Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.66 OF 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION AND THE ORDER OF SENTENCE DATED 01ST FEBRUARY, 2000 PASSED BY SHRI HARA PRASAD CHAKRAVARTY, 6TH ADDITIONAL SESSIONS JUDGE, MUZAFFARPUR IN SESSIONS TRIAL NO. 585 OF 1996 ARISING OUT OF PAROO POLICE STATION CASE NO. 54 OF 1992 =========================================================== PANCHU RAI, SON OF SRI CHULHAI RAI, RESIDENT OF VILLAGE PARU MATHIA TOLA, POLICE STATION PARU, DISTRICT MUZAFFARPUR .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S =========================================================== APPEARANCE : FOR THE APPELLANT/S : MR. AJAY KUMAR THAKUR, ADVOCATE MR. IMTEYAZ AHMAD, ADVOCATE FOR THE RESPONDENT/S : MR. SUJIT KUMAR SINGH, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 20-09-2012 Sheema Ali Khan, J. The appellant has been found guilty and convicted under [STATUTE] and awarded a sentence to undergo rigorous imprisonment for ten years by the 6th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 585 of 1996. The appellant has remained in custody for 4 years 1 month and 20 days during the pendency of this case. 2. The occurrence took place on 03.05.1992. Dwarika Tiwary (PW 3), the informant has stated that there was a puja in his house because his niece was getting married. There were several family members staying in the house and after the Patna High Court CR. APP (SJ) No.66 of 2000 dt.20-09-2012 2 / 5 2 puja, they had all dispersed and were sleeping at different places, such as courtyard, verandah etc. Preparations were being made inasmuch as „MARWA‟ was being prepared for performing the marriage. In the mean time, about 30-35 persons entered the house of the informant. One of the miscreants shot him which hit him on his chest. Thereafter, they entered the courtyard and began to remove all the valuable items, money etc. from the house. During the said occurrence, the informant claims to have identified Mahendra Rai and one Lattoo, who are co-villagers of the informant amongst the miscreants. It has also been alleged that the nephew of the informant, namely, Ram Babu Tiwary (PW 4) was injured by one of the miscreants. The informant was taken to the hospital along with Ram Babu Tiwary for their treatment. 3. On the basis of the aforesaid statement, the trial began in which four witnesses have been examined on behalf of the prosecution. Unfortunately, the Investigating Officer of this case could not be examined. The prosecution has also failed to prove the injury report, if any, much less, examine the doctor who treated the injuries of PWs 3 and 4. 4. PW 1 Mathur Tiwary is the family member of the informant. He claims to have identified three persons during the occurrence, namely, Mahendra, Lattoo Tiwari and Panchu Rai. This witness admits at paragraph 13 that he had not named the dacoits in front of the Investigating Officer in the statement Patna High Court CR. APP (SJ) No.66 of 2000 dt.20-09-2012 3 / 5 3 recorded under Section 161 of the Code of Criminal Procedure. This Court, therefore, finds that the evidence of this witness with respect to the identification of the miscreants cannot be believed. A suggestion was also given that there was a dispute between Pashupati Tiwary, relative of PW 1 and the appellant which has been denied. 5. PW 2 Lal Babu Tiwary, although present at the time of the occurrence, claims to have hid himself and as such, he admits that he was not able to identify any of the miscreants. 6. PW 3 Dwarika Tiwary is the informant of this case. He supports his case in the examination-in-chief but admits in paragraph 16 that he had not named the appellant in the First Information Report. At paragraph 22, it has been stated that he was informed by his nephew (PW 4) the name of the appellants, while they were going to the hospital for treatment. It thus appears that the informant had not named the appellant initially but had named him in his further statement before the Investigating Officer, when the name of the appellant was disclosed to him by his nephew. 7. PW 4 Ram Babu Tiwary was also supposedly injured during the occurrence. It is his case that Panchu Rai, the appellant, had fired at him which hit him near his waist. According to this witness, he had identified Panchu Rai. It is important to note that PW 4 has specifically stated that he had not disclosed the name of Panchu Rai to the informant Dwarika Patna High Court CR. APP (SJ) No.66 of 2000 dt.20-09-2012 4 / 5 4 Tiwary nor had he told him regarding the manner in which he had received the injury. I may quote the relevant portion, which is “bl chp lwpd lkFk esjk ?kVuk d¢ lEcU| esa d¨bZ ckrphr ugh gqvkA bl vku d¢ dze esa }kjdk frokjh ikpw jk; dk uke ugh fy;k Fkk ?kVuk e¢a g¨us dkA” At paragraph 5, this witness has stated that “}kjdk frokjh dks esSus ugh dgk Fkk ?kVuk ds pkj iWakp fnu ckn fd ikWap¨ jk; Hkh ?kVuk e ¢lfEefyr FkkA” It would thus appear that PW 4 who has supposedly identified the appellant had not disclosed the name of the appellant till 4 to 5 days of the occurrence. It may be noted here that PW 3 states that he has named Panchu Rai in the further statement, which was recorded on the next day, whereas PW 4 states that he had not disclosed the name till 4 to 5 days after the occurrence. A suggestion has been given to PW 4 that he has named Panchu Rai because there is a dispute between the backward and the forward category of persons in the village. 8. The evidence referred to above would lead this Court to conclude that the name of Panchu Rai, appellant, has been added as an afterthought by the informant. Not a single witness had disclosed the name of this appellant at the time of lodging of the First Information Report which was lodged at the Sadar H

Applicable IPC Section: 395

Statute Text:
Section 395 of the Indian Penal Code. Dacoity. Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.