Navaniti Prasad Singh, J.
1. The three appellants in these two appeals have been convicted under Section 396 of the Indian Penal Code ( for short `I.P.C.’) and sentenced to undergo imprisonment for life by the Ist Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 56 of 1990/ 2 of 1992 by the judgment of conviction and order of sentence, both dated 06.08.1992.
2. The prosecution case is based upon the fardbeyan lodged by Sheo Balak Rai (P.W.17), the husband of the deceased Kaushalya Devi at about 8 am at Narma State Dispensary. It was recorded by Suresh Dubey, A.S.I. of Hathuri Police Station, District Muzaffarpur, who has not been examined. He was also the Investigating Officer, but he had not filed the charge-sheet, which was filed by P.W.16 Bhisam Singh.
3. It is, inter-alia, alleged that the fardbeyan was given when the informant (P.W.17) Sheo Balak Rai regained consciousness at State Dispensary. It is stat
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d that in the night of 29.12.1988 when the informant was sleeping at the door in his hut, he woke up on the sound of calf tied outside. When the informant came out of the hut, he found that there were about 10 dacoits, who had come. Some of them went into the hut, where his wife Kaushalya Devi and his younger son Aklu Rai (P.W.1) were sleeping. They demanded money. There was a scuffle. He was badly beaten up. He ran out of the house. The dacoits then removed Rs.4,200/- from his pocket. His son was able to identify one of the dacoits as Bhola Paswan, one of the appellants, who is of neighboring village. This fardbeyan, as noted above, was given at 8 am on 30.12.1988. It appears that the fardbeyan was then recorded as a formal first information report on the same day at 2.30 pm and the case being registered, it was forwarded to the Chief Judicial Magistrate, Muzaffarpur, who had perused the same on 31.12.1988. The said Suresh Dubey, A.S.I., then took up investigation and at about 7.30 am on 31.12.1988 appellant Bhola Paswan was arrested from his house and a detailed confessional statement was recorded by the said Suresh Dubey, A.S.I., which was signed (thumb impression) by Bhola Paswan, wherein he has named in all ten persons, who were involved in the said dacoity. After completing investigation, charge-sheet was submitted against six persons i.e. three appellants and three others, out of whom two were shown as absconders. Cognizance having been taken, the case was committed to the Court of Session and charges were framed under Section 396 I.P.C. against all the six accused persons, but after trial the three appellants alone were convicted and the rest persons were acquitted though the non-charge sheeted accused and all the charge-sheeted accused were named in the confessional statement of appellant Bhola Paswan as recorded by the Police.4. Learned counsel for the appellants states that though the prosecution has examined 18 witnesses, it would not be relevant to refer to all of them in detail because as per the fardbeyan itself it is only the informant, who was able to identify appellant Bhola Paswan. The informant is P.W.17 Sheo Balak Rai. Other person, who was present, is his son Aklu Rai, who has been examined as P.W.1. The A.S.I. Suresh Dubey, who conducted the investigation, arrested appellant Bhola Paswan and recorded his confessional statement, has not been examined and no reason therefor has been furnished by the prosecution. It appears that a test identification parade was also conducted after various accused persons had been arrested. In the said test identification parade, the informant was able to identify the appellants Jay Prakash Mahato and Babaji Sahni. There is yet another witness, who is P.W. 11 Sukhdeo Rai, who also identified the said two appellants in the test identification parade.5. Learned counsel for the appellants submits with reference to deposition of P.W.11, that P.W.11 in his cross-examination admits that he came to the place of occurrence after the dacoits had left, which, it is rightly submitted, is enough to discredit his identification with regard to the two appellants either at the test identification parade or in the court.6. We then have P.W. 1 Aklu Rai, the son of the informant. He was about 7-8 years old when the incident took place. A reference to his deposition clearly shows that he was unable to identify any body. He, in categorical terms, stated that when the dacoits started beating up, he ran away. In cross-examination, he admits that the villagers came after the dacoits had fled, thereby meaning that no one else could have identified any of the dacoits. That leaves us with the informant P.W. 17 Sheo Balak Rai.7. P.W. 17 Sheo Balak Rai in the fardbeyan had stated that he was able to identify appellant Bhola Paswan in the hut by the torch light of the accused