CRIMINAL APPEAL No.73 OF 1993 1. Shiv Chandra Sah, Son of Bisheshwar Sah 2. Sajan Sah, Son of Karan Sah, Resident of Village- Gobarsitha, P.S. Bishanpur, District-Darbhanga 3. Ram Chandra Sahni, Son of Mattuk Sahni, resident of Village-Madhopur Tola, Gobbar- Sitha, P.S. Bishanpur, District-Darbhanga --------------------------------------------(Appellants) Versus THE STATE OF BIHAR ----------------------------------(Respondents) ---------- Against the Judgment of conviction and order of Sentence dated 16.2.1993 passed by Sri S.Rahman, 1st Addl.Sessions Judge, Darbhanga in S.T.No.98of 1990/31 of 1990 arising out of Bishanpur P.S. Case No.43 of 1989 ---------- For the Appellants: Mr. Faruque Ahmad Kha, and Mr.Rizwanullah Kha, Advocates For the State : Mr.Jharkhandi Upadhaya, A.P.P. ---------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash,J The appellants have been convicted under Judgment dated 16.2.1993 by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.98 of 1990 /31 of 1990 for offence under Section 395 of the Indian Penal Code and sentence to R.I. for seven years. 1. The case of the prosecution is that in the night between 6th & 7th of April,1989 , a dacoity was convicted in the house of one Ram Badan Mishra by 10-12 unknown dacoits. - 2 - Appellant no.1,Sajan Sah is said to have been identified by voice by one Dinesh Mishra, who has not been examined but Appellant nos.1 and 3 were not named in the First Information Report. However, during the investigation, certain materials were collected against the present appellants and chargesheet were submitted and they were put on trial having been charged for offence under Section 395 of the Indian Penal Code. 2. The prosecution in all examined 12 witnesses, out of whom P.W.12-Chandrama Singh is the Investigating Officer of the case, P.W.11-Raj Kishore Chaudhary , the doctor who examined the informant and other injured P.W.9-Ram Badan Mishra and the informant, whereas P.W.10 is the son of the informant. P.W.1 Ram Briksh Mandal , P.W.2 Bechan Mishra, P.W.3 Bisheshwar, P.W.5 Ram Binod , P.W.6 Munshi Prasad, P.W.7 Damodar Mishra and P.W.8 Ram Prabodh Mishra are witness on the point of occurrence. 3. The simple arguments of the appellants is that the factum of the occurrence is not denied but the identification and the implication of the present appellants is under serious challenge. The admitted position is that the appellants were the co-villagers of the informant and also labourers of the informant - 3 - and contention is that they had been falsely implicated on account of wage dispute between the parties. The further submission is that the appellants being well-known to the informant were expected to have been named in the F.I.R., if they had participated in the occurrence but that not being done. Any subsequent materials collected against them was nothing but an after thought to purposely implicate the present appellants. 4. The prosecution has vehemently argued that it has discharged its duty in proving its case beyond all reasonable doubts and once the witnesses have stated in the court that the appellants were involved in the occurrence even if there was a wage dispute between the parties the implication was enough to convict them for offence under Section 395 of the Indian Penal Code. 5. On going through the evidence adduced on behalf of the parties there is no doubt that the appellants were not named in the First Information Report and subsequently named by witnesses who did not disclose the names when the First Information Report was instituted. This casts a serious doubt upon the prosecution case. A number of documents have also - 4 - been proved by the parties and it is an admitted position that proceeding Section 107 Cr.P.C. was going on between Bhumhars of the Village and Mallah Community , to which the present appellants belong. When the prosecution case is viewed from the prospective of enmity between the parties, an extra cautious approach in evaluating the evidence of the prosecution cases has to be applied. Moreover, from the First Information Report itself, it is apparent that the informant has stated that he came to know about the participation of appellant Sajan Sah from one Dinesh Mishra but does not speak a word against the rest . The said Dinesh Mishra has not been examined during the trial. The undisputed position is that the appellants name was disclosed only later on as an after thought . In the present case, it also appears that no independent witness has been examined and the participation of P.W.6 in the Test Identification Parade and identification of appellant Shiv Chandra Sah, being a co- villager has absolutely no meaning.. P.W.5, who has been examined on the point of identification of the present appellants while retreating after the dacoity was also expected to have disclosed the names to the informant and that not having been done at the initial stage his evidence is not worth reliance . Any - 5 - subsequent statement made by him has absolutely no validity. Similarly, the evidence of P.W.7-Damodar Mishra is untrustworthy for the same reason. The appellants in the statements under Section 313 Cr.P.C. have specifically asserted that they were falsely implicated on account of previous enmity and they were labourers of the informant . The further contention of the appellants that no recovery of any article after the dacoity was detected from the house or from their possession, which would further the cause of the prosecution is also tenable and in the facts and circumstances of the case a very important factor to be considered. In the result, the appeal is allowed and the conviction and sentence of the appellants is set aside and they are discharged of the liability of the bail bonds. ( Anjana Prakash, J) Patna High Court,Patna Dated : the 12th October,2009 Nawal Kishore Singh/NAFR.