1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.86 of 2007 - - - - Against the judgment of conviction and order of sentence dated 22.12.2006 and 23.12.2006, respectively, passed by the Additional Sessions Judge, Fast Track Court –I, Jamui, in sessions Trial No. 242 of 1994. ===================================================== 1. Geno Tanti , son of Sasu Tanti, resident of Village Bela (Tola Harpeti), Police Station Khera, District Jamui 2. Narayan Tanti, son of Harkha Tanti, resident of Village Bela(Tola Harpeti) Police Station Khera, District Jamui 3. Kishun Manjhi, son of Chaboo Manjhi, resident of Village Bela, Police Station Khera, District Jamui 4. Nawal Tanti, son of Kheeran Tanti, resident of village Bela, Police Station Khera, District Jamui .... .... Appellants Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellants 1 and 2 : Shri Om Prakash Pandey, A.C. For appellants 3 and 4: Shri Mritunjay Kumar, Adv. Shri. Umesh Prasad,Adv. For the Respondent : Shri Ajay Mishra, A.P.P. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE DHARNIDHAR JHA) - - - - The present appeal is directed against judgment dated 22.12.2006 passed by the Presiding Officer of Fast Track Court-I, Jamui, in Sessions Trial No. 242 of 1994, by which all the four appellants were found guilty of committing offence under Section 395 of the Indian Penal Code. By order dated 23.12.2006 each of the appellants was directed to suffer rigorous imprisonment for seven years on the said account. 2. It appears that a dacoity took place in several houses including that of P.W. 5, i.e., Dwarika Ravidas in the night intervening the 6th and 7th of December, 1988. As per the allegation, the accused persons jumped into 2 the courtyard of the house of P.W. 5 and then started plundering the house by directing the inmates to keep a complete silence. During the course of dacoity, the informant P.W.5 claimed having identified the four appellants and others. It was stated that articles and cash as indicated in the fardbeyan were taken away by the dacoits. 3. The above prosecution case is contained in the fardbeyan of the informant P.W. 5 on the basis of which the F.I.R.( Ext.1) of the case was drawn up and the same was investigated into which resulted into submission of the charge sheet and, ultimately, into the trial of nine accused persons out of whom Lalu Tanti and Bishun Tani died during the pendency of the trial, thus, leaving only seven accused on trial. By the judgment impugned herein, the learned trial Judge acquitted accused Sarwan Tanti, Mishri Tanti and Karu Tanti while found the present set of appellants guilty of committing the offence under Section 395 of Indian Penal Code and, ultimately, passed the order of sentence as indicated earlier. 4. The defence of the appellants was of false implication on account of some dispute on payment of wages as the appellants were, admittedly, artisans who used to do repair of the tiled roofs of the houses in the rural area of the District of Jamui. 5. After having taken me through the evidence of the six witnesses out of whom P.W. 6 is a witness of formal character having proved the F.I.R., it was contended by Shri Om Prakash Pandey, learned Amicus Curiae appearing on behalf of appellant Geno Tanti and Narayan Tanti that P.Ws. 1, 2 and 3 have not identified any of the appellants, of course, P.W. 2 claimed having identified some accused who do not appear having 3 any concern with the present appeal. As regards appellant Geno Tanti, he has been identified by P.Ws. 4 and 5 who were nephew and uncle between them and appellant Narayan Tanti has been identified by a solitary witness P.W.5, the informant. I was, thereafter, referred to the evidence in paragraph 7 of this witness to point out the absurdity which was making this witness not competent to identify any of the appellants. The other absurdities in the prosecution case like the lack of source of identification and the development in that behalf made by P.W. 5 in his deposition in court was also pointed out to me. In the above light, it was submitted by the learned counsel appearing on behalf of the appellants that there was no evidence as to how the appellants were identified. There was also no recovery from the possession of the appellants, rather P.W. 5 in paragraph 3 of his evidence stated that he found his four boxes by the river side in the morning following the night of occurrence, but still the court below accepted the evidence of recovery and identification of the articles without there being any Test Identification Parade chart or any evidence to probabilise that part of the prosecution case. The Investigating officer was not examined and, as such, it remained to be established that indeed there was any dacoity committed in the house of P.W. 5 whose evidence further indicates that the houses of other persons were also plundered but those persons also did not come forward to support that. 6. Initially, as appears from the trial court judgment, the appellants were not challenging the factum of dacoity but as may appear from the contentions of learned counsel for the appellants they appear now challenging the commission of dacoity also, particularly, in the house of P.W. 5. That contention has been raised on account of non-examination of 4 the Investigating Officer and further in the light of the evidence of P.W. 5. I was taken to paragraph 3 of the evidence of P.W.5 in which he stated that he did not come out of his house for getting the report lodged in respect of commission of the dacoity in his house in that particular night and he remained confined to his house. However, he left his house early in the morning following the night of occurrence and went to the Police Station with Chaukidar and Dafadar( both of them not examined) but the Officer-in-charge of the Police station refused to lodge any report