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Patna High Court

HANS LAL RAIversusTHE STATE OF BIHAR

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. APP (SJ) No.168 of 2012 dt.05-05-2026
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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
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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
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                      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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