Criminal Appeal (SJ) No.104 of 1998 Against the judgment and order of conviction dated 09. 03. 1998 and order of Sentence dated 17. 03. 1998, passed by Shri Awadhesh Kumar Verma, Ist Additional Sessions Judge, Madhubani, in Sessions Trial No. 171 of 1993/ 149 of 1993 . 1. Mishri Yadav @ Mishra Lal Yadav , son of Late Surat Yadav 2. Ram Sunder Yadav, son of Sri Mishiri Lal Yadav. 3. Maheshwar Das, son of Late Dil Chand Das. All residents of Village- Pilakhwar, P.S. Raj Nagar, District- Madhubani. .... .... Appellants. Versus. The State Of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 180 of 1998 Against the judgment and order of conviction dated 09. 03. 1998 and order of Sentence dated 17. 03. 1998, passed by Shri Awadhesh Kumar Verma, Ist Additional Sessions Judge, Madhubani, in Sessions Trial No. 171 of 1993/ 149 of 1993 . Ram Sewak Mukhiya @ Bhutali Mukhiya, Son of Late Mauje Mukhiya, presently resident of Village-Jainagar- Rajputan, P.S. Jainagar, District- Madhubani, originally resident of Village- Pilakhwar, P.S. Rajnagar, District- Madhubani. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. (In CR. APP (SJ) No. 104 of 1998) For the Appellants : Mr. Ajay Kumar Thakur, Advocate. Mr. Ravi Ranjan. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. (In CR. APP (SJ) No. 180 of 1998) For the Appellant. : Mr. Hriday Narayan Harshit, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD 2 Gopal Prasad.J. Heard learned counsel for the appellants and learned counsel for the State. 2. Two appeals have been heard together and disposed of by common order as both the appeals have arises out of same judgment. 3. The appellants have been convicted for offence under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years. 4. The prosecution case as alleged by the informant in the Fardbeyan that the informant Ram Kumar Yadav was sleeping in the eastern room on wooden box. By the side of the wooden box his mother, sister, wife and Bhabhi were sleeping. At about 12 in the mid night he got up on cry of his father about the dacoity, when he get up from sleep then three persons came to him and cover his face and started assaulting by dagger. He anyhow manage to get off the clothes from his mouth. He saw there co-villagers Mishri Yadav, Ram Sunder Yadav and Mahandra and Maheshwar Das, he got injury on his left hand rest on abdomen. He has further stated lantern was burning in the room and they also got torch. There was 10-12 persons in the courtyard. They were litting torch and searching his family members in the room and assaulted them. The 3 further allegation is that three persons assaulted him and get him down from the box and broke open the box and looted away silver as well as golden jewelleries. Thereafter three came out and assaulted his father, mother, sister and brother Ram Kripal Yadav. It has further been alleged on hulla by himself and his family members several people of the village came there when the villagers came all the dacoits flee away to the north in the deep orchard. The further case of prosecution in Fardbeyan that the motive for occurrence is land dispute with Mishri Yadav with his family members since last one and half years. They have claimed 5 and half bighas of land of the informant and in this connection there are several cases going on between them. It is further alleged that he has assaulted him and his family members several times and in this regard case has also been lodged and hence the present occurrence has been done by them due to enmity. 5. On the Fardbeyan, F.I.R. was lodged. During the investigation police apprehended some suspect and conducted T.I.P. in which one dacoit was identified by Ram Kripal Yadav, Budur Yadav and Ram Kumar Yadav and after completion of the investigation, police submitted charge sheet. On the charge sheet cognizane taken. The case was committed to the Court of Sessions. 