Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.250 of 1989 ======================================================== 1.JAGDISH GARHERI, S/O LATE PRITHWI GARHERI, R/O VILLAGE BHAVENIPUR. 2.UPENDRA YADAV, S/O MANJURI YADAV, R/O VILLAGE SINGION. 3.KAMLESHWARI MUSHAR, S/O BHUWANESHWARI MUSHAR, R/O VILLAGE SIHPUR. ALL OF P.S SINGHESHWAR, DISTRICT MADHIPURA. .... .... APPELLANT/S VERSUS THE STATE OF BIHAR. .... .... RESPONDENT/S ======================================================== For the appellants: Mr.Rajesh Kr Singh, Adv & Mr. Rana Pratap singh, Adv. Amicus Curiae: Mr. Anjani Kumar Jha,Adv. For the State: Ms. Shashi Bala Verma, Adv. ======================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Date: 23-08-2012 The three appellants by the impugned judgment dated 05th of April, 1989 passed by 2nd Additional Sessions Judge in Sessions Trial No. 21/83, 22/83, 23/83 have been convicted for the offence punishable under Section-396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case as set out by the informant, PW-17 Bhumi Mehta @ Bhubneshwari Mehta, recorded at 9:30 am on 06.05.1981 is that in the previous night i.e. in the night of 5/6.05.1981 while he along with his two sons Jaglal Mehta and Upendra Mehta were sleeping on a Chowki at his Darwaza, he was awakened by the flash of torch Patna High Court CR. APP (DB) No.250 of 1989 dt.23-08-2012 2 light and when he had asked about the identity of the person flashing torch light on his face, he had received an abusive reply on account of which he alongwith his sons had woken up and remained sitting on the Chowki. The informant claims that six persons, two of them armed with guns and rest four armed with bows and arrows kept standing in front of him and threatening that if he (informant) would buzz from his place he would be done to death. The informant has also given detailed description of such persons by their apparels and physical features and had stated that some of them were also having pagdi (turban) on their heads. The informant had claimed that while six of the dacoits had remained standing in front of him and rest of them had entered in his house as also in the adjascent house of his brother Babuji Mehta P.W.12 and had committed the act of loot paat in course of which one of the member of the dacoit had also fired on his son Jaglal Mehta hitting him near his left eye and resulting into his instant death at the spot. As with regard to the said deceased son, the informant had claimed that he was a wrestler and did not care for the miscreants. The description of dacoity followed by murder of his son in course of dacoity with other details of the looted property by the informant in the ferdbeyan, Patna High Court CR. APP (DB) No.250 of 1989 dt.23-08-2012 3 however, remained confined against unknown persons, inasmuch as, no one was named in ferdbayan given to police in his house where in the informant on the basis of his assessment at best had claimed to have only identified some of the members of dacoits by face. 3. On the basis of the aforementioned fard beyan of PW-17 (Bhumi Mehta), the informant, Singeshwar P.S Case No. 55(5)81 dated 06.05.1981 was instituted for the offence punishable under Section-396 of the Indian Penal Code against unknown persons and the police after investigation as also arresting the suspected persons and having put them to T.I Parade (Test Identification Parade) had ultimately submitted its chargesheet against five persons including these three appellants as also Bilaiya Mian and Bhumi Mehta, whereafter the case being exclusively triable by the Court of Sessions was committed to the Court of Session by different orders dated 01.08.1983, 16.08.1983, 18.08.1983 and 02.09.1983. The trial Court thereafter having amalgamated all the four Sessions Trial No. 21, 23, 23 and 24 all of the year 1983 and having framed charge under [STATUTE] . against five persons including the appellants had conducted the trial and while it had acquitted two of the co-accused persons namely Bhumi Mehta and Patna High Court CR. APP (DB) No.250 of 1989 dt.23-08-2012 4 Bilaiya Mian, these three appellants were convicted under [STATUTE] . sentencing them to undergo rigorous imprisonment for life by the impugned judgment under appeal. 4. Mr. Rajesh Kumar Singh, learned counsel appearing on behalf of the appellants while assailing the impugned judgment has raised the following issues:- (i) The prosecution having already known about the so called involvement of all these appellants through the raids committed by the I.O on the next date of the lodging of the First Information Report subsequent identification of the appellants by the prosecution witnesses in course of T.I Parade looses its significance. (ii) The informant and his brother Babuji Mehta having themselves admitted in their evidence that they had no source of identification of their own, the identification claimed by them in the torch light of the accused persons is not only absurd but infact also wholly unbelievable. (iii) The identification of appellant no. 3, Kamleshwari Mushar by PW- 6 in T.I. parade held after two years would not inspire confidence, inasmuch as, not only his evidence is inconsistent but he had not even claimed such identification of any dacoit in course of dacoity in his statement to police. (iv) As with regard to Patna High Court CR. APP (DB) No.250 of 1989 dt.23-08-2012 5 identification by PW-12, the father of PW- 6 of all the appellants it has been stated that when in his cross-examination he had admitted to have been confined to a particular place by dacoits having painted face or wearing Pagadi his claim for identifying all the three appellants seems to be unbelievable specially when none of them were said to have been identified

Applicable IPC Section: 396

Statute Text:
Section 396 of the Indian Penal Code. Murder in Dacoity. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.