Criminal Appeal (SJ) No. 114 of 1998 ****** Against the judgment and order dated 28.01.1998 passed by Shri Mahesh Prasad Tiwary, Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 80/1996/11/1996. ****** 1. Suresh Singh. 2. Randhir Singh. Both sons of Jhagru Singh, resident of village – Miari, P.S. – Sarai Ranjan, District – Samastipur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. With ****** Criminal Appeal (SJ) No. 126 of 1998 Jago Das, Son of Yadu Das, resident of village – Miary, Police Station – Sarai, District – Samastipur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With ****** Criminal Appeal (SJ) No. 130 of 1998 Ashok Singh @ Ashok Kumar Singh, S/o. Nanipat Singh @ Nandipat Singh, resident of village - Miyari, P.S. – Sarai Ranjan, District – Samastipur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Ashutosh Kumar, Advocate. Mr. Nachiketa Jha, Advocate. For the Respondents : Mr. Parmeshwar Mehta, A.P.P. 2 (In CR. APP (SJ) No. 130 of 1998) For the Appellant/s : Mrs. Vimala Kumari, Amicus Curiae. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Nobody appears on behalf of the appellant in Cr. Appeal No. 130 of 1998. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned counsel for the appellants, learned amicus curiae in Cr. Appeal No. 130 of 1998 as well as the State. 3. These three appeals have been heard together and are being disposed of by the common judgment as these three appeal arise out of the same judgment and order dated 28th January, 1998 passed by Shri Mahesh Prasad Tiwary, Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 80/1996/11/1996 by which all the four appellants have been convicted for the offence under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and further convicted for the offence under Section 364/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 4. The prosecution case as alleged in the fardbeyan of the informant Suresh Jha is that on 18.10.1995 while the father was sleeping in the Varandah on the ground floor and the informant was sleeping on the 3 roof, the informant came down and went out side after opening the main door. In the torch light the informant saw 8-10 miscreants standing at his door out of which 4-5 had surrounded his father. One was having a gun and other pistols and two of them took his nephew Bhola Jha and proceeded to south of Darwaza towards a Varandah and when he asked him then he threatened and gave a blow by butt of the gun. Two persons snatched his torch and H.M.T. wrist watch and he identified Ashok Singh and Suresh Singh and he also claimed to have identified Randheer Singh and Jago Das. It is further alleged that the accused persons entered into the house and took away an attaché kept in plastic gunny bag having Sarres and cash of twenty thousand rupees. 5. On the fardbeyan of the informant the FIR was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions after commitment the charge was framed against the appellants under Section 395 of the Indian Penal Code and during the trial nine witnesses were examined by the prosecution. However, two witnesses were examined on behalf of the defence are D.W. 1 Baijnath Prasad Singh and D.W. 2 Siya Sharan Prasad Singh. The documentary evidence also asdduced by defence. The defence of the accused persons is that they have falsely been implicated out of the enmity. A cow of the informant was taken for “Poshiya” and when the cow gave a calf and then according to the custom the price of the cow was assessed as rupees 35,00/- and the 4 informant was required to give the half price i.e. rupees 1750/- for taking the cow but informant went to take the cow without payment but defence was not ready to give the cow without payment of half price and the dispute with regard to the cow arose and for which the appellants have been falsely implicated. After considering the oral and documentary evidence the trial court convicted the appellants and sentenced the appellants as stated above. 6. Learned counsel for the appellants, however, contended that the accused persons have falsely been implicated and except the appellants none has come to identify the appellants whereas the appellants are resident of the same vicinity and further the father of the informant did not give any statement before the police and hence the evidence of witnesses who have come to depose, is not worthy of reliance. The I.O. also did not find objective evidence of dacoity and hence the prosecution has not been able to prove the charges beyond reasonable doubt. 7. P.W. 6 is the informant and he has supported the prosecution case and claimed to have identified the appellants and stated that Ashok Singh had snatched his torch and wrist watch. Dacoits broke the door by axe and ransacked the house and looted away the articles. However, he has stated that on Halla Keerat Rai was coming but the accused persons fired by which he got injury. He has further stated that the accused persons looted the articles by entering into house and Keerat 5 Rai his nephew and the accused persons sent letters for ransom. 8. P.W. 5 is the father of the informant. However, he has also supported the prosecution case about the dacoity and assault. However, he claims to have identified Jago Das and he has stated that it is Jago Das kidnapped Bhola Jha. However, in his evidence he has stated that it was dark night. He has further stated that Daroga did not record his statement and he did not give any statement to Daroga or police. However, he claims to be injured and the doctor has proved injury but having regard to the fact that he did not prefer to make any statement before the police during investigation cast a doubt on his testimony and even injury report not proved. 9. P.W. 6 in the fardbeyan itself has stated that when he came down he saw one person taking Bhola Jha and he asked him, who is he ? But he did not identify that person. 10. P.W. 2 and 3 have come to support the prosecution case and they have stated on the Halla they came with the villagers and then the miscreants fired causing firearm injury on the person of Keerat Rai so they receded and returned back. 11. P.W. 7 the doctor who has examined Keerat Rai but he did not find any injury of firearm on the person of Keerat Rai and the doctor has opined that the injury on the person of Keerat Rai was by hard blunt object and the injury was not possible by firearm. Hence, in view of evidence of doctor the evidence of P.W. 2 and 3 that when they were 6 coming with Keerat Rai and other villager, dacoit fired causing firearm injury to Keerat Rai fails to ground and does not inspire confidence. P. Ws. 1, 2 and 3 have not named any of the dacoits and hence their evidence is not of much significance but the prosecution case that witness coming to place of occurrence returned back due to firing is falsified except the family members none identified the appellants. 12. P.W. 8 the I.O. in his statement stated that Keerat Rai was not found out during investigation. I.O. in his evidence in para 15 has stated that he did not find any mark of violence and the room where the attaché and gunny bag was alleged to have been looted. He did not find any sign of keeping of the article, the briefcase in gunny bag in the room from where it is alleged to have been looted. Hence, the I.O. did not find any sign of violence on the door whereas the informant has stated in her evidence. 13. Hence, taking into consideration the entire evidence except P.W. 6 there is neither reliable evidence nor any corroboration regarding the implication of the four appellants. None of the witnesses supported the prosecution case regarding the identification except P.W. 5 who has identified only Jago Das. However, regarding the identification of Jago Das evidence of P.W. 5 and 6 are at variance and the evidence of P.Ws. 1, 2 and 3 made different version as they have stated that they came at the time of occurrence. The identification by P.W. 6 is stated to be in torch light but in his evidence has not stated what act was performed by 7 the dacoit when he identified them. I.O. has also not supported or found objective evidence of dacoity as he neither found mark of violence nor found mark on the door or at place of occurrence nor found the mark that the article was kept in room from where it was looted. Hence, taking into consideration the entire facts and circumstances identification that the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. 14. Mrs. Vimala Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 26th July, 2011. N.A.F.R./Kundan.