1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.486 of 2006 Against the judgment of conviction and order of sentence dated 17.6.2006 passed by the Additional Sessions Judge, Fast Tract Court 1, Buxar, in Sessions Trial No. 315 of 2006. - - - - 1. Main Paswan son of late Nagina Paswan 2. Jangleswar Paswan, son of Deoraj Paswan, residents of Village Khairhi, Police Station Natbar, District Rohtas .... .... Appellants Versus The State Of Bihar .... .... Respondent Appearance : For the Appellants : Shri Ajay Mishra, Amicus Curiae For the Respondent : Shri Md.Arif, A.P.P.. P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The appellants were found guilty by the learned Presiding Officer of Fast Track Court No.I, Buxar, on conclusion of the trial of Sessions Trial No. 315 of 2006 by judgment dated 17.6.2006 of committing the offences under Sections 395 and 397 of the Indian Penal Code and after being heard on the sentence on the same day, they were directed to suffer rigorous imprisonment for seven years each under Sections 395 and 397 of the Penal Code. The appellants have brought into question the findings on the basis of which their conviction was recorded and the sentence against them was passed. 2. Undisputedly, a dacoity was committed in the house of P.W. 1, the informant of the case, in which firearms and other dangerous weapons were used as a result of which the informant and his wife were badly injured. The informant was taking his wife to Govt. Hospital, Buxar for treatment on 4.6.2006 when he met P.W. 4 S.I. Sakaldeo Paswan who enquired from the informant about the reasons of his and his wife being 2 injured and on being told that it was on account of being assaulted by the dacoits and further that he had two dacoits in his custody along with the recovered booties and, as such, both P.W1 and his wife P.W. 2 Chandrawati Devi were asked to accompany him up to the Police Station where they were shown the two appellants and as per the informant, his wife and P.W. 3 the articles were identified as belonging to the informant which were taken away by the dacoits during the course of commission of the offence. 3. This is how the whole trial was taken up by framing charges under Sections 395, 397 and 412 of the Indian Penal Code. The witnesses, nine in number, were examined out of whom P.W. 9 was a formal witness who has proved the writing of the F.I.R. to be that of Shri Ramand Singh, the Officer-in-charge of Buxar Police Station. P.W. 8 Dr.Anil Kumar Singh had examined the injureds and issued the injury reports Exts. 4 and 4/1 which were the injury reports of the informant and his wife, P.Ws. 1 and 2. The other witnesses including the informant and his wife testified to the factum of commission of dacoity in the house of P.Ws. 1 and 2, the assault wielded by the dacoits on P.Ws. 1 and 2 so as to causing injuries to them and plundering of the house for taking away the belongings of the couple. There does not appear any doubt that a dacoity had really been committed in the house of P.Ws. 1 and 2. But, that could not be the sole finding upon which the accused who had been put on trial could be convicted and sentenced to any term of imprisonment. There has always to be a definite finding based on acceptable, admissible evidence regarding identification of the participants in the occurrence of dacoity besides the clear evidence of identification of the booties that those were plundered 3 during the commission of the same occurrence. 4. Except the evidence of P.W. 4 that he had arrested the two persons who were coming from the railway station on a rickshaw carrying certain luggages which, ultimately, were found to conceal inside them some articles or clothes which were subsequently identified by P.Ws. 1 and 2 to be belonging to them, there is no evidence that the informant or any material witness, like, P.W.2 and others had identified the appellants while participating in commission of the offence on account of their having committed any particular act. What I mean to say is that there is complete lack of evidence as to in what connection the appellants were identified, whether they were seen while assaulting the injureds, whether they were seen frightening the villagers or whether they were flashing torch light or whether they were picking up articles so as to be removed. The evidence on these aspects of the occurrence regarding identification of the culprits in a particular connection is completely absent. It is true that P.W. 4 and other witnesses have stated that the two appellants were in the police lock up and they were shown to P.Ws. 1 and 2 and were told that those were the dacoits who had plundered the house of P.ws. 1 and 2 and had injured them, but the evidence of the two witnesses, i.e., P.Ws. 1 and 2 that they had seen each of them during their participation in commission of the offence is completely lacking. It appears that they were purposely persuaded by P.W. 4 to tell that the two appellants were the persons who were the real culprits who had plundered their house and the articles which had been taken away indeed belonged to them. 5. Rule 236 of the Bihar Police Manual lays down the procedure as to how identification of the culprit could be carried out. It does not 4 mention anywhere that Magisterial supervision could be necessary for correct identification of the booties of a dacoity but certain specific guidelines are stated in that part of the Rules and those are if the articles are branded articles or if there was any specific identification mark already existing on them then the identification of those articles even at the Police Station or at any ordinary place by the persons to whom those articles belonged to could be sufficient evidence on identification of those articles. Here, in the present case, the evidence is completely absent that those articles were having any specific identifying marks which were existing prior to the same being removed or any specific sign was put by either of the two witnesses, i.e., P.Ws. 1 and 2 on them so as to marking them as of their possession. 6. It appears from the reading of the judgment, which is too uncertain on the discussions of the evidence, as if there were no material evidence to point out that the informant and his wife could be certain about the looted articles being their. There arecouple of reasons for rejecting the findings of the lower court on the identification of the articles. The F.I.R. was not containing any details as to what articles or ornaments were looted away by the culprits and there was no description of the same in the evidence of P.Ws. 1 and 2 that due to particular reason or due to presence of identification marks they were able to identify them as their own. P.W. 2 Chandrawati Devi had given the details of the articles with their description as properties which had been plundered or taken away. Thus, I find a complete lack of evidence that the articles, which were recovered from the possession of the appellants, belonged to P.Ws. 1 and 2. 5 7. It is true that a dacoity had been commkitted in the house of P.Ws. 1 and 2. It is also true admitted that both P.Ws. 1 and 2 were assaulted and beaten up so much so that they persons were bearing injuries as per description of P.W. 8 Dr. Anil Kumar Singh, but that by itself is no evidence to record conviction of any person who could be arrayed as an accused, even as a suspected accused by the police. The evidence has to be clear besides being cogent. When it is alleged that it was an act of a particular person then the act must be clear so as to connecting that person to the commission of the offence. That not being the position of evidence in the present case, I find that the judgment of conviction and order of sentence passed by the learned trial court were completely baseless and cannot be justified on that basis. 8. In the result, the appeal is allowed, the judgment of conviction and order of sentence passed against the appellants are hereby set aside and the appellants are acquitted. The appellants are in custody. They are directed to be released forthwith, if not wanted in any other case. 9. Before I part with the present judgment, I must record my appreciation of the assistance rendered by Shri Ajay Mishra whose name was not appearing as counsel in respect of the present appeal, but in absence of the counsel for the appellants who were not appearing in spite of their names appearing on the daily cause list since long, the Court requested Shri Mishra to assist it. and he accepted to offer his assistance to this Court and assisted wonderfully so as to allowing this Court to dispose of the present appeal. In the fitness of things, it is desirable that Shri Mishra must be paid one fee for arguing the present appeal which shall be paid to him by the Patna High Court Legal Services Committee and for 6 that purpose, let a copy of first and last pages of the judgment be handed over to Shri Mishra. ( Dharnidhar Jha, J.) Patna High Court The 8th July, 2011 Kanth/.A.F.R.