and, as such, he came back to his house. Subsequently, the Police Officer came to his village and recorded his fardbeyan. The contention was that the police at all was not certain about the claim of identification of the accused, else, why the police was so reluctant to record the case on the statement of P.W. 5. It was attempting to get satisfied about the commission of dacoity and as the evidence regarding commission of dacoity in the house of P.W. 5 was not satisfactory that the Investigating Officer was not turning up to depose in the case. This is further indicated by the fact that it was not only that the house of P.W. 5 had been plundered by the dacoits, rather, the houses of other persons had also been plundered and looted, but none of those persons was coming forward to complain or to testify to the commission of dacoity. This raises a probability that the informant could have any other motive for implicating the present set of appellants. 7. The next contention in the above connection was that P.W. 5 has himself admitted in his evidence that the present set of appellants were labourers who used to visit his village. Some of the witnesses have said that they used to visit their Village to sell milk, curd or even illicit liquor but some of them have stated that they were labourers and used to do 5 labour for getting wages. It has also been admitted that they used to repair tiles of the roofs of their houses. As such, the acquaintance was there and the acquaintance as appears from the evidence might have been for a very very long time. This could be the reason that if they had been identified they had been named in the F.I.R. But, the evidence of P.W.2 in paragraph 6 indicates that it was a pitch dark night and further, that the appellants had smeared their faces with black and red colour which could make it impossible for someone to identify them. As such, the witnesses, like, P.Ws.1, 2 and 3 were not picking up the identification of the four appellants properly. If P.W. 4 could be identifying the appellants there was no reason why the witnesses like P.Ws. 1 and 2 could not have identified. It was suggested that the appellants had been falsely implicated by the informant on account of the dispute as regards payment of wages to the appellants. 8. There was no recovery of any articles. There was no evidence in that behalf produced by the prosecution. The best evidence could be by examining the Investigating Officer but he was not examined. The minimal evidence on which the court below believed the recovery of articles was that P.W. 5 in paragraph 3 of his evidence stated that when he left out his house in the morning following the night of occurrence, he found his four boxes by the river side. If this could be the evidence on recovery then the claim of the prosecution that the recovered articles were identified by the witnesses at the Police Station appears not acceptable. It was contended further in the above connection that there was no Test Identification chart regarding identification of the articles produced and no Police Officer has come forward to say that he recovered the articles 6 and further that he invited the witnesses to identify them. 9. It was finally contended that there is complete lack of evidence as to in what connection the appellants were detained. Mere evidence of a witness that he had identified a particular person in course of dacoity may not be sufficient to fully establish his identification. The proof of identification is that if the evidence on identification has to be accepted then the witness must state that he had identified a person doing some particular act in course of commission of the offence. What is meant by it is that a witness must state that a particular accused was identified by him during the course of commission of the offence either assaulting someone or was picking up articles for taking them away or was keeping guards so that no one could intervene in commission of the dacoity or further, it was in the light of torch which was being flashed by the accused or in the light being flashed by any of the inmates, he identified him. Without evidence on these aspects as regards identification of the appellants, it could never be sufficient for holding that the prosecution has succeeded in establishing the identification of a particular dacoit or of the appellants. On the other hand, from perusal of the evidence there appears complete lack on the participation of the appellants in the commission of the offence. 10. Regard being had to the evidence which was adduced by the prosecution during the trial of the case, I find that there was a probability , firstly, that the accused persons could not have been identified and further that there could be chance of implication on account of the dispute between the appellants and the informant as regards payment of wages. 11. For the above reasons, the appellants are entitled to benefit of 7 doubt which, as such, is being given to them and they are, accordingly, acquitted by allowing this appeal and setting aside the judgment of conviction and order of sentence passed against them. 12. Appellant Geno Tanti, Kishun Manjhi and Nawal Tanti are in custody. They are directed to be released forthwith, if not wanted in any other case. Appellant no.2, namely, Narayan Tanti is on bail and he is discharged from the liability of his bond. 13. The Court appreciates the assistance rendered by Shri Om Prakash Pandey, learned Amicus Curiae on behalf of appellant nos. 1 and 2, namely, Geno Tanti and Narayan Tanti and directs that a fee of hearing should be paid to him out of the fund of Patna High Court Legal Services Committee. For that purpose, let a copy of first and last pages of the present judgment be made over to Shri Pandey. ( Dharnidhar Jha, J.) Patna High Court The 9th August, 2011 Kanth/N.A.F.R.