CRIMINAL APPEAL (D.B.)No.310 OF 2003 --------- Against the judgment of conviction and order of sentence dated 14.5.2003 passed by Shri Shyam Nandan Prasad Verma, Adhoc district and Sessions Judge, Fast Track Court-I, Saran, Chapra, in Sessions Trial No.51 of 1990. --------- 1.ADALAT CHAMAR son of Kuldeep Chamar 2.SHEO LAL CHAMAR son of Managal Chamar, Both are resident of village-Majhampur, P.S.-Manjhi and Dist.-Saran at Chapra. 3.Satar Ansari son of late Manjhi, and Dist.-Saran at Chapra ……….Appellants Versus STATE OF BIHAR ….…..Respondents ---------- For the appellants: Smt. Nutan Sahay, amicus curiae. For the State: Shri Abhimanyu Sharma P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE RAKESH KUMAR ----------- Dhanidhar Jha & Rakesh Kumar,JJ. 1. The present appeal is directed against the judgment and order passed by Fast Track Court No.1, Saran at Chapra on 14th May, 2003 in Sessions Trial No. 51 of 1990 by which the learned Presiding Judge of that court found the appellants guilty of committing offence under section 396 of the Indian Penal Code and directed each of them to undergo rigorous imprisonment for life. 2. The prosecution case is contained in the Fardbeyan of Ram Kishun Rai (P.W.5) recorded on 28.4.1989 in State Dispensary, Manjhi. He stated that he woke up on cry of his brother, Nanhak Rai, (the deceased) and rushed towards him. Three-four dacoits intercepted him and also assaulted him with Lathi. He claimed to have identified the three appellants among the dacoits. It was alleged that one of the dacoits snatched Hasuli of forty Bhar from his Bhabhi, Munra Devi (P.W.4). The deceased, who was sleeping just near P.W.4 attempted to catch hold of the dacoits, who badly assaulted him rendering him unconscious. Nanhak Rai was found bleeding from his mouth, nose and head. In the meantime, the appellant, Sattar Ansari, snatched the wrist watch from Dhanji Rai (P.W.1), who was also sleeping just by the side of the deceased upon which Dhanji Rai (P.W.1) also attempted to catch hold of the dacoits upon 2 which Adalat Chamar assaulted P.W.1 with Lathi. Thereafter, dacoits entered into the house of the deceased Nanhak Rai to plunder the properties. 3. The informant stated that he had very well seen the dacoits and could identify them if he could again have the occasion of seeing any of them. He gave the features of the dacoits upon which he had identified them and he further claimed that he along with his family members specially, P.W.4, Munra Devi may also identify the dacoits. While describing feature of the dacoits, the informant (P.W.5) stated in his fardbeyan that dacoits were 10-12 in number and they had put on turbans on their heads and they were of different complexions and were also of different statures. 4. On the basis of the fardbeyan, a first information report was registered. We want to note that neither the fardbeyan nor the first information report has been brought on record by formally examining a witness in that behalf least to talk of examining the officer/officers who had drawn them up. Still it may be noted that investigation was taken up on the basis of the report and finding sufficient materials, the appellants were put on trial. 5. The prosecution examined ten witnesses in support of the charge under section 396 of the Indian Penal Code which was framed against the three appellants by learned Additonal Sessions Judge, Chapra and brought on record the inquest report by examining Brij Bihari Singh (P.W.9). So far as other witnesses are concerned, PWs. 6 and 7 turned hostile as they did not support the prosecution charge. P.W.8, Vijay Lal, was also a witness to the inquest. Out of the remaining witnesses, P.W.1, Dhanji Rai, was the son of the deceased and himself an injured person Dhodha Rai (P.W.2) was the cousin brother of the deceased, whereas P.W.3, Chand Jyoti Devi, was wife of P.W.2, Dhodha Rai. Munra Devi, P.W.4, is mother of P.W.1, Dhanji Rai, and also the wife of the deceased Nanhak Rai. P.W.5, Ram Kishun Rai, was the informant of the case, who was the full brother of the deceased and was, as per his claim, injured during the course of occurrence. P.W.10 was a hear-say witness as may appear 3 from consideration of his evidence in paragraph 3. 6. The defence of the appellants was that they had falsely been implicated on account of the fact that one of the family members of the deceased and the informant, namely, Marai Rai @ Somnath had developed an illicit relationship with the daughter of one Rashid Mian for which a Panchayti was held in which Punches of the village of occurrence, i.e., Kaurudhauru, Saidpura and Majhanpura had participated and had found the son of Nanhak Rai guilty and had imposed some fine also and, as such, the appellants were implicated on account of having participated in Panchayti as representatives of the village Saidpur. In support of the above defence, the appellants did not examine any witness. 7. On account of submission of Sri Nawal Kishore singh, who had initially filed the present appeal, that he did not have any instruction from the appellants and further that no objection had been obtained from him by the appellants, we were forced to appoint an amicus curiae and, accordingly, Smt. Nutan Sahay was heard by us as amicus curiae. We have also heard Sri Abhimanyu Sharma on behalf of the State. 