4 And after commitment charge was framed under Section 395 I.P.C. and trial proceeded. During trial thirteen witnesses were examined. P.W. 3 and 11 are seizure list witness, P.W. 1 and 2 are brother of the informant, P.W. 5 is mother, P.W. 6 is sister, P.W. 7 is Bhabhi, P.W. 8 is wife, P.W. 11 is sharu of the informant, P.W. 9 is the informant himself, P.W. 10, is the doctor, P.W. 12 is I.O. and P.W. 13 is formal witness. P.W. 1, 2, 4, 5, 6, 7, 8 and 9 supported the prosecution case about the factum of dacoity. P.W. 1, 5 and 9 claimed to identify the accused Mishri Yadav, Ram Sunder Yadav and Maheshwar Yadav during the dacoity. P.W. 2, 4 and 9 claimed to identify accused-appellant Ram Sewak Mukhiya in court during evidence and T.I.P. 6. The defence of the accused persons that they are co- villagers. There was prior enmity with the prosecution party and have falsely been implicated due to enmity. The further defence of the appellant Ram Sewak Mukhiya that he is co-villager has got land in the village. He had transferred his land to his uncle Achhya Lal causing annoyance to Kari Yadav, the brother of Budur Yadav (P.W.4) the father of the informant (P.W.9). The land of Kari Yadav is adjoining the said land of appellant Ram Sewak Mukhiya. D.W. 1 the uncle of the appellant Ram Sewak Mukhiya who is 5 resident of same village has deposed that appellant is his nephew and given genealogy showing the appellant to be son of the brother of the common descendent. The appellant in his statement under Section 313 has specifically admitted that the prosecution party knows him since much before the occurrence and hence identification in T.I.P. and court has got no significance. 7. On considering the oral and documentary evidence trial court convicted the appellants on the evidence that witnesses supported the prosecution case and have identified the appellant in the court as well as identified Ram Sewak Mukhiya in T.I.P. 8. The learned counsel for the appellants contended that the identification of the appellants are co-villager and next door neighbour and have been falsely implicated out of enmity is doubtful and means of identification has not been established and witnesses have not stated about specific overt act about the appellants when he identified the appellants and all the witnesses are the family member and no independent witness has come to support the prosecution case and further appellants belong to the same village and has falsely been implicated due to enmity. 9. However, taking into consideration the evidence, though, witnesses have supported the prosecution case about factum of 6 dacoity. However, there are two sets of evidence, one set of evidence for identification of appellants Mishri Yadav, Ram Sunder Yadav and Maheshwar Das and other for identification of Ram Sewak Mukhiya. 10. P.W. 1, 5 and 9 claim to identify Mishri Yadav, Ram Sunder Yadav and Maheshwar Das. P.W. 1, though, in his evidence identified the three appellants Mishri Yadav, Ram Sunder Yadav and Maheshwar Das in court as the persons in the dacoity. However, in his cross-examination attention has drawn with regard to his statement before Police about identification, but P.W. 12, I.O. has contradicted the evidence of this witness in his evidence that P.W. 1 has not stated about identification of Mishri Yadav, Ram Sunder Yadav and Maheshwar Das before him in his statement under Section 161 Cr.P.C. and hence claim of identification by P.W. 1 suffer from contradiction. Hence evidence of this witness is discredited by contradiction and hence not reliable. It is pertinent to mention that contradiction is a mode of discrediting the evidence of a witness. 11. However, P.W. 5 have also claim to identify three appellants and has stated in her evidence in her examination-in- chief that 10-15 persons came in courtyard and entered into her 7 room then she got up and identified Mishri Yadav, Ram Sunder Yadav and Maheshwar Das in room in the light of the lamp. However, in her cross-examination she has stated dacoits crashed the door and door got broken then she saw 12 dacoits in courtyard out of them she identified three whom she has named. Hence this witness in her examination-in-chief claim to identify the three appellants in the room, but in cross-examination she claim to have identified three appellants in courtyard and she has not mentioned about means of identification when she identified the dacoits in courtyard. This witness however, not stated that when she identified the appellants what act of commission or omission were being made by these dacoits when she identified them. Hence identification of this witness becomes doubtful with regard to the identification of three appellants. 12. P.W. 9 is the informant and he has stated that he was in the room in which his mother, sister, bhabhi and wife were also sleeping and he was also sleeping on Sinduk. Dacoits came in room covered his face with towel and tied thereafter he tear the towel then he saw the appellants. He has further stated that dacoits had covered their chicks but he identified by their mouths and identified Mishri Yadav, Ram Sunder Yadav and Maheshwar Yadav. 