Criminal Appeal (SJ) No.53 of 1996 **** Against the judgment and order, dated 18.01.1996, passed by Shri N.N.Shahi, Additional Sessions Judge, II, Nawadah, in S. Tr. No. 13 of 1995/4 of 1996 **** Baigan Turiya, son of Bhola Turiya, resident of village Aktara, P.S. Govindpur, district Nawadah .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Rudal Singh, Adv. For the Respondent .. Mr. Parmeshwar Mehta APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged in the fardbeyan that while informant was sleeping in verandah then at about 12 in the night, two persons came in which one was co-villager and the second persons pointed pistol and asked to let the door open and then he opened the door, thereafter, 6-7 dacoits entered into the house and threatened to keep mum otherwise they will bombard and it is alleged that the 2 dacoits taken over the brass utensils, like tasla and utensils of metal like thali, lota etc., clothes, sarees and jewellery. It is alleged that when the dacoits reside then they make hulla, several people collected and they chased the dacoits, but, the dacoits fled away. The motive of the occurrence alleged that while grazing a she goat had scuffled with Jagdish Turia and he has threatened that he will get dacoity committed in his house in the night and, hence, alleged that he has doubt that Jagdish Turiya has got the dacoity committed by calling the persons. 4. On the statement of the informant, Misri Choudhary, the first information report lodged and after the investigation charge sheet submitted, cognizance was taken and the case was committed to the Court of sessions and after commitment the charge framed and trial proceeded. 5. During trial four witnesses were examined, who are P.W. 1, Basanti, P.W. 2, Sunita Devi, P.W. 3 Misri Choudhary, the informant. He has stated that while he was sleeping along with his wife and children then Baigan Turiya came and asked to open the door pointing his pistol and then the accused persons entered the house and committed dacoity and while resiling he took the nose pin of his wife and he identified him in the light of diya. However, P.W. 1 has stated that while she was going to sleep and his son and others were sleeping then one thief came and demanded the articles, whose name is Baigan Turiya. She has, further, stated that he has tied towel in her mouth so she has stated that she did not identify. She has, further, stated that the accused persons come to commit dacoity in the house and after the 3 accused persons fled away then she made hulla. P.W. 2 has stated that on the sound of hulla she opened the door and she also claimed to identify the appellant. However, three witnesses, examined, are the family members. P.W. 4 is the investigating officer. 6. However, the defence has suggested that no occurrence has occurred and a false case has been instituted for the reasons of the grazing of the field by the goat of Jagdish Turiya for which there was scuffle and the witnesses have deposed falsely and nothing has been recovered from the possession of the appellant. Considering the oral and documentary evidence the trial Court held that since witnesses deposed the involvement and identification of the appellant during dacoity and, hence, convicted. 7. However, taking into consideration the evidence the informant says that the accused persons came and demanded and asked to open the door. P.W. 1 is the wife of the informant said that she came at the time when she was not slept and Baigan Turiya demanded todi and when she refused that there is no todi. She has, further, stated that he has covered his face, however, if he has covered his face then the identification becomes doubtful. Moreover, there is contradiction in the evidence of P.Ws. 1 and 3 whereas P.W. 3 says that wife was sleeping whereas wife says that she was going to sleeping. More over, the three witnesses examined are all the family members, no independent witness has come forward to support the prosecution case about the dacoity though the evidence of the prosecution that after the commission of dacoity, on hulla several people came, but, none has 4 come to support the prosecution case. The investigation also did not find anything supportive nor any objective found in the evidence of the investigating officer about the occurrence and prosecution has admitted about the quarrel with regard to the grazing of the goat of Jagdish Turiya. However, no looted articles have been recovered. 8. Hence, having regard to the facts and circumstances, since, all the witnesses are the members of the family, no independent witness has been examined the investigating officer also did not find any objective of the finding of the dacoity nor the articles recovered, hence, the prosecution has not been able to prove the charges and the evidence of identification also becomes doubtful when P.W. 1 has stated that the said Baigan Turiya had covered his face and, hence, I find and hold that the appellants is entitled for benefit of doubt as the prosecution has not been able to establish the case beyond reasonable doubt. 9. Hence, the order of conviction is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court The 01st day of August 2011, N.A.F.R., S.A.