CRIMINAL APPEAL No.393 of 1988 Against the judgement of conviction and order of sentence dated 4.6.1988 passed by Sessions Judge, Gopalganj in Sessions Trial No.254 of 1986. 1. BALIRAM NONIA & 2. KADIR MIAN-----------------------Appellants Versus THE STATE OF BIHAR--------------Respondent ------- For the Appellants:- Sri Y.V.Giri,Senior Advocate Sri Vikas Ratan Bharti & Sri Pranav Kumar, Advocates For the State:- Sushri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Rakesh Kumar,JJ. The two appellants were put on trial by framing charge under Section 396 of the Penal Code in Sessions Trial No.254 of 1986 and by judgement dated 4th of June, 1988 passed by the learned Sessions Judge, Gopalganj were found guilty of committing the above noted offence. Each of the appellants was directed to suffer rigorous imprisonment for life. The present appeal has been filed by them to bring into question the judgement of conviction passed against them. 2. Dacoity appears committed in the house of the informant(P.W.4) and before that in other houses of the village. The informant stated that on hearing a hulla, he woke up and came out of his house. He found that dacoity was being committed somewhere around the - 2 - house of one, Bhagrasan Sao which was towards south of the place where the informant and others were standing. The dacoits started moving towards north and during that course they had looted the properties from the house of one Chaudhur Bhagat and while coming from the side of the house of Bhagrasan Sao, they were also firing shots. The dacoits gradually came to the house of the informant and by giving push to the doors of his house, broke it open and entered inside it. The dacoits plundered the properties from the house of P.W.4. It was stated by the informant that a Sen Releigh cycle valued at Rs.350/-, Philips Radio valued at Rs.300/-, a nose pin valued at Rs.50/- and a torch of five cells valued at Rs.27/- along with a leather bag of the value of Rs.20/- were taken away by the dacoits from the house of the informant. They plundered many houses and during that course, continued firing shots on account of which, the wife of the informant P.W.10 Sona Devi was also injured. Other injured persons were; Ram Jatan Sah, Kishori Devi daughter of Manger Singh and one Ramawati Devi daughter of Ram Prasad Singh. The informant stated that his wife P.W.10 stated to him that she had identified three persons amongst the dacoits and they were appellant Baliram Nonia, his younger brother and - 3 - appellant Kadir Mian. The informant stated that most of the dacoits were young persons and one of them, was being addressed by as Vinod and they were counting one to three among themselves. The informant stated that the house of Ram Roop Sah(P.W.2), Shiv Nandan Sah(P.W.8), Manager Singh(not examined), Haneef Mian(not examined), Bikrama Sah(P.W.6), Deenanath Sah(P.W.5), Sheonandan Sah(P.W.1), Sujamat Hussain(not examined)were also plundered and they could also identify the dacoits. The dacoits were also making enquiry from Sheonandan Sah about the friends and relatives of the co-villagers of the informant who were resident of village Baraipatti and the witness was informing the dacoits that he had his friends there. The dacoits remained in the village for about an hour and retreated from thereafter. 3. The informant stated that he put all the injured persons on a bullock cart and brought them to Gopalganj sadar hospital where his fardbayan was recorded. 4. No police officer except P.W.3 Jai Prakash Srivastava was examined in the case and it appears from the evidence of P.W.3 that he prepared the injury certificates of the injured persons and submitted the same to the medical officer-in-charge of the hospital - 4 - where they had been admitted for treatment. As regards the other ten witnesses; P.Ws.2, 5 and 11 were tendered for cross-examination; the remaining witnesses consisted of the informant P.W.4, his son P.W.7 and his wife Sona Devi(P.W.10). Other witnesses, like, P.W.1 Sheonandan Sah, P.W.5 Deena Nath Sah, P.W.6 Bikrama Sah, P.W.8 Shivnandan Sah and P.W.9 Ramjatan Sah gave evidence on the factum of commission of dacoity in different houses. Some of the victims of dacoity like, Manager Singh, Hafeez Mian, Sujamat Hussain were not examined. 5. It was contended before us by the learned counsel for the appellants that the fardbayan indicates that identification was only of the two appellants and that was by P.W.10 Sona Devi who was the wife of the informant. However, another witnesses P.W.7 who happened to be the son of the informant also stated that he had identified the two appellants. It was contended that the reason which was assigned for identifying the two witnesses, were equally applicable and available to other witnesses including the informant who stated that appellant Kadir Mian was a labourer who used to come to the village of the informant for doing labour work and, as such, he was known to them for over 20 years or so. As regards - 5 - appellant Baliram Nonia, it was contended that he used to come to the village for selling fish and that fact has been stated by almost all witnesses, specially P.W.4 and his wife P.W.10 and that is the reason for identifying the appellant, Baliram Nonia. But, the curious aspect of the evidence was that there is no indication that they had either attempted to conceal their identifies by taking precaution in that behalf. It was further contended that the circumstances appearing from the evidence of witnesses make it unacceptable that they could have identified the appellants. It was contended further that the identification was claimed in the light of a lantern which was burning at the place of occurrence but the admitted fact is that the light was dim and, as such, it may not be facilitating the clear vision and identification of the accused persons. 