8 However, the informant claim to have identified, but witness has not stated what act of commission and omission was being done by these appellants when he identified except that they tied his face by towel. However, five persons were sleeping in the room, who are informant, his mother, sister, bhabhi and wife and it is alleged that dacoits assaulted them who are none else than next door neighbour. The appellant, Mishri Yadav is next door neighboiur, but only P.W. 5 and 9 claim to have identified whereas P.W. 6, 7 and 8, sister, bhabhi and wife did not claim to have identified when it has in his evidence that lamp was burning in the room and hence identification of this witness is not worthy of reliance. Moreover, in this case all the witnesses examined are family members and no independent witness of the village has come to support the factum of dacoity. 13. However, three witnesses P.W. 1, 5 and 9 came to have identified three appellants, Mishri Yadav, Ram Sunder Yadav and Maheshwar Das. P.W. 1, 5 and 9 have asserted that there is enmity with three appellants and are co-villagers and Mishri Yadav is next door neighbour and Ram Sunder Yadav is son of Mishri Yadav. However, P.W. 1, 5 and 9 are family members. Hence evidence regarding identification of the appellants and their involvement in 9 crime does not inspire confidence. Particularly when P.W. 9 stated in his evidence that appellants had covered his chicks but open his mouth. However, the dacoity committed by known person, it is hard to believe that dacoits or appellants would not have taken precaution to cover his face and when culprit covered his face there could be no scope for witness to identify. 14. The next set of witness with regard to identification of Ram Sewak Mukhiya by P.W. 2, 4 and 9. P.W. 2 is brother of the informant, P.W. 4, is father of the informant and P.W. 9 is informant himself and three belongs to the same family. Defence of the appellant that he is a co-villager. 15. D.W. 1 Bhadai Mukhiya, a co-villager and in his evidence has specifically stated that Ram Sewak Mukhiya is his nephew and has given the genealogy right from his grand-father to show that Ram Sewak Mukhiya is his nephew belongs to his family as descendent of common ancestor and stated he purchased the land from Ram Sewak Mukhiya along with his brother and has asserted that Kari Yadav is brother of Budur Yadav (P.W.4), the father of the informant (P.W.9) wanted to purchase the same land from Ram Sewak Mukhiya and said land which Kari Yadav wanted to purchase is adjoining his land, but Ram Sewak Mukhiya did not 10 transfer the land to Kari Yadav, so he has falsely been implicated in this case. However, this part of evidence has not been challenged that Ram Sewak Mukhiya is not nephew of D.W. 1, but only suggestion that father of Ram Sewak Mukhiya went to his Sasural and Ram Sewak Mukhiya never lived in the village. Ram Sewak Mukhiya in his statement under Section 313 Cr.P.C. has specifically stated that prosecution party known to him since very long. He used to live in Pilakhbar and also lives at his Nanihar house to visit the village in which there was land of paternal uncle. However, he has stated that there was friendship between his father and Kari Yadav and his Baba had given 1 khata 10 dhoor land to the father of Kari Yadav. Father of Kari Yadav had promised to return this land in exchange of agricultural land. 16. Hence from the evidence of this witnesses, it is apparent that Ram Sewak Mukhiya is of same village and was known to the prosecution party and hence identification of this appellant in T.I.P. has got no significance. Moreover, P.W. 2, 4 and 6 who claim to have identified Ram Sewak Mukhiya had not given any physical feature of the dacoit to whom they claim to have identified and further while identifying the appellant, Ram Sewak Mukhiya has not stated that what act of commission or omission was being 11 performed by this appellant when he was identified during dacoity except evidence of P.W. 9, who claim that this appellant gave dagger blow to his sister, but sister has not come to identify. Moreover, all the witnesses in this case are family members. No independent witness has come forward to support the prosecution case about factum of dacoity or about identification of the accused persons. 17. Hence, taking into consideration the entire facts and circumstances, the appellants are entitled for benefit of doubt and the prosecution has not been able to prove the charges beyond reasonable doubt. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The…24th …August, 2011. NAFR/m.p. ( Gopal Prasad, J.)