Eyewitness identification under low visibility is valid if witnesses are familiar with the accused, thereby satisfying the prosecution's burden of proof beyond reasonable doubt.

JUDGMENT :

Ambuj Nath, J.

Appellants- Wakil Mahatha, Ramesh Mahatha and Lelha Mahatha have filed this criminal appeal against the judgment of conviction and order of sentence dated 28.07.1995, passed by Shri Alakh Kumar Dubey, learned Additional Sessions Judge-I, Deoghar in Sessions Case No. 12 / 1992 arising out of Deoghar Town P.S. Case No. 53 of 1988 corresponding to G.R. No. 158 of 1988, holding the appellants guilty of the offence under sections 396 of the INDIAN PENAL CODE and thereby sentencing them to undergo imprisonment for life without any fine stipulation.

During the pendency of this appeal, appellant no. 2-Bhagwat Mahatha and the appellant no. 4-Sita Ram Mahatha died. Therefore, this appeal stood abated as against the appellant no. 2 and appellant no. 4.

2. Prosecution case was instituted on the basis of the fardbeyan of the Informant Banku Mahatha, alleging therein that on the intervening night of 22/23.02.1988 when he was sleeping in his house, his elder son Belar Mahatha came to him and informed that thieves have entered into the house. He along with his uncle Sambhu Mahatha went inside the house and saw that six persons had entered there. On seeing the Informant, one accused person assaulted him. In turn, Informant also assaulted one of the accused person by sickle. The informant identified the accused Wakil Mahatha, Bhagwat Mahatha, Ramesh Mahatha, Sita Ram Mahatha and Lelha Mahatha in torch light. Before entering into the house of the Informant, the accused persons had also committed dacoity in the house of the Informant’s uncle Satya Narain Mahatha and had injured him by hurling bomb upon him, due to which he succumbed to his injuries.

3. After investigation, police found the occurrence to be true and submitted charge sheet against the accused persons under sections 147, 148, 149, 302, 448, 380, 342 and 323 34 of the INDIAN PENAL CODE and section 3 /4 of Explosive Substance Act. Cognizance of the offence was taken by the Chief Judicial Magistrate, Deoghar under the aforesaid sections. After cognizance, case was committed to the court of Sessions by the Chief Judicial Magistrate, Deoghar on 25.02.1992 as it was exclusively triable by the Court of Sessions.

4. Charge was framed against the appellants on 12.08.1993 under section 396 of the INDIAN PENAL CODE , which was read over and explained to the appellants in Hindi, to which they pleaded not guilty and claimed to be tried.

5. In order to prove its case, prosecution has adduced both oral and documentary evidence.

Falguni Mahatha (P.W-1) has been declared hostile.

Babulal Mahatha (P.W-2) has supported the prosecution case.

Sambhu Nath Mahatha (P.W-3) has supported the prosecution case.

Prabha Devi (P.W-4) has been tendered as a witness.

Nandlal Mahatha (P.W-5) is a hearsay witness.

Chhaku Mahatha (P.W-6) has supported the prosecution case. He has identified the appellants with the help of torch light.

Nuneshwar Mahatha (P.W-7) has also identified the appellants except the Ramesh Mahatha in torch light.

Banku Mahatha (P.W-8) is the Informant of this case. He has supported the prosecution case.

Rakesh Kumar Brahamachari (P.W-9) is the Investigating Officer of this case. He has proved the fardbeyan which is Ext.3. He has also proved the formal FIR which is Ext.5. He has also proved the inquest report which is Ext.6. He has also proved the seizure list which is Ext.7. He has also proved the place of occurrence.

Defence has adduced the entry made in the CD from para-130 to 142 which has been marked A series. They have also proved the Movement