persons. However, when we come to his deposition in the Court as the prosecution witness he states that all the dacoits had covered and coloured their faces so as to conceal their identities. It was a dark night. When he was being beaten up, he ran out of the hut and went into the village calling for help. When he returned the dacoits had already fled away leaving his wife stabbed to death. In his cross-examination, he stated that he had identified appellant Bhola Paswan from a distance of about 10 laggis, one laggi being about 6 & ft. It gives a complete go by to identification by torch light in the hut itself. Thus, seen as per his own statement in the Court, he was able to identify appellant Bhola Paswan, who had tried to conceal his identity from a distance of about 60 ft. on a dark night either while the dacoits were escaping or while he was escaping from the hut. In his cross-examination, he admits that so far as appellant Bhola Paswan is concerned, he knew him from before as his brother had taken some money from the informant, which he was not returning. He had identified the other two appellants at the test identification parade after about two months of their arrest, but in the cross-examination he admits that about two months prior to the incident, he had an altercation with the two appellants.8. Learned counsel for the appellants rightly submits that the identification of the three appellants is not at all reliable. So far as appellant Bhola Paswan is concerned, in the fardbeyan he is alleged to have been identified by torch light in the hut itself but in the Court story is changed as he is said to have been identified at a distance of about 60 ft. while he was running away on a dark night. He is known to the informant and there is an animus for false implication as admitted in the cross-examination.9. We would like to notice yet another fact so far as appellant Bhola Paswan is concerned. It is his alleged confessional statement made before the Investigating Officer and signed by him that led to the arrest of other accused persons. This confessional statement was recorded at 07.30 am on 31.12.1988 i.e. the very next morning of the fardbeyan being recorded. But this appellant was not sent for remand to the Court. His confessional statement was rather sent to the Court only on 01.01.1989, whereas, the F.I.R. was sent on 31.12.1988 and received in the Court on the same day, by which time appellant Bhola Paswan had already been arrested and his confessional statement was allegedly recorded. The reason for this has not been explained by the prosecution as that Police Officer has not been examined in Court even though I.O. Suresh Dubey was shown as a charge-sheet witness.10. It is further rightly submitted by learned counsel for the appellants that the fardbeyan itself would show that the informant was brought unconscious to the Sate Dispensary because he states that having regained consciousness he was making the statement. He had received injuries, but no injury report was brought on record. Why he was brought at the State Dispensary, where his fardbeyan was recorded is not explained. As per his fardbeyan, he was not injured by the dacoits while they were fleeing away. All this remains to be unexplained.11. Having given our anxious consideration, we are unable to rely upon the identification of the three appellants. The reason is simple. In the cross-examination, the informant agrees to the facts clearly showing that there was animus. His evidence clearly indicates that all the dacoits were concealing their faces. The means of identification or manner of identification changes completely from the fardbeyan and the statement before the Court. In the fardbeyan, appellant Bhola Paswan is said to have been identified by torch light of dacoits in the hut itself, but in the Court it is stated that the informant had seen Bhola Paswan from a distance of 60 ft. on a dark night outside the hut. This major contradiction is not explained. This informant knew the three appellants from before, but still the other two were also not named in the fardbeyan. This leads us to believe that though there might have been a dacoity in the hut of the informant, in which his wife was killed, but the implication of these three appellants in the incident cannot be said to be valid or correct. It is clearly actuated by malice there being no valid identification. In these circumstances, we have no option but to allow these appeals and set aside the judgment of conviction and order of sentence.12. In the result, both the appeals are allowed, the judgment of conviction and order of sentence passed by the trial court are set aside and the appellants are acquitted of the charges levelled against them. They are discharged from the liability of their bail bonds.
"2015 (2) Crimes(SN) 620,"