IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.516 of 1989 ===================================================== Sheojee Tanti (Sharma), Son of Late Chnnilal Sharma (Tanti), resident of village-Jhapra tola, P.S.-Saharsa, District-Saharsa. .... .... Appellant Versus The State of Bihar .... .... Respondent ===================================================== Appearance :- For the Appellant : Mr. Vivekanand Singh, Advocate. For the Respondent : Miss Shashi Bala Verma, APP. ===================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH) ********** The sole appellant has been convicted for an offence under Section 396 of the Indian Penal Code and has been sentenced to undergo R.I. for life by the judgment and order dated 27.7.1989 passed by 3rd Additional Sessions Judge, Saharsa, in Sessions Trial No. 94 of 1987. 2. The prosecution case as per the fardbeyan (exhibit-3), which was lodged by Kameshwar Yadav (PW.-2) is that on the night of 8.6.1985 at about 8:00 a.m. when he was sitting in the room outside of his house about 20-25 unknown persons forcefully entered, four of them held the informant and tied his hands and feet with Lungi, the rest entered into the house and went in the “courtyard”. While doing so, they asked the informant as to where was the son of Saryoog Driver. The informant being the son of Saryoog Driver hid this fact and said that Saryoog Driver was out of station and his elder son has not returned from duty. The miscreants then entered in the courtyard and after about 20 minutes, the informant heard a gunshot fire. The miscreants then came out with 2 certain articles and ran away. In the torchlight, electric light available, informant has seen the miscreants and could identify the miscreants, if shown again. 3. In the fardbeyan, it is further stated that when the informant went in the courtyard, his uncle, Sumrit Prasad Yadav (P.W.-1), who was in the courtyard disclosed to him that the miscreants had shot Ramphal Yadav, who had just entered the house, thinking he was Saryoog Yadav. Ramphal Yadav is cousin of Sumrit Yadav (PW-1). The informant in the fardbeyan itself strongly suspected that this incident was at the behest of his agnate Ramjee Yadav with whom there was land dispute and the miscreants were looking for some sale deeds and registration papers of some land and uncle also disclosed that the miscreants had removed some ornaments of ladies and taken away. The injured Ramphal Prasad Yadav was sent for treatment. Two empty cartridges were found at the place of occurrence. The miscreants are also alleged to have taken away Rs. 1900/- in cash from informant’s house. They also took away other articles from the house details of which the informant claimed to supply later on after verification. Upon this, the case was registered under Section 395/120B IPC and investigation was taken up. 4. In course of investigation, the appellant, who had surrendered in another case and had been remanded to judicial custody, was remanded in the present case on 24.6.1985 and was put on T.I. Parade on 16.7.1985. It may be noted that in the meantime the injured Ramphal Prasad Yadav, being the uncle of the informant, died in course of treatment. He had been shot in course of the alleged dacoity. 5. In the Test Identification Parade which was conducted by the Judicial Magistrate charge sheet witness Dilip Yadav failed to identify the appellant but P.W.-1 Sumrit Yadav, who was in the courtyard when the 3 miscreants entered there and who had disclosed to the informant that some of the miscreants had removed jewelleries from lady, managed to identify the appellant. He disclosed to the Magistrate that in course of the dacoity one of the miscreants had pointed firearm at his chest and that is how he could identify the miscreants. Upon this identification, charge sheet as against the appellant was filed. It may be noted here that the informant was not taken for the T.I. Parade and, as such, has not identified the appellant. 6. In course of trial the prosecution examined five witnesses. P.W.-1, as noted above, is Sumrit Yadav, the uncle of the informant and apparently the cousin of the deceased Ramphal Prasad Yadav. He identified the appellant in the T.I. Parade. P.W.-2 is the informant, Kameshwar Yadav, whose agnate Ramphal Prasad Yadav was shot dead. He was not taken for the T.I. Parade and, as such, has not identified the appellant. P.W.-3 is the Investigating Officer. P.W.-4 is the Judicial Magistrate, who conducted the T.I. Parade and P.W.-5 is an Advocate Clerk, who has proved the post mortem report. 7. The defence examined 2 witnesses. D.W.-1 Suresh Kumar @ Maheshwar Yadav is none else but the son of the deceased Ramphal Prasad Yadav. D.W.-2 is Tripurendra Pandey, the Press Reporter. 8. The fardbeyan has been proved and marked as exhibit-3. F.I.R. is exhibit-6, T.I. Chart is exhibit-7, Post mortem report is exhibit-8. The defence has proved exhibit-A, the certified copy of the voter list. The defence case was that the appellant lived in the same neighbourhood. He was known to both the informant and his uncle from before, yet they did not name him. He had land adjacent to the land of P.W.-1 Sumrit Yadav, the uncle of the informant. He was falsely implicated only to divert the case from initial story of dispute between agnates. Further, as one Police Officer, Tarni Prasad got involved in the case only 4 to implicate the appellant, as appellant is alleged to have ran away with the daughter of the said Tarni Prasad, a policeman. The appellant was taken on remand from another case and after 22 days, put on T.I. Parade and wrongly identified by P.W.-1. There were two persons who participated in the T.I. Parade, only one identified the appellant and the other identified another person, not connected with this case. He identified one Hashim Khan who was not suspected in connection with the present case. 9. The prosecution through P.W.-1 established the factum of dacoity, the factum of shooting dead Ramphal Prasad Yadav. P.W.