Criminal Appeal (SJ) No. 150 of 1998 WITH Criminal Appeal (SJ) No. 175 of 1998 ****** Against the judgment of conviction dated 19.03.1998 and order of sentence dated 20.03.1998 passed by Sri Singheshwar Prasad, learned 7th Additional Sessions Judge, Rohtas at Sasaram in Session Trial No. 90 of 1989. ****** Keshwar Tiwary, Son of Late Jai Gobind Tiwary, resident of village – Bisenikala, P.S. – Rajpur, District – Rohtas. .... .... Appellant (In Cr. Appeal No. 150 of 1998). ****** Batohi Singh, Son of Dukhi Singh, resident of village – Bisaini Kala, Police Station – Rajpur, District Rohtas at Sasaram. .... .... Appellant (In Cr. Appeal No. 175 of 1998). Versus The State Of Bihar .... .... Respondents (In Both the Appeals). ****** For the Appellants : Mr. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. These two appeals are being heard together and disposed of by the common order and judgment as both arise out of the same order and judgment passed by Sri Singheshwar Prasad, learned 7th Additional Sessions Judge Rohtas at Sasaram in Session Trial No. 90 of 1989. 2 3. The appellants have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 4. The prosecution case as alleged in the fardbeyan by the informant is that in last night at about 12:30 A.M. he was sleeping on 1st floor and his son was sleeping in a room on ground floor. In the night of the date of occurrence the informant was sleeping on first floor and his son was sleeping on ground floor and other family member. Some dacoits entered into his house armed with fire arm. At that time all the family members were sleeping and the informant got up on the cry of his son and asked who is there? Then he saw a light is being lit in the room of his son. Further case is that at that time firing was made on the informant from the courtyard and then the appellants sat down by the side of cot and saw 6-7 persons, two armed with gun and four armed with pistol. He has further stated that the miscreants went in the room of the boy and started assaulting him. He started fleeing away to save his life through tiled Varamdah and then miscreant again fired at him but he managed to flee through hedge of vegetables and went to the roof of his elder brother. Further case is that the miscreants caught hold of his son, brought him in courtyard and commanded to kill putting gun on his chest. Then his aunt came to his rescue to the courtyard and lied upon the child and begged for his life. The miscreants looted the articles breaking open the box. In the meantime there was firing from outside and he heard 3 the sound of one Suresh Tiwary and then they came out. It is stated that Suresh Tiwary disclosed that as soon as on Hulla he came to the Galli, the miscreants fired and chased him but he remained standing near electric pole along with the rifle and remained there by lighting the torch. He has further stated that one Krishna Tiwary disclosed that he made Hulla after going to the village. It is stated that he saw the dacoits in which Keshwar Tiwary with gun, Shailesh Tiwary sudershan Ram were assaulting his son and the person who fired twice was Batohi Singh and others had covered their face so he did not identify. 5. The fardbeyan was recorded at 10:00 A.M. on next day i.e. 07.11.1986 and First Information Report was lodged and thereafter the fardbeyan was lodged and the fardbeyan was sent to the learned Chief Judicial Magistrate on 08.11.1986 after lodging of the First Information Report, investigation proceeded and charge-sheet submitted. The charge framed after the case was committed to the court of Sessions. During the trial witnesses supported the prosecution case claiming to be the eye- witness having identified the appellants in the light of the torch of the dacoits. The witnesses claim they were assaulted but injury report has not been proved. However, the trial court after considering the evidence convicted the appellants as stated above. 6. Learned counsel for the appellants, however, contended that there is delay in lodging the First Information Report and further the occurrence took place at 12:30 A.M. in the mid night. The villagers 4 reached to the place of occurrence just after the occurrence. The informant and the inmates of the house did not disclose the name of the dacoits to the villager. The fardbeyan also does not disclose that witnesses identified the accused nor description who identified whom. The possibility for identification of the accused by the informant and other are bleak. The means of identification has also not been established. It has further been contended that the accused persons are co-villagers having enmity with the appellants and false implication cannot be ruled out. 7. P.W. 1 is the brother of the informant he has stated that at the time of firing he was at the first floor and the firing was being done from the courtyard. He made Halla from his first floor. He saw six dacoits in the courtyard of ground floor itself the identified the appellants in courtyard in the light of the torch lit by the dacoits. However, it is pertinent to mention that identification of dacoits in torch light of the dacoits is very evident of identification and is not reliable and nor worthy of confidence. 