(1.) ABOVE named appellants, namely, Dasain Dusadh, Sudarshan Yadav (Singh), Daroga Yadav all of village gangadhar Dehri, Katai Bojh, P. S. Tiar, district Bhojpur and the appellant mahendra Yadav of village Katai Bojh, P. S. Tiar, Dist. Bhojpur have filed this appeal against the judgment of conviction and order of sentence dated 30-9-1992 passed by the 3rd Additional Sessions Judge, Bhojpr at Ara in Sessions Trial No. 37 of 1987 (Tiar p. S. Case No. 1 of 1985 dated 24-1-1985)whereby all the appellants were found guilty for committing offence under Section 395 of the Indian Penal Code and were sentenced to undergo R. I. for ten years each besides to pay fine of Rs. 2,500/- each and in default of payment within 90 days of the judgment to undergo further R. I. for six months.
(2.) EXHIBIT 4 is the basis of the prosecution case which is the statement given by the PW 5 Mahesh Pathak on 24-1-1985 at place of occurrence in village Katai Bojh before the S. I. alleging therein that at the preceding 11 p. m. in the night of 23rd January, 1985, pw 5 along with his other family members were sleeping inside the house. At that time 8-10 dacoits scaled down from the roof of the house. They barged into the angan and open
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ed the main door and committed various overt acts. On hearing unusual sound, PW 5 raised alarm, the miscreants fired but the informant luckily escaped unhurt. 4-5 dacoits came inside the room of the informant and assaulted him with Rami, causing injury on his person. PW-5 recognized Dasain Dushadh, sudarshan Yadav and Dargoa Yadav having holding Rami, pistol and gun respectively. The informant claimed that he could identify others because at the time of occurrence they concealing their identify. Lantern was damaged on account of firing by the dacoits. In course of dacoity cloths, ornaments, utensils and other belongings of the house were taken away. After investigation charge sheet was submitted and the case was committed to the Court of Session where the charges were explained to the accused and trial proceeded.
(3.) IN order to prove the case the prosecution has altogether examined 8 witnesses they are PW-1 Kuslesh Kumar Pathak, PW-2 shailesh Kumar Pathak, PW-3 Akhilesh kumar Pathak, PW-4 Smt. Radhika Devi, pw-5 Mahesh Pathak, PW-6 Kamlesh mishra, PW-7 Dr. Birendra Kumar, PW-8 jadunandan Singh, S. I. the I. O. of this case. PW-5 is the informant himself. PW-6 is the Judicial Magistrate who has conducted tip, PWs. 1, 2 and 3 are the sons of the informant PW 5. PW 4 is the wife of the informant PW 5.
(4.) IN order to prove the case the prosecution exhibited some documents also. Signature of PW 5 on fard beyan (Ext.-4) as ext. 1, Signature of Sukh Ram Patham and churaman Pathak on seizure list of articles as Ext.-1 /1, T. I. Chart was prepared by PW-6 is Ext-2, injury report of the injuries on the person of Mahesh Patham informant is ext-3, Fard beyan of Mahesh Patham as Ext-4. Injury report and requisition as prepared by I. O. as Ext-5, Production list is Ext-6, seizure list of Rami recovered from the house of Dasain Dusadh as Ext-7, formal FIR Ext-8. Forwarding report of the material exhibits Ext-X/1, report of the tiar P. S. regarding destruction S. D. entry No. 282, dated 24-1-1985 Ext-X/2.
(5.) ON behalf of the defence judgment in gr No. 598-C-83-Tr. No. 49-Tr. No. 87-State v. Akhilesh Kumar Pathak Ext-A, Judgment dated 27-7-1957 State v. Jagan Ahir as Ext-A/2, certified Copy of the order dated 3-5-1986 state v. Madhusudan Ahir Ext-B, Certified copy of the depositions of Manrakhan pandey as Ext-C series and certified copy of gram Panchayat Araila Ext-D.
(6.) THE defence of the accused was of false implication on account of enmity since long. Further defence of one of the accused was that despite being co-villager he has not been named in the FIR and his TIP was done in perfunctory manner as no person having pox was to be put on TIP despite the fact that accused Mahendra Yadav was having pox all over his face.
(7.) PW 1 has supported the factum of dacoity in his house in the night of 23-1-1985. According to his evidence, dacoity was committed in his house in the night of 23-1-1985 at 11. 30 p. m. At that time he was sleeping with his other family members. In the mean while some unknown miscreants entered into their house and committed dacoity. In para 2 he has stated that after the dacoits fled away he met with his father pw 5 who told that among the dacoits he has identified Dasain Dushad, Sudarshan yadav and Daroga Yadav. Therefore, this witness knew about the names of the named accused persons through PW 5.
(8.) PW 2 has supported the factum of dacoity in his house in the night of 23-1-1985 and he has stated that the dacoits committed dacoity and shot was fired which caused damage to the lantern. He stated that after the dacoits escaped he met with his father PW 5 who named three persons as dacoits. Therefore, this witness came to know about the name of the dacoits from the PW 5 who is his father. Similar is the evidence of PW-3 who is the brother of PWs. 1 and 2. He in his evidence has stated that after the occurrence his father told that such and such persons have committed dacoity. Though the Presiding Officer of the Court below has noted the demeanor of the witnesses that it appeared to the Court that the witness was not deposing truth but on the question of dacoity he has supported the case of the informant but with regard to the identification he has stated that he came to know about the role of the accused persons through PW-5.
