Anjana Prakash, J.@mdashThe Appellant has been convicted u/s 394/397 I.P.C. and sentenced to R.I. for seven years by a judgment dated 3.9.1994 passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 48 of 1988/ 38 of 1990.
2. The case of the prosecution is that on the night of 21.8.1981 a robbery was committed in the house of the informant, in which the Appellant was also identified.
3. During trial the prosecution has examined eight witnesses in all. Out of whom, P.W.4 is the wife of the informant, P.W.5 is the son of the informant and P.W.6 is the informant himself. P.W.2 and P.W.7 are the witnesses on the factum of robbery, whereas the P.W.1 is a corroborative witness and P.W.3 and P.W.8 are formal witnesses. Neither the doctor nor the Investigating Officer has been examined in the present case.
4. The admitted position is that the Appellant is a close door neighbour of the informant as admitted by the P.W.4 in paragraph 10 that the Appellant used to live ten houses away. The two injured witnesses i.e. P.W.1 and P.W.2 have not supported the case of the prosecution.
5. The factum of occurrence is not under challenge and it is only the identification of the Appellant, which is under criticism. Apart from the evidence of P.W.4 which makes the case untrustworthy the statement of P.W.5 in paragraph 6 that the Appellant had concealed his identity leaves no room for doubt that the prosecution case is false to the extent of implication of the present Appellant.
6. In the result, this appeal is allowed and the order of conviction and sentence passed against the Appellant on 3.9.1994 by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 48 of 1988/ 38 of 1990 is set aside. The Appellant is discharged from the liabilities of his bail bonds.