6. Sushri Shashi Bala Verma, the learned Addl.P.P. has submitted that the single identification of a witness could be sufficient for basing the conviction, if it is found acceptable and reliable and further that P.W.7, the son of the informant also re- enforces the evidence by giving his evidence on identification. Sushri Shashi Bala Verma, as such, submitted that the conviction was properly recorded. - 6 - 7. As may appear from the very facts which have been stated by us that the two appellants along with the third who has been described as the brother of appellant Baliram Nonia, were named in the FIR on account of being identified by the wife of the informant P.W.10 Sona Devi. There is no whisper anywhere in that fardbayan or even in the evidence of P.W.4, the informant that he had talked to his son and he also divulged that he had identified any of the dacoits. This is one aspect which has influenced us a lot. P.W.7, the son of the informant, in his evidence has stated that he identified the two appellants, but what makes his evidence not acceptable to us, is that during cross-examination in paragraph-2 has stated that he was questioned by the police and he gave his statement to it but he did not remember the date, day or time of his statement. He further stated that he cannot say as to after how many days of commission of dacoity, his statement was recorded. So what we could gather from the above line of the cross-examination and the evidence of P.W.7 is that in spite of having identified the appellants in the very night of the dacoity, P.W.7 was remaining tight lipped about the identification of the appellants. P.W.4 his father does not say that he had any talk with P.W.7. What he - 7 - says is that he had the talk with his wife and that too, in the hospital. If the son was identifying the dacoits who were participating in dacoity and who were allegedly injuring his mother, it was expected that he would have been very prompt and forthright in making the disclosure about identifying the dacoits to his father just after the dacoity had ended. This circumstance which appears from the evidence of the witnesses, specially, of P.Ws.4 and 7 makes it utterly impossible for us to accept the evidence of P.W.7. 8. As regards the evidence of P.W.10 Sona Devi the wife of the informant, we have already indicated that the reason on account of which the two appellants were claimed to be identified by her was that they were regularly seen in the village when they used to come to the village in connection with their callings. Appellant Baliram Nonia was coming to the village for selling fish, whereas Kadir Mian was working in the village as a labourer. P.W.7 was the youngest among the three witnesses, i.e., P.Ws.4, 7 and 10 and has stated that he was knowing Kadir Mian for last 20 years. The informant also says that the two appellants used to come to his village in connection with their jobs. It is expected that P.W.4 could also pick up the identities of the two appellants, if he had the - 8 - opportunity of seeing them. It is not stated by P.W.4 that he had not seen any of the dacoits rather he has stated in his fardbayan that he along with other persons who have been named by him and in whose houses also dacoity was committed, could very well identify the dacoits when they had the opportunity of seeing them again. We find a probability coming out of the above statements of the witnesses that if they had really seen the two appellants participating in the occurrence then there was no reason for them not to have identified them and to have named them in the first information report. 9. The other argument which was placed for our consideration was that admittedly the two appellants were known to the witnesses since long and they appear coming and participating in the offence bare face. It appears improbable and absurd inasmuch as no known person shall indulge in the offence with bare face. It is expected that such persons who were known to the witnesses or the inmates of the house must take some precaution so as to concealing their identifies. We find ourselves inclined to act upon the above submissions. 10. In the light of the discussions which we have made after analyzing the evidence, we find that - 9 - it was a case where the appellants deserved to be acquitted on account of being given the benefit of doubt. We, accordingly, extend that benefit to the appellants and allow the present appeal. The conviction and sentence passed upon them are hereby set aside. The two appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Dated, the 6th of May, 2010, Brajesh Kumar/NAFR ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J.)