8. Smt. Nutan Sahay took us through the evidence of each and every witness and submitted that the evidence of witnesses were contradictory to each other as regard some of the vital aspects of the prosecution story. The doctor, who examined the injured like P.W.1 or P.W.5, and the one who held postmortem examination on the dead body of Nanhak Rai were not examined nor injury reports or the postmortem examination report were brought on record so as to establishing that the cause of death was the reason which was alleged against the appellants or that P.W.1 and P.W.5 were injured during the course of occurrence. The witnesses stated that there was a lantern burning at a particular place in the house in which dacoity was committed, but the same was neither seized nor produced before the court to establish that there was source of light facilitating identification of the accused persons. In support of 4 the contention that on account of non-production of source of identification the case of the prosecution has to fail, Smt. Sahay has placed reliance upon the case of Mashi Das Minz Vs. State of Bihar 2000 (1) PLJR 86. It was next contended that neither the blood-stained earth nor blood stained-clothes were produced before the court nor there was any evidence brought on record to indicate that they had really been seized. It was contended that some of the witnesses, like, P.W.4 has stated that the dacoits exploded bomb also but the investigating officer was not examined so as to stating that he had found any mark created on account of explosion of bomb and further that he had really seized any remnant of any explosive material or seized blood from the spot. Besides, non-examination of the investigating officer, submitted Smt. Sahay, had caused great prejudice to the appellants as some of the most vital contradictions brought on record by cross-examination of the witnesses could not be proved from him. Smt. Sahay referred to various lines of evidence of witnesses to point out contradictions in their evidence on some of the material aspects of the occurrence and submitted that it was absurd to accept that persons who were inimically disposed towards the informant and his family members and who had come to commit serious offences like dacoity and murder, could not conceal their faces and move around bare-face while dacoits who were not known to the informant or his family members would be concealing their faces. 9. Shri Abhimanyu Sharma, Additional Public Prosecutor, submits that non-seizure or non-production of lantern does not create a defect in the prosecution case inasmuch as it is not unknown that identification of dacoits could be possible even in the light of their torch lights flashed by them. It was contended that a string of consistency runs through the evidence of the witnesses and they did not appear materially faultering at any particular point so as to create any defect in the prosecution case. It was contended that the witnesses were injured in course of occurrence. One of the family members of 5 the witnesses had been killed and on consideration of the evidence it could be found that the stay of the dacoits for quite some time was making it possible for the witnesses to identify them. On the above contentions, Shri Sharma submitted that the judgment passed by the learned trial Judge must be sustained. 10. It does not appear to us that no occurrence had taken place in the house of the deceased. We are readily accepting the story that some incident had taken place in which one of the family members of the informant had been assaulted and killed. That evidence is sufficiently available to us. The witness like P.Ws. 1, 2, 3 and 4 and even a formal witness like P.W.9 states that Nanhak Rai had been murdered in the fateful night. So non-examination of the doctor or non-production of postmortem examination report as per the rule of evidence, to us, appears of no consequence. What appears important to us is to figure out as to who had participated in the commission of the offence. For deciding this question non-seizure of lantern, to us, appears again inconsequential inasmuch as experience goes to show that no dacoity is committed by dacoits without their own source of light which is generally torch lights. The flash of torch at a constricted place like a room of a house or some enclosed place like the Varandah of the house could provide sufficient light and thereby an opportunity to look at the face of the dacoits and to pick up the identifying features. It may be helpful to the witnesses at the time they are called to identify the accused persons in a test identification parade. Some source of identification, i.e., light generated by flashing torch-lights could be sufficient to facilitate the identification of the accused persons. We, as such, are not inclined to take an adverse view against the prosecution for non-seizure or non-production of lantern. We are inclined to hold that there could have been sufficienct light, at the place where the deceased or injured persons were sleeping to facilitate proper identification by reading features of the faces of the culprits. 11. However, we find some absurd evidence which does not appeal to 6 our conscience to hold that it could be the appellants, who had really participated in the occurrence. The evidence of P.W.4, Munra Devi, who was very much present at the place where every one was assaulted and the main part of the occurrence was committed. She has stated in paragraph 16 of her evidence that the three appellants had covered their faces by Gamchha. The appellant, Adalat Chamar had pulled it off so as to tie the hands of P.W.1. P.W.5, the informant of the case, Ram Kishun Rai had stated in paragraph 8 of his evidence that the appellants were bare-face, but some of the dacoits had concealed their face. There is ample evidence on record that the witnesses were frequent visitors to village Majhanpura and Saidpura and were fully acquainted with the accused persons. P.W.2, Dhodha Rai, who is cousin of the deceased, has also stated in paragraph 4 that appellant, Sattar Mian, was a man having sufficient landed properties and was known to him since last 10-15 years. It defies reasoning that if the appellants were known since a long time to each of the witnesses and their family, they will go into their house bare-face to commit dacoity whereas the culprits who were not known to the witnesses would conceal their faces and identities. After considering the above line of evidence, we find ourselves completely unable to accept that the appellants had really been identified by the witnesses. 