Criminal Appeal (SJ) No.408 of 1998 Against the judgment and order of sentence dated 06.11.1998 passed by Shri Rajeshwar Prasad Srivastava, 5th Additional Sessions Judge, Purnia, in Sessions Trial No. 84 of 1993. 1. Saryug Rai, son of Govind Rai, resident of Village-Khunti Dhanaili, P.S. K. Nagar, District- Purnea. 2. Hridai Mandal, son of Bhumi Mandal. 3. Ramdeo Biswas, son of Singheshwar Biswan. Both resident of Village- Chanka, P.S. K. Nagar, District- Purnea. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Hare Krishna Kumar, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 395 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged by the informant, Basudeo Sah, that while the informant after taking meal was sleeping at the western side of his verandah. His father, mother and his wife were also sleeping either in the verandah or in the room situated in 2 the eastern side or in the room situated in the western side. At about 11 P.M. about 10-12 dacoits came there from the western side and entered the courtyard and started assaulting his father of the informant and on cry of his father he got up and found that four miscreants with their face covered in black ganjee and half pant surrounded him and in his torch light he identified Suresh Prasad Mandal, Hridai Mandal, Ramdeo Biswas and Saryug Rai and the four miscreants who were assaulting his father snatched the torch and wrist watch of the informant. In the meantime, the wife of informant got up and opened the door then 4-5 miscreants entered in the room pointed .303 rifle and demanded jewelleries and money. Thereafter, ransack the house and looted away the articles. On hulla neighbourer collected and there was scuffle between the dacoits and neighbourer then the dacoits flee away firing their gun. 4. However, on the basis of Fardbeyan, F.I.R. was lodged and investigation proceeded. During investigation, father of the informant was examined by the Doctor and the Doctor and I.O. has also found articles and after completion of the investigation, charge sheet 3 submitted. Cognizance was taken and case was committed to the Court of Sessions. After commitment, charge was framed under Section 395 against all the appellants and trial proceeded. During trial six witnesses examined out of twelve witnesses mentioned in the charge sheet, six witnesses examined as P.W. 1, Arun Kumar Yadav, P.W. 2, Bishundeo Sah, P.W.3, Garib Lal Sah, P.W. 4 Krishnadeo Sah and P.W. 6 Umesh Prasad Singh. Documentary evidence adduced which are Ext. 1 is the production list a cartridge of .303, Ext. 2 is the Fardbeyan, Ext. 3 is formal F.I.R. After considering both oral and documentary evidence, order of conviction and sentence recorded as stated above. 5. Learned counsel for the appellants however, contends that in the date of occurrence, night was dark and there was no source of identification and the informant in his evidence prior to lit of his torch, the torch was snatched by the dacoits and other witnesses have deposed their identification of dacoits and they were identified in torch light and the accused persons are co-villagers and there was enmity. It has further been contended that, though, it has been submitted that father of the informant was 4 assaulted by the dacoits on which informant got up, but neither the father was examined as witness, though, the father of the informant was said to have been examined by the Doctor, but injury report has also not been proved and Doctor has not been examined. It has further been contended that, though, it is alleged that there was firing and cartridge was recovered from the place of occurrence, but the I.O. has not been examined to substantiate any objective evidence from the place of occurrence and there was no evidence to support the factum of dacoity. Further prosecution case is that accused persons covered their face and hence identification of the appellants is doubtful and hence prosecution has not been able to establish the case. Hence, the appellants are entitled for benefit of doubt because prosecution has not been able to prove the charges beyond all reasonable doubt. 6. Learned counsel for the State however, supported the prosecution case and inspired the prosecution has proved beyond all reasonable doubt and there are five identification and the witnesses have supported the prosecution case. 7. Hence on the respective submissions of the 5 parties, the question for consideration whether the prosecution has proved the case as alleged. However, the prosecution case in the Fardbeyan, when the informant was sleeping then dacoits came and assaulted his father and on cry of his father he got up and four dacoits surrounded him and snatched his torch. Thereafter, dacoits entered into the house and looted the articles. On hulla villagers came and there was scuffle between the dacoits and the villagers and in the said scuffle the accused persons fired. Four accused persons have been identified by the informant. 8. P.W. 5 is the informant. The informant in his evidence has supported the prosecution case in the Fardbeyan. He got up on cry of his father and when he got up he saw four persons were at his cot and they snatched his wrist watch and torch. However, he claimed to have identified the dacoits Suresh Prasad Mandal, Hridai Mandal, Ramdeo Biswas and Saryug Rai in the light of torch. However, in his cross-examination in para 19 that all the dacoits who have surrounded him had covered their face and they snatched his wrist watch and torch and he did not get opportunity to lit the torch. He has further 6 stated that he identified the accused persons from the physical feature of their voice that they were so and so. However, evidence of this witness does not inspire confidence and has changed his stand from time to time could not establish that he identified the dacoits in torch light. However, this witness has accepted in his cross- examination that his torch has taken away prior to lit the torch and he has also accepted on the date of occurrence night was dark. Further accepted that miscreants covered their face and in the dark night he identified is doubtful. It is difficult to identify the four persons at a time in dark night by the torch light when they have covered their face. 9. However, P.W. 1, 2, 3 and 4 have also claimed to have identified the miscreants. They have stated in their evidence that on hulla, they went to the house of the informant and they identified the dacoits in the light of the torch lit by the dacoits. The identification of dacoit in the light of torch lit by dacoit itself suspicious and weak evidence. However, they have stated that accused persons had covered their face. However, none of the witnesses stated that there was scuffle between the dacoits and neighbourer. However, out of twelve witnesses mentioned 7 in the charge sheet, only six witnesses have been examined rest were not examined nor any explanation given for their non-examination. The father of the informant, though, have alleged to have been assaulted by the dacoit causing injury, but neither father of the informant has been examined nor injury report has been proved. Doctor and I.O. have also not been examined by prosecution. 10. In the dacoity case, examination of the I.O. is more important for proving the place of occurrence and to record the objective evidence of the dacoity. However, I.O. has not been examined, though, cartridge recovered from the place of occurrence but has been proved. 11. However, the fact that the accused persons are neighbourer has been accepted by the suggestion that there was enmity due to land dispute between the parties. 12. Hence taking into consideration the facts and circumstance of the case since the witnesses claim to identify the appellants in the light of torch lit by the dacoits and dacoits had covered their face and there is no mention of specific overt act when they identified and the enmity with appellants creates a serious doubt about identification and hence I find and hold that prosecution 8 has not been able to prove the charges beyond all reasonable doubt and hence appellants are entitled for benefit of 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 27th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)