8. P.W. 2 is the wife, she has also stated that Batohi, Sailesh and Sudershan took Rishi Kumar his son in the courtyard and the dacoits had not covered their face. However, she has stated in para 3 of her cross- examination that the night was dark and he had no light. However, she has not stated means of identification in which she identified the dacoits. Hence, the identification of the appellant without means of identification 5 is doubtful and though has stated that his son disclosed the name of dacoits but this evidence stood contradicted by evidence of I.O. after the murder case. She has further stated that her son was not treated by doctor but was treated in the house itself. 9. P.W. 3 is Rishi Kumar Mishra, he has also claimed to identify the dacoits and that Sailesh caught hold of him and he identified the dacoits in the torch lit by them and he disclosed his name to his mother and then mother said that he does not say name of the dacoits and however this witness has stated that he did not name Keshwar before the police. 10. P.W. 4 is the informant has stated that he saw from the roof of the house in first floor, the accused caught hold of his son and he had got no light and he identified the dacoits in the light of the torch of the dacoits. Hence, the identification of appellants from first floor to dacoits in ground floor in the light of torch lit by dacoits itself is doubtful. 11. P.W. 5 is the I.O., he has deposed about the description of the place of occurrence, and he has further stated that he found the mark of keeping box but stated that he did not mention it in the case diary and further he did not find the gun-shot firing. 12. Hence, taking into consideration the entire evidence, four witnesses have come to support the prosecution case who is P.W. 1 to 4, they are brother, son and wife of the informant and the informant himself. No independent witnesses either of the neighour or of the 6 villager have come forward to support the prosecution case. The co- villager Suresh Tiwary and Krishna Tiwary came to the place of occurrence with gun but informant did not name the dacoits or appellants and they have also not come to dispose in this case who had the opportunity to see dacoits during dacoity as they had come to place of occurrence along with their gun and fired at the miscreants. 13. P.W. 1 to P.W. 4 claims to identify the appellant. The appellant himself states that he had no torch with him nor his wife had any torch. The wife of the informant has stated in her evidence that the night was dark. However, the prosecution party claims to identify the dacoits in the light of the torch lit by the dacoits and the identification of dacoits by the flash of torch carriage by dacoits itself is doubtful and not worthy of reliance to be believed. 14. P. Ws. 1 and 4 were at the first floor and it has come in evidence that they had hidden themselves as there was firing towards them and they claim to have identified the dacoits who were there in the courtyards on the ground floor and P.W. 4 even manage to flee away through the hedges and trippers and in such circumstance the possibility of identification by P.Ws. 1 to 4 from the first floor in the courtyard does not appears to be possible and the probability of identifying the dacoits appears to be bleak particularly in the light of torch lit by the dacoits and hence the identification by P.Ws. 1 and 4 does not inspire confidence to record conviction. 7 15. The evidence of Susila Devi regarding the identification and further the evidence that P.W. 3 disclosed the name of dacoits to Susila Devi stand contradicted and the evidence of P.W. 3 who is child witness and hence the evidence of child witness is not proper to be relied as the possibility of his being tutored is not ruled out in the fact and circumstance of this case. The child witness has very strong capacity to remember and hence the evidence of this witness not reliable to base conviction on two counts that the means of identification is the torch light and further the possibility by the witness being tutored may not be ruled out. Moreover, from the perusal of the fardbeyan itself, it is apparent that in the entire fardbeyan there is no mention that the witnesses saw the accused persons and identified. 16. However, it is also pertinent to mention that the accused persons are of same village are the co-villager and it does not appears to be proper that they will commit dacoity without concealing their face. However, four witnesses who have found to depose are only the family members. No independent witnesses or witnesses of the vicinity have come to support the prosecution case. The person named in the fardbeyan Suresh Tiwary and Krishna Tiwary have also not been examined as a witness who had come at the time of the dacoity. Hence, having regard to the facts and circumstances, the claim of identification of the appellant in the light of the torch of the dacoits does not inspire confidence and however, the probability of the identification from the first floor also not 8 probable or worthy of confidence and the evidence that P.W. 3 disclosed P.W. 2 the name of accused has been contradicted in the evidence of P.W. 2 itself and the evidence of P.W. 3 the child witness not worthy for reliance on count of the identification, means of identification as well as the is the torch light of dacoits and the possibility of tutoring the witness and hence taking into consideration the entire evidence I find and hold that the prosecution has not been able to prove the case beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court is set aside and hence the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 19th August, 2011. N.A.F.R./Kundan.