12. There are other reasons for us to say that possibility could be that the appellants had not participated in the offence. The prosecution case is that wrist watch of Dhanji Rai was snatched by Sattar Mian. P.W.1, Dhanji Rai also gave some evidence in paragraph 1 of his deposition but P.W.4 who was very close by, as per her evidence, to P.W.1, her son, has stated in her evidence in paragraph 1 at page 19 of the paper book that watch of her son (P.W.1) was snatched by Adalat Mian. Not only that the evidence of P.W.4, who was the star witness of the prosecution and whose evidence appears the foundation stone for the lower court to pass its judgment, has stated that when her son was assaulted she fell on the feet of the dacoits imploring them to spare her son, upon which 7 the appellant, Adalat pulled off his Gamachha by which he concealed his identity to tie the hands of P.W.1. Not only that, P.W.4 further stated that she collected her son into her lap to comfort him. P.W.1 does not state any of these facts that his hands were tied with the help of Gamchha by appellant Adalat and that when he was assaulted, his mother collected him in her arms and lap and comforted him. This is one of the evidence and the reason which appears sufficient to say that witnesses, mainly the injured gave statement in court so as to ensuring that the appellants be convicted. 13. Besides the above evidence, we find that except two articles, i.e., a Hasuli and the wrist watch, no further detail of any article was given by any of the witnesses which could be said to be taken away in course of dacoity. The witnesses have not stated as to in what manner the house of the deceased was plundered. Besides, non-examination of the investigating officer left a big void in the prosecution story because he was the best person to say that he had found the house completely or partially plundered by the culprits and may be that he could have stated before the court as to what were the articles which were found missing from the house-hold. Likewise, his non-examination leaves another hole in the prosecution case because he could be the only person to say that he had found blood having fallen at a particular place or that he had found marks of explosion which was detonated by the dacoits and further that he had affected seizure of the blood stained earth or remnants of the explosive substance. Non-examination of the investigating officer, to us, appears a defect in the prosecution case which has left many shortcomings in it. Likewise non- examination of the doctor who had examined the injured or who had held postmortem examination also appears greatly influencing the result of the present appeal inasmuch as we do not have any evidence before us to point out that indeed P.Ws.1, 4 and 5 had any injury cause to them at or around the time of occurrence or that the manner of assault on the deceased was also corroborated by the opinion rendered by the doctor. These were the necessary 8 persons, who could have lent assurance to the prosecution narrating by their evidence and their non-examination appears affecting the proof of the charges adversely. 14. P.W.9 in his cross-examination in paragraph 3 at page 44 of the paper book has stated that Marai Rai, who happens to be the son of the deceased (Nanhak Rai) had misbehaved with the daughter of Rashid Mian for which villagers of three villages namely, Majhanpura, Kaurudhauru and Saidpura had assembled at a particular place in connection with a Panchayti convened to discuss the issue. The same witness in paragraph 2 stated that the above named Marai Rai was also known as Somnath, who was the son of the deceased. The witness has further stated in paragraph 3 that the said Marai Rai was held guilty by the Panch and a fine was also imposed upon him, but inspite of that he could not reform himself and when an attempt was made to further persuade him to mend his manners, he picked up a quarrel with the appellant, Adalat Chamar, who had formally lodged a protest with the deceased. The factum of holding a Panchayti was also corroborated by P.W.10, Ram Lal Deo, in his evidence in paragraph 3 by volunteering the facts connected thereto. We find that there was some ill will between the appellants, who were resident of Majhanpura and Saidpura village and probability might be that on account of not identifying the real culprits the informant and others were influenced by an apriori suspicion and, thus, there could be probability of implicating the appellants. This probability appears raised further when we refer to the evidence of P.W.3, Chand Jyoti Devi. In her cross-examination which appears at page 17 of the paper book she stated that persons of the family and others who had assembled after two hours of the occurrence were discussing amongst themselves the name of the accused to be implicated. 15. Considering the evidence available to us on the probability appearing therefrom, we are of the considered view that the prosecution had not succeeded in bringing home the charges. As regards the complicity of the 9 appellants, it appears to us that it is a case in which charge had not been proved to the hilt, as a result of which benefit of doubt could have been extended to the appellants. 16. We, as such, allow the present appeal, acquit the three appellants by extending to them the benefit of doubt, after setting aside the conviction and sentence passed upon each of them. The appellants are in custody. They are directed to be released forthwith if not wanted in any other case. 17. We record our sincere appreciation of the assistance rendered to us by Smt. Nutan Sahay in a very short time. We feel that she is entitled to the fee admissible to an amicus curiae and that may be defrayed by the High Court Legal Services Committee. 18. Let a copy of the first and last pages of the present judgment be handed over to Smt. Nutan Sahay for that purpose. Patna High Court The 4th February, 2010 Md.S.(NAFR) (Dharnidhar Jha,J.) ( Rakesh Kumar, J.)