IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.201 OF 2008 Against the judgment of conviction dated 21.01.2008 and order of sentence dated 24.01.2008 passed by Additional Sessions Judge, Fast Track Court-II, Rohtas at Sasaram in Sessions case No.427 of 1993/Trial No.526 of 2003. 1. DINESHWAR CHAUDHARY, Son of Late Bansh Ram, resident of village-Kusumhara, P.S.Suryapura, District-Rohtas at Sasaram, 2. KESHO CHAUDHARY, Son of Late Nanahku Choudhary, resident of village-Ramgarh Tola, P.S.Suryapura, District-Rohtas at Sasaram, 3. BINOD YADAV, Son of Late Bhoda Yadav, resident of village-Larai, P.S.Suryapura, District-Rohtas at Sasaram .... .... Appellants Versus The State Of Bihar .... Respondent For the Appellants: S/Sri Ram Chandra Singh, Jitendra Kumar Singh, Mahendra Prasad Yadav, Shankar Kumar, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. After being charged under Sections 395 and 397 IPC, the three appellants were put on trial in Sessions Trial No.427 of 1993 by the learned Ist Additional Sessions Judge, Rohtas at Sasaram. The trial could not be concluded and the case was kept moving from one Judge to the other, lastly, coming to the file of the Presiding Officer, Fast Track Court- II, Sasaram when the impugned judgment was delivered 2 on 21.01.2008. The appellants were acquitted of the charge under Section 397 IPC, but were held guilty of committing the offence under Section 395 IPC and each of them was directed to suffer rigorous imprisonment for ten years. This is how the appellants have come up before this Court to challenge the judgment of conviction and order of sentence passed upon them. 2. The fardbeyan of P.W.6 Tengari Choudhary is the basis of the prosecution case. It was stated by the informant that while he was lying in his Dalan and was talking to his wife at about 11 P.M. in the night intervening the 24-25th of June, 1990, 5-7 dacoits came and surrounded him. The dacoits were flashing torch lights and after abusing the couple, assaulted him upon which the informant stated as to why he was being assaulted. As soon as the informant had stated the above line, one of the dacoits gave a chhura blow causing injury to him. The informant also picked up a Rami and dealt a blow with that weapon on the head of one of the dacoits as a result of which an injury was caused to the dacoit. The wife of the informant, namely, Dhanwati Devi(P.W.7) also gave a chhura blow and injured the other dacoits. It was stated that a bomb was also detonated by the dacoits causing injuries to P.W.7 and P.W.8 Krishna Choudhary, the wife and son of the informant respectively. The 3 dacoits, thereafter, scaled the northern wall of the house to enter inside it and plundered it for about half an hour. They flashed the torch lights and when they were retreating they fired a shot in the eastern direction. 3. The informant claimed to have identified some of the dacoits which included the three appellants. It was stated that ornaments, utensils, cloth and documents relating to land the value of which was around Rs.2,000/- were taken away by the dacoits. It appears from the very fardbeyan that the statement was recorded by the police in the Primary Health Centre, Natwar, and investigation was taken up by the investigating officer, who did not come to depose in court and as such there is no evidence as to what were the steps taken for collection of evidence or recovery of the theft properties. But, the three appellants and others were named in the FIR itself. They were sent up for trial and that ended in the impugned judgment. 4. Eight witnesses were examined by the prosecution. P.W.1 Ramautar Choudhary, who was the son of the informant along with another son P.W.5 Chhote Lal did not identify any of the dacoits as was the case of the injured son of the informant. P.W.8 Krishna Choudhary also does not appear identifying any 4 one. The other witnesses, like, P.W.2 Nandjee Choudhary, P.W.3 Ram Chandra Choudhary and P.W.4 Ram Narayan Choudhary who were also witnesses to seizure of certain incriminating materials, did not say that they had identified any one, but claimed to have learnt about the names of the dacoits from the informant. P.W.6, the informant had initially named the three appellants on account of having identified them in his very fardbeyan. Similarly, his wife P.W.7 Dhanwati Devi had also claimed to have identified the appellants and other dacoits during the course of commission of dacoity. But, what appears from the evidence of P.W.7 in paragraph-7 is that she stated that the dacoits who had entered into her house had taken sufficient precautions for concealing their identifications. On this score, the evidence of the witness may not be fit to be acted upon. 5. When it comes to appreciating the evidence of P.Ws.6 and 7, who were the only identifying witnesses, I have already stated that the evidence of P.W.7 may not be fit to be accepted inasmuch as the very circumstance in paragraph-6 of her evidence could be making it improbable to identify any of the accused persons. So far as the evidence of P.W.6, the informant is concerned, he appears also sailing in the same boat as does his wife. He was identifying the 5 three appellants allegedly in the light which was generated at the place of occurrence due to the torch lights being flashed, but it was very curious to find him dropping the name of appellants no.2 Kesho Choudhary and when he was categorically stating in paragraph-2 of his evidence that appellant Kesho Choudahry had not come to participate in the dacoity and thereby had not committed any dacoity while he identified the three appellants in dock. P.W.6 had not identified the appellant no.2 Kesho Choudhary. Thus, what I find is that if there was a tendency in the witness P.W.6 of dropping the name of an accused and refusing to identify him in dock after having initially alleged in his fardbeyan that he was one of the dacoits, then there could be every chance that he was prone to making a false statement and in that light such evidence could not be safe to act upon. 6. The falsity of the prosecution evidence may be arising some of other circumstances also when one consider the evidence of P.W.8 Krishna Choudhary who was admittedly injured on account of detonation of explosive device at the place of occurrence by the dacoits, one could find that he was knowing the appellants. Appellants no.1 and 3 who were residents of village Larai has been admitted by P.W.8 as per his evidence in paragraph-8. That particular evidence of 6 P.W.8 clearly indicated that he was quite acquainted with appellants Dineshwar Choudhary and Binod Yadav because he knew as to which village they were belonging to. Appellant no.2 Kesho Chaudhary was the next door neighbour of the informant, hence there could not be any doubt that P.W.8 was not acquainted with him. But, what appears from his evidence in the same paragraph-5 was that he had clearly seen the dacoits entering into his Dalan, but he could not identify any of them. If a person was fully acquainted with the appellants, as his father or his mother was, who also was stating that he did not identify any of 5-7 dacoits who could be the three appellants then it remains in the realm of doubt that the appellants had really been identified. This was the reason that I was holding that the evidence of P.Ws.6 and 7 could not be safe to be acted upon. 7. There is no law to suggest that the accused should plead the defence or suggest a definite story or probability as to why he had falsely been implicated in a particular case. It could be the very circumstances appearing from the evidence which may point out to the court that his implication could be for reasons otherwise than what was really alleged. It could be best known to the informant due to a particular reason, like, carrying some ill-will 7 against a particular person and was, as such, trying to settle the scores against him that he filed a false criminal charge. That appears to be the case with the present set of appellants and considering that I acquit them by giving the benefit of doubt. The appeal is allowed. The judgment of conviction and the sentence passed upon the appellants are set aside. The appellants Dineshwar Chaudhary and Binod Yadav are in custody. They are directed to be released forthwith, if not wanted in any other case. The appellant Kesho Chaudhary is on bail. He shall stand discharged from the liabilities of his bail bonds. Patna High Court, Dated, the 30th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)