Prosecution must prove guilt beyond reasonable doubt; unreliable witness identification cannot sustain a conviction.

JUDGMENT :

RAMESH CHAND MALVIYA, J.

Heard Mr. Ajay Kumar Thakur, learned counsel for the appellant and Mr. Bipin Kumar, learned APP for the State.

2. The present appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the Judgment of conviction dated 22.03.2013 passed in Sessions Trial No. 192 of 2012 in connection with Manigachhi P.S. Case No. 242 of 2011 passed by learned Sessions Judge, Darbhanga, whereby and where-under the appellant has been convicted for the offence under Section 395 of INDIAN PENAL CODE (hereinafter referred as ‘IPC’) and acquitted for charges under Sections 397 and 412 of the IPC and vide order dated 22.03.2013 sentenced to undergo rigorous imprisonment for a period of seven years under Section 395 of IPC with fine of Rs. 5000 and on failure of payment of the fine, the appellant will further be sentenced to simple imprisonment for three months.

3. The brief facts leading to the filing of the present appeal is that, on the night of 19.12.2011 after taking dinner the informant along with his family members were sleeping in the house. At about 1.30 AM in the mid-night on hearing some sound the informant and his wife woke up and suspecting some misshappening raised alarm loudly shouting Chor-Chor. In the mean time, the miscreants started knocking the door and out of fear the informant opened the door. 2-3 miscreants entered into the room and firstly they took two mobile phones kept on the trunk and thereafter they asked for the key of Godrej. The miscreants tried to snatch the ear-tops which was worn by the informant’s wife and on her protest they assaulted her with fists and slaps and forcibly snatched the ear- tops which caused injury in both the ears. It is further alleged that the miscreants started committing loot-pat after breaking the locks of the Almirah, trunk, attachi etc. and four other miscreants who were standing in varandah also committed loot- pat in the nearby room by breaking the locks of room and they locked the door of room from outside. The informant gave the age and figures of the miscreants. It was alleged that the miscreants after committing dacoity in the house of informant also committed dacoity in the house of one Jagdish Paswan. In the alleged dacoity the miscreants took away mobile phones, cash amount worth Rs.10,000/- and ornaments from the house of informant and also took away golden ornaments and cash amount of Rs. 15000/-and mobile phones from the house of Jagdish Paswan. After committing dacoity the dacoits fled away.

4. On the basis of such fardbeyan, a formal F.I.R bearing Manigachhi P.S. Case No. 242 of 2011 dated 20.12. 2011 was filed under Sections 395 and 397 IPC against 12-13 miscreants and the investigation was commenced. On completion of investigation the IO submitted charge-sheet no. 59 of 2012 dated 25.03.2012 for offences under Sections 395 , 397 and 412 of IPC against the appellant. Learned Chief Judicial Magistrate took cognizance of the offences under Sections 395 , 397 and 412 IPC against the accused/appellant and transferred the case record to the court of Judicial Magistrate I^st Class, Darbhanga for commitment and ultimately the learned Magistrate committed the case to the Court of Session.

5. To prove the charges against the accused person, prosecution has examined altogether ten witnesses and they are PW-l Devkant Jha, PW-2 Kapil Kumar, PW-3 Jagdish Paswan, PW-4 Krishnakant Jha, PW-5 Hemkant Jha, PW-6 Chandrakala Devi, PW-7 Gulab Paswan, PW-8 Ram Bilas Paswan, PW-9 Raj Kishore Singh, and PW-10 Hari Shankar Mishra.

6. Beside the above prosecution has produced and proved Ext.1 signature of PW-1 on f