CRIMINAL APPEAL No.633 OF 2004 Against the judgment and order dated 26th July, 2004, passed by Sri Thakur Prasad Singh, Additional Sessions Judge, Fast Track Court No. V, Nalanda in Sessions Trial No. 178 of 1997 CHHOTU JAMADAR, son of Late Modi Jamadar, Resident of Village- Bela, Police Station- Vena (Ginna) (Rahui), District- Nalanda-----(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondents) For the Appellant:- Mr. Anil Kumar Srivastava, Advocate For the State :- Mr. R.N. Jha, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The sole appellant is convicted by order and judgment dated 26th July, 2004 passed by Additional Sessions Judge, Fast Track Court No. 5, Nalanda in Sessions Trial No. 178 of 1997 to undergo imprisonment for 10 years and pay a fine of Rs. 1000/- for an offence under Section 395 of the Indian Penal Code. 2. The prosecution case in short is that in the night of 17/18 March, 1996 some miscreants entered the house of the informant and took away number of valuable belongings including clothes, ornaments etc. The informant was able to see in the ‘Dhibri’ light that the miscreants were aged about 25-30 years. After the dacoits left, the 2 informant saw that her ‘Dewar’, Surendra Prasad Verma was lying in an injured and unconscious condition. He was taken to the hospital. After recovery, Surendra Prasad Verma is said to have stated that Chhotu Jamadar was amongst the persons who had accompanied the dacoits. 3. The defence of the accused is that he is not involved in any occurrence. It is specific defence that he was the ‘Bataidar’ of Akhileshwar Kumar Sinha, P.W. 2 and because of dispute in the distribution of rice between the two, his name has been dragged in this case. 4. To prove the case, the prosecution has produced six witnesses. P.Ws. 1 and 3 are the daughters of the informant. P.W. 4 is the informant whereas P.W. 2 is Akhileshwar Kumar Sinha, cousin of informant. P.Ws. 6 is the doctor who examined the injured person Surendra Prasad Verma at Sadar Hospital. 5. The question that arises in this case is whether appellant can be convicted on the basis of the evidence of Surendra Prasad Verma? The Trial Court has taken into account that the daughters and the informant have subsequently named Chhotu Jamadar in their statements under 3 Section 161 Cr.P.C. and in Court and has thus held that the appellant has been identified by three persons and has convicted him under Section 395. 6. Learned counsel appearing on behalf of the appellant submits that it is the admitted case of the prosecution that the appellant Chhotu Jamadar was a resident of the same village as the informant and was well known to the informant and her two daughters as he was admittedly the ‘Bataidar’ of P.W. 2, Akhileshwar Kumar Sinha, the uncle of P.Ws. 1 and 3 and cousin brother-in- law of P.W. 4, the informant, and as such their evidence cannot be relied upon, his name has been subsequently introduced as an afterthought at the behest of Akhileshwar Kumar Sinha and Surendra Prasad Verma. 7. Learned A.P.P. appearing on behalf of the State, on the other hand, submits that the Court has rightly convicted the appellant on the basis of t he aforesaid evidence and even if the evidence of P.Ws. 1, 3 and 4 are ignored, the evidence of Surendra Prasad Verma sufficient to hold the appellant guilty of the aforesaid crime. 8. Admittedly the Investigating officer 4 has not been examined in this case. The investigation, as usual, is so poor that police has failed to investigate whether there were others involved in this occurrence, and if so trace the other dacoits. The implication of the appellant by Surendra Prasad Verma is obviously at the behest of Akhileshwar Kumar Sinha with whom the appellant is admittedly not on good terms. P.W. 2 admits that Chhotu Jamadar was working with him till three days prior to the occurrence. He also states that Surendra Prasad Verma had disclosed to him that Chhotu Jamadar was involved in the occurrence. This witness also states that the place of occurrence has not shown to the investigating Officer and that nobody came to the place of occurrence after the dacoits had run away. It is strange that Surendra Prasad Verma has named the appellant after three days of the occurrence. P.W. 1, the doctor who examined the informant has found that there is incised wound 3”x¼”x¼” by the left side of forehead, three small lacerated wounds each of ¼”x¼”x¼”, one lacerated wound ½”x½”x½ on the right thigh. According to the informant injury no. 1 has been caused by piercing by a piece of 5 glass. The X-ray report was not received showing that injury was grievous in nature. In the cross examination, the doctor also states that injury nos. 2 and 3 could have been caused by a fall. It has also been argued on behalf of the appellant that in fact Surendra Prasad Verma hurt himself and the whole case has been cooked up to implicate Chhotu Jamadar because of dispute with his cousin P.W. 2. It may be noted here that there is no evidence of the doctor to indicate that Surendra Prasad Verma was unconscious for three days and thus his statement could not be recorded by the police till three days of the occurrence, which raises suspicion and leads this Court to believe that the name of the appellant has cropped up at the instigation of P.W. 2 Akhileshwar Kumar Sinha who also was interested enough to get himself examined in this case, although he usually resides at Patna and comes to the village to get his share of the crops during the season. 9. On the basis of the evidence aforesaid, I find that the evidence led by Surendra Prasad Verma is not trustworthy and sufficient to convict the appellant in a case 6 under Section 395. The Courts are always cautious in convicting persons who are named as dacoits by the witness as there is greater chance of false implication. In this case the appellant is not named in the First Information Report and the introduction of his name by the informant and her daughters subsequently raises suspicion that there is a motive behind the implication. The motive is revealed during trial after the examination of the P.W. 2 and Surendra Prasad Verma, which is sufficiently strong reason for naming the appellant as one of the miscreants. 10. Accordingly the conviction and sentence passed against the appellant by judgment dated 26.7.2004 is hereby set aside and he is acquitted of the charges levelled against him. He is directed to be set at liberty forthwith if not wanted in any other case. 11. In the result this appeal is allowed. Patna High Court, March 31st, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)