D.P.SINGH, J. - (1.) THE appellant has preferred this appeal against the judgment and order dated 13.10.1999 passed by IIIrd Additional Sessions Judge, Deoghar in Sessions Case No. 184 of 1998 whereby and whereunder the appellant stands convicted under Sec. 395 of the Indian Penal Code and sentenced to undergo R.I. for a period of seven years and further to pay a fine of Rs. 1000.00 in default whereof to undergo R.I. for a further period of two months.
(2.) BRIEF facts leading to this appeal are that in the night between 24/25 April, 1998 the informant along with his family members was preparing to retire after function in his house when all of sudden fifteen persons overpowered his son and made forced entry in the house. Further stated the culprits assaulted the house inmates and looted valuables including ornaments from the house. The informant further asserted that the said culprits have committed similar dacoity in the house of Jagdishwar Tiwari and Chandradev Rai of same village. When the villagers chased, they threw bombs and managed to escape. The informant claimed that the present appellant was identified by the victims who used to serve as barber in the area. The Kunda police arrived at the place of occurrence and recorded the statement of the informant in presence of other victims Jagdishwar Tiwari and Chandradev Rai and registered Kunda P.S. Case No. 98 of 1998 under Sections 395 and 397 of the Indian Penal Code. The police acted promptly and arrested three persons including the appellant who were put on T.I. parade and identified by the witnesses. The police finally submitted charge -sheet against three persons Ashok Das, Khailu Rai and the appellant Bhairo Thakur. The learned trial Court after evaluating the evidence on record found and held the appellant guilty under Sec. 395 of the Indian Penal Code while acquitted Khailu Rai and Ashok Das of the charges. The appellant has been sentenced to serve R.I. for seven years and fine of Rs. 1000.00 . Therefore the present appeal.
(3.) IN this appeal the conviction has been challenged mainly on the ground that when two of the co - accused were acquitted, the learned trial Court has committed an error of record to find and hold the appellant guilty. The learned Amicus curiae further pointed out that the identity of the appellant is doubtful, as there was no light at the alleged time of occurrence. The identification of the appellant was further assailed on the ground that the appellant was kept in the lock up and witnesses made to identify him. As such, the sanctity of the identification relied by the learned Court below is wholly misconceived. It was pointed out that nothing has been recovered from his possession. The learned Amicus curiae further pointed out that the appellant has remained in custody for more than 18 months before he was released on bail by this Court. Therefore, lenient view may be taken.;