(9.) PW-6 is the Judicial Magistrate who has conducted TIP of one of the accused mahendra Yadav who was identified. In cross examination this witness has stated that mahendra Yadav was having sign ofpox over his face but he has not mentioned in his T. I. Chart (Ext-2).
(10.) PW 7 has medially examined the PW 5 and found following injuries : (i) Bruise 4" x 12" on the left shoulder black colour. (ii) Bruise 3" x 1" on the left forearm black colour. (iii) Abrasion 2" x 1/2" on the left supra mammary (iv) Scrach 1" x 1/4" on the left palm and (v) Scrach 3/4" x 1/4" on the right palm.
(11.) ACCORDING to the doctor the injury were caused by hard blunt substance and are simple in nature.
(12.) NOW the most important witness of the case is PW-5. He in his evidence has stated that he was in service and in course of service used to reside outside the village. He has stated that at about 11. 30 p. m. on 23-1-1985 while he was sleeping inside his room then he woke up on hearing unusual sound. He saw flash light of the torches. He cried to his son Akhilesh not to open the door but in the meanwhile one fire was made. The dacoits broken the door and forced their entry inside the room. He has identified three persons. They are sudarshan Yadav, Dasain Yadav and Daroga yadav. With regard to identification of other accused persons he went to jail where in test identification parade he identified mahendra Yadav. He has stated that he was assaulted by the dacoits and he received injuries.
(13.) THIS witness has supported the factum of dacoity as well as he has stated about the role of the named accused persons as well as the person who was put on T. I. P.
(14.) THE I. O. has stated that after getting the news he went to the place of occurrence and recorded the fard beyan of PW-5. He has stated that he has not recorded the evidence of PW 1 during investigation.
(15.) LEARNED counsel for the appellant submitted that appellant No. 4 Mahendra yadav is co-villagers of the informant but he has not been named in the FIR. There is no reason as to why he has not been named in the FIR. On this point learned APP who was assisted by the learned counsel for the informant submitted that the village is big and the informant is in service and resides outside in course of livelihood so there is possibility that he may not recognise all the villagers. The village is not small where every body recognizes every person.
(16.) ANOTHER argument on behalf of the learned APP assisted by the learned counsel for the informant that if the informant intended to implicate Mahendra Yadav since beginning he would have named in the first instance itself.
(17.) THE fact remains that one of the accused Mahendra Yadav is not named in the fir. He was put on TIP and he was identified. But it has also come in evidence that mahendra Yadav was having sign of pox over his face. The fact has been stated by the judicial Magistrate PW 6 also. But there is nothing from which it appears that persons having similar marks were put in T. I. P. If a person having specific identity has been put on TIP along with the persons with general look then there is every possibility that such person be singled out. In this background entire act of holding TIP becomes useless. Besides this fact, it is also apparent that mahendra Yadav is not named in the FIR though he is the co-villagers of the informant. Hence his implication becomes doubtful.
(18.) WITH regard to other three appellants it has been stated that they also having enmity since long for which a number of documents have been produced. They have been identified by one person though the occurrence was of the house but they have not been identified by the other inmates of the house. PW-5 was any how adment to implicate these appellants after a dacoity was committed in his house and taking that benefit he implicated the appellants. It has also been argued that no such dacoity was committed in the house of the informant as no information was given to the I. O. and police station that a dacoity has been committed. The I. O. has come to the house of the informant on his own and no SD entry was produced in the Court at the time of deposition of the I. O. so entire act of the bringing i. O. to the house of the informant on the next date itself was a stage managed affair and no such dacoity was committed in the house. The injury itself was simple in nature which can easily be concocted.
(19.) LEARNED APP assisted by the informant submitted that PW5 is in service and he is not a person of litigant background. It cannot be deemed that a person of his status will get some injury over his person and try to implicate some persons on false implication. The dacoity was committed by the appellants so he has given right statement before the Court.
(20.) I have analyzed the entire evidences on record. It appears from the statement of all the witnesses that a dacoity was committed and the informant has received injuries also. But participation by the appellants have not been explained beyond all reasonable doubt. PWs 1, 2, 3 and 4 were residing in the same house where the dacoity was committed but they have neither seen any person at the time of commission of dacoity nor they have named any of the dacoits rather they came to know about this fact later one by the PW 5. So, PW1, 2 and 3 are the hear say witnesses. If the evidence of pw 5 be seen in the entirety of the case, then the case remains of single identification by PW 5. Undoubtedly conviction can be passed on single identification if it remains intact. But the single identification of the PW 5 has also not remained intact in view of the various contradictions in his evidence as well as in the evidence of other witnesses with regard to manner of occurrence. The doubt has also remained uncleared that as to under what circumstances the I. O. came to the village on the next date and no any document was produced by him. So the information to the I. O. also has not been explained. In these circumstances I hold that the prosecution case has become doubtful on number of facts which remained uncleared. In view of the circumstances that if a doubt is created on the prosecution version then the benefit of doubt is to be passed to the accused and it cannot go in favour of the prosecution. Accordingly, the prosecution has not been able to prove its case beyond all reasonable doubt. In the result the impugned judgment of conviction and sentence is set aside and this appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. Appeal allowed