to have caused to the accused.
24. Applying the aforesaid settled principles of law to
the facts of the present case, a clear distinction emerges between
the applicability of Sections 395 and 397 of the Indian Penal
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Code. In order to attract Section 395 IPC, the prosecution is
required to establish that five or more persons conjointly
committed or attempted to commit robbery, thereby constituting
the offence of dacoity. The law is well settled that the Section
395 IPC is attracted only when the individual offender is proved
to have “used” a deadly weapon during the commission of the
offence. Mere presence in the company of other offenders or
general allegations of use of weapons by the group would not
suffice to fasten the liability under Section 395 IPC, unless a
specific overt act of use of deadly weapon is attributed to the
accused concerned. In the present case, although there are
general allegations of firing and use of weapons by the dacoits,
there is no cogent and reliable evidence to establish that the
present appellant himself used any deadly weapon within the
meaning of Section 395 IPC. The solitary assertion of P.W.3
regarding the role of the appellant is limited to taking away the
licensed gun and don’t satisfy the legal requirement of “use” of
a deadly weapon, so as to attract the rigour of Section 395 IPC.
25. It is also clear from the prosecution case that a
large number of miscreants had participated but only a limited
number of accused persons came to be put on trial but the
evidence on record and particularly the testimonies of P.W.1 and
P.W.2 don’t support the identification of the accused persons as
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participants in the occurrence.
26. The learned trial court has concluded that the other
accused persons are not guilty and has accordingly acquitted
them of the charges levelled against them. However, has given
reason that the benefit of such acquittal cannot be extended to
the present appellant because he had forcibly took away the
licensed gun. So far as the contention of the appellant counsel
that other accused have been acquitted, the Apex Court has
carved out the distinction in the case of Amrita vs. State of
M.P., (2004) 12 SCC 224; Gangadhar Behera vs. State of
Orissa, (2002) 8 SCC 381 and Raja vs. State, (2013) 12 SCC
674, it has been held that, mere acquittal of some of the
accused on the same evidence by itself does not lead to a
conclusion that all deserve to be acquitted in case appropriate
reasons have been given on appreciation of evidence both in
regard to acquittal and conviction of the accused. As such, the
contention of the appellant that parity should be extended in his
favour on the ground that other co-accused, against whom
similar allegations were levelled, have been acquitted by the
impugned judgment, don’t sustain in view of the principles laid
down by the Apex Court, as referred to hereinabove.
Whether the prosecution have been able to establish
guilt beyond reasonable doubt?
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27. Upon a comprehensive appraisal of the entire
evidence on record, this Court finds that the oral testimony of
the P.W.1 and P.W.2, who are the material witnesses being close
relatives of the informant and alleged eye-witnesses to the
occurrence, though have supported the factum of dacoity in
general terms, but they have categorically failed to identify any
of the accused persons and have, in anunequivocal terms, stated
that the accused persons facing trial were not involved in the
occurrence. Their evidence, therefore, does not support the
prosecution case on the crucial aspect of identification and
rather demolishes the substratum of the prosecution story. In
such circumstances, the conviction cannot be sustained on their
testimony. The entire case, thus, rests upon the sole testimony of
P.W.3, the informant. Though it is a settled principle that
conviction can be based on the testimony of a solitary witness, if
it is wholly reliable. In the present case, the evidence of P.W.3
suffers from inherent inconsistencies and material infirmities,
particularly with regard to identification of the accused persons,
absence of Test Identification Parade, and failure to attribute
specific overt acts to the appellants. His claim of identification
in court, especially when the accused were not properly
identified during investigation, loses its evidentiary value.
28. In the facts and circumstances, the sole testimony of
Patna High Court CR. APP (SJ) No.168 of 2012 dt.05-05-2026
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P.W.3, in absence of any corroborative and cogent evidence,
cannot form a safe basis for conviction. The prosecution has
also failed to examine the Investigating Officer and any
independent witness, which further casts a serious doubt on the
fairness and completeness of the investigation. In view of the
settled legal position, as reiterated in decisions as refereed
hereinabove, that the evidence against each accused must be
independently assessed and conviction must rest on reliable and
trustworthy evidence, this Court is of the considered opinion
that the prosecution has not been able to prove its case against
the appellant to the required standard of proof.
29. Accordingly, the present appeal is allowed.
30. The impugned judgment of conviction 15.02.2012
and order of sentence dated 18.02.2012 passed by the learned 3 rd
Addl. Sessions Judge, Muzaffarpur in Sessions Trial
No.139/2000 arising out of Motipur P.S. Case No. 25/94 is
hereby set aside. Consequently, the above-named appellant is
acquitted from all the charges levelled against him. Since the
appellant is on bail, he is discharged from the liability of his bail
bond. The fine deposited by the appellant, if any, shall be
refunded to him.
31. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Patna High Court CR. APP (SJ) No.168 of 2012 dt.05-05-2026
21/21
Court forthwith.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE 27.04.2026
Uploading Date 05.05.2026
Transmission Date 05.05.2026
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