-1, as per F.I.R. itself, has disclosed to the informant that some of the dacoits were removing ornaments from ladies and that he had seen one of them shot Ramphal Prasad Yadav, thinking him to be Saryoog Yadav. He further stated that dacoits were asking for papers. These facts are there in the fardbeyan itself, but in his deposition before the court, he improves his story and adds that one of the dacoits pointed a pistol at his chest and threatened. This is how he was able to identify the appellant. This is not there in the F.I.R. In his lengthy cross-examination, he admits that he had seen the house of the appellant for over last ten years though, could not name his father and knew him since long ten years. 10. When P.W.-2, the informant comes to depose, he denied the suggestion that he knew the appellant from long before. He also denied the suggestion that appellant was a resident of the same ward in which his house was situated. He has admitted the fact that deceased Ramphal Yadav was brother of the Ramjee Yadav, one of his agnates with whom he had long standing land dispute. He has also admitted that in one of the case his agnate Ramjee Yadav and Ramphal Yadav were on one side and his father was on the other side. He has denied the fact that that in the F.I.R. he had suspected hands of Ramjee Yadav in 5 the incident. 11. The I.O. P.W.-3, on the other hand, has admitted that the informant had stated in fardbeyan that he had dispute relating to land with Ramjee Yadav. In his further statement, he had admitted that he had dispute relating to land with deceased, Ramphal Yadav. He had suspected hand of son of Ramphal Yadav in the alleged offence as he might have hired criminals to eliminate the informant and his father. The criminal hired by the son of deceased killed Ramphal Yadav treating him to be Saryug Prasad Yadav (father of the informant). The I.O. has also admitted that the informant disclosed him that the miscreants decamped with documents relating to ongoing land dispute with Ramjee Yadav. The I.O. in cross-examination admitted that he neither arrested the suspect agnate nor took any step to search his house. The I.O. has expressed his inability to say as to whether the informant and the appellant were resident of some municipal ward. The I.O. has further admitted that nothing stolen or incriminating could be seized or recovered from the house of the appellant. The I.O. has not stated a word regarding the fact as to how and why the appellant was made accused in the case in the first place. 12. When we see this with deposition of D.W.-1 Suresh Kumar @ Maheshwar Yadav who is none else but the son of the deceased and Lecturer in a local college, he clearly states that the appellant was known to the family from before. He further admits that appellant and P.W.-1 Sumrit Yadav have land adjacent to each other. Father of the appellant tilled their land as well. 13. Learned counsel for the appellant rightly submits that if these three depositions are taken together, it would be abundantly clear that appellant was known to everybody from before which fact was being concealed by the prosecution and if that were so, then he ought to have been named in the F.I.R., 6 which he was not. If independent deposition of P.W.-1 P.W.-2 and D.W.-1 are taken together then, it is clearly a case of false implication. He further rightly submits that false implication clearly stands established from the examination of the I.O. when he is questioned, as to how he came to know about involvement of appellant, he admits no material with him. P.W.-1 was known to the informant from before can also be gathered from the fact that in cross-examination he admits that Tarni Prasad, a Policeman was his neighbour. His daughter had eloped with the appellant for which a case was instituted. Though, he denies suggestion that at the behest of Tarni Prasad the appellant was implicated in the present case but this much is clear that the appellant was known to him from before and thus the identification of appellant by him in T.I. Parade is of no significance. 14. We may also notice that in the fardbeyan itself, the specific case of the prosecution was that it was a dispute between some agnates. One of them being specifically named that might have led to the incident because it was unusual for dacoits to ask for specific papers in course of dacoity. 15. We would further notice that though P.W.-1 had enough time to talk with P.W.-2, the informant, before the fardbeyan was lodged yet he had not disclosed that one of the dacoit had pointed his firearm at the chest of P.W.-1 clearly disclosing his identity. 16. Learned counsel for the appellant has further rightly submitted that when the appellant was well-known to the prosecution party from before, it is highly improbable that he would have been there without trying to conceal his identity, if, in fact, he was there. 17. Having, thus, gone through the evidence, we find that save and except this solitary identification where the appellant was identified by P.W.- 7 1, the appellant was not identified by any other witness. We do not think that such a tainted identification by itself is sufficient to convict the appellant. 18. We may also notice that right through the defence case was clear that he was being falsely implicated. Clear suggestions were made to P.W.-1 that they were neighbours and he was falsely implicated. Then, we come to the evidence of D.W.-1, the deceased’s son, he admits being neighbour being known and other facts. Then, if we look to the statement of accused under Section 313 Cr. P.C., he clearly discloses that they lived in the nighbourhood and they are known to each other and he has been falsely implicated because he tills the prosecution party’s land as well and his land were adjacent to them. 19. In view of the aforesaid facts, we are unable to sustain conviction of the appellant. The prosecution has failed to prove the charge beyond reasonable doubt. Accordingly, we acquit the appellant and discharge him from liabilities of bail bonds. 20. The appeal stands allowed. Patna High Court, Patna 16th September, 2011 Sanjeet/NAFR. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)