Conviction quashed due to identification discrepancies and improper procedural adherence under Section 313 CrPC.

ORAL JUDGMENT

Date : 06-12-2025 As learned counsel appearing for appellant/convict has failed to appear when this matter was taken on Board for final hearing, therefore, this Court appointed Mr. Surya Prakash Vishwas, learned Advocate as an Amicus Curiae to assist in disposal of appeals.

2. This appeal has been preferred by the appellant/convict under Section 374 (2) of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) challenging the impugned judgment of conviction and order of sentenced dated 25.03.2004 passed by learned Additional Sessions Judge, Gaya in S.Tr. No.4 of 2003/47 of 2003 arising out of Khizar Sarai P.S. Case No.36 of 2002, whereby the concerned Trial Court has convicted the appellant/convict for the offence punishable under Section 395 of the Indian Penal Code (for short ‘I.P.C.’) and sentenced to undergo rigorous imprisonment for seven years.

3. The brief case of prosecution, as per fardbeyan of informant, namely, Jalim Manjhi (PW-3), which was recorded by Gandhi Bhagat, S.I., Khizar Sarai Police Station on 17.03.2002 at 1.30 hours, alleging therein that in the night of 16.03.2002, he was sleeping along with the family members in his house situated at village-Degaun Bhuin Toli P.S.-Khizar Sarai, District-Gaya, at about 12.30 A.M. in the night, he awoke on hearing the sound of khar-kharahat and on seeing in torch light, he found some of the miscreants armed with pistol and guns had entered in his house. It was further alleged in the fardbeyan that those miscreants pointed their guns and asked him that they were the members of the party’s men and if the he (informant) would raise any alarm, his life and lives of his family members would be taken away. Therefore, the informant and his family members remained silent out of fear of their lives. It was further alleged that other miscreants also entered inside the house and taken away certain belongings from the house. It was further alleged that in the light of ‘Dhibri’ the informant identified the appellant Balo Manjhi and one other accused Mithlesh Paswan. It is further alleged that the other miscreants who were 20-25 in numbers were armed with country-made guns, revolver, lathi and danda etc. and were using local languages. The informant has given the description of the miscreants and alleged that after stay of one and half hours in his house, the miscreants disappeared towards west of the village in falgu river. It is further alleged that after departure of miscreants, when the informant came out of his house, he came to know that another dacoity was also committed in the said night in the houses of Kuleshwar Manjhi (PW-2), Ram Brikash Manjhi and Ashok Manjhi (PW-1) and others.

4. On the basis of aforesaid fardbeyan of the informant (PW-3), the police registered F.I.R., being Khizar Sarai P.S. Case No.36 of 2002 dated 17.03.2002 for the offence punishable under Section 395 of the IPC against the Mithilesh Pawan and other unknown accused persons.

5. After completion of investigation and on the basis of materials collected during investigation, the Investigating Officer of this case submitted charge-sheet No.74 of 2002 dated 16.06.2002 under Section 395 of the IPC against the appellant before the learned Trial Court.

6. The learned trial court after perusal of materials collected during investigation and hearing the accused/appellant framed charges under Section 395 of the IPC against the appellant-convict, which were explained to the appellant/convict, to which, he pleaded not guilty and claimed to be tried.

7. To substantiate its case, the prosecution has examined altogether three witnesses. They are:-(i) PW-1 Ashok Manjhi (ii) PW-2 Kaleshwar Manjhi; (iii) PW-3 Jalim Manjhi, who is informant of the case.

8. Apart from the oral evidence, the prosecution has al