Conviction under Section 395 IPC set aside due to insufficient evidence and flaws in the identification process.

ORAL JUDGMENT

Date : 20-12-2025

1. Heard learned counsel appearing on behalf of the parties.

2. The present appeal has been preferred by the appellant-convict under Section-374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the impugned judgment of conviction dated 13.10.2004 and order of sentence dated 14.10.2004 passed by court of learned Additional Sessions Judge presiding the F.T.C. No. II, Gopalganj in Sessions Trial No. 221 of 1994 of 2005, whereby the concerned Trial Court has convicted appellant under Section 395 of the IPC, where appellant sentenced to undergo rigorous imprisonment for ten years and further pay fine of Rs. 5,000/- and had to go rigorous imprisonment for six months.

3. The brief facts of the prosecution case as per FIR is that on 15.12.1992 at about 11:00 P.M., while the informant was sleeping in his fertilizer shop at Basawanpur Bazar after closing his cloth shop, five to six dacoits entered the fertilizer shop, demanded the keys of the cloth shop at gunpoint, assaulted the informant with sticks and shoes, and threatened him not to raise an alarm. Meanwhile, other dacoits entered into the cloth shop and looted cash and clothes worth about Rs. 60,000/-. After tying up Gujeshwari Sah and Gokul Sah, the docoits fled eastward with bundles of clothes. The informant later freed the tied persons, raised an alarm, and chased the dacoits with co-villagers, who escaped after throwing away some bundles. The F.I.R. speaks that the dacoits were 5-6 men aged around 25-30 years. Informant claimed to identify them.

4. On the basis of aforesaid information, Gopalpur P.S. Case No. 64 of 1992 was lodged for the offence punishable under Sections 395 and 397 of the Indian Penal Code .

5. After completion of investigation the charge-

sheet was submitted before learned jurisdictional magistrate which upon commitment transfer to the court of the learned Additional Sessions Judge, F.T.C. No. II, Gopalganj who upon the perusal of material collected during investigation framed charges on 25.11.1998 against appellant-accused, who upon explanation pleaded as “not guilty” and claimed trial. 6. To substantiate its case, before learned Trial Court the prosecution has examined altogether 5 witnesses.

None of the witness examined in defense. They are:-

7. Apart from the oral evidence, the prosecution has also proved the following documentary evidence in order to prove the charges:

8. The statement of the appellant-accused was recorded under Section 313 of the Code after stating incriminating evidences/circumstances as surfaced during the trial, which they denied and shows their complete innocence.

9. Taking note of the evidence as surfaced during the trial and the arguments as advanced by the parties, the learned Trial Court has convicted appellant/convict for the offences under Section 395 of the Indian Penal Code and sentenced him in the manner as stated above.

10. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant/convict has preferred the present appeal.

11. Hence, the present appeal.

12. It is submitted by learned counsel appearing on behalf of the appellant/accused that the order of conviction and sentence passed by the learned trial court is bad in the eyes of law and on the facts of the case.

13. It is submitted that the learned trial cour