Criminal Appeal (SJ) No. 110 OF 1995
In the matter of an appeal under Section 374(2) of
the Code of Criminal Procedure.
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Mahendra Mistry, S/o Nirshu Mistri, R/o Village-
Mahinath Nagar, P.S.-Beldera, District-Monghyr.
……(Appellant)
Versus
THE STATE OF BIHAR——-(Respondent)
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For the Appellant : Mr. B.K. Singh, Adv.
For the State : Mr. Parmeshwar Mehta, APP.
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PRESENT
THE HON’BLE JUSTICE SMT. ANJANA PRAKASH
Anjana Prakash, J. 1. The appellant has been convicted for the
offences under Section 395 IPC and sentenced to RI for
ten years by the 2nd Additional Sessions Judge, Saharsa
in S.Tr. No. 111/81/77/88 by a judgment dated
14.06.1995.
2. The case of the prosecution is that a bus
was looted between Saharsa and Budhama by six
accused persons in which the appellant was identified
by one witness subsequently in the Test Identification
Parade.
3. The prosecution in all examined eight
witnesses out of whom P.W. 1 is the informant but did
not support the prosecution case in its entirety. P.W. 2
is the cleaner of the bus and he was declared hostile
whereas P.W. 4 and P. W. 5 have also been declared
hostile. P.W. 6 is the passenger of the bus who had
identified the appellant in the Test Identification Parade
2
whereas P.W. 3 is the Judicial Magistrate who has
conducted the Test Identification Parade. P.W. 8 is
formal witness.
4. From the evidence of P.W. 3, it is evident
that even though the occurrence has taken place on
07.03.1978 the Test Identification Parade was held on
15.04.1978 i.e. more than a month later. Admittedly the
appellant was identified by only one witness and it is
difficult to sustain the conviction of the appellant on the
sole evidence of P.W. 6 when the Test Identification
Parade was admittedly held more than a month later.
5. Under the circumstances, the appellant is
given benefit of doubt and acquitted of the charges. In
the result, the appeal is allowed and the judgment dated
14.06.1995 passed by the 2nd Additional Sessions
Judge, Saharsa in S.Tr. No. 111/81/77/88 is set aside.
The appellant is discharged of the liability of his bail
bond.
(Anjana Prakash, J.)
Patna High Court,
Patna,
Dated, the 21st April, 2011.
NAFR/Vikash/-
