CRIMINAL APPEAL NO. 289 OF 1993 (S.J) *** Against the judgment and order dated 06.09.1993 passed in Sessions Trial No. 228 of 1983 by the 2nd Additional Sessions Judge, Rohtas at Sasaram. *** 1. Krishna Nand Singh, 2. Bisun Singh, 3. Hira Lal Singh, 4. Nanhak Kohar @ Titir 5. Raghunath Mahto @ Bitan ……… Appellants. Versus The State of Bihar . . . . .. . . . . . . . . Respondent. For the Appellants: Mr. Anand Mohan, Advocate For the Respondent: Mr. Nand Kishore Prasad, A.P.P. *** P R E S E N T HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM *** S.M.M.ALAM, J. This Criminal Appeal is directed against the judgment and order dated 06.09.1993 passed by Shri Priya Saran, 2nd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 228 of 1983 whereby he has been pleased to convict all the five appellants under Section 395 of the I.P.C. and sentenced each of them to undergo R.I. for seven years. 2. The prosecution case, as per the fardbeyan of informant Ram Pratap Singh (P.W.6) recorded on 26.09.1981 at 9.30 A.M. at village Amaithi, in brief, is that in the preceding night he along with his 2 uncle Ram Naresh Singh (P.W.3) was sleeping in a room built on first floor. At about 12 night there was some rain and when the rain was over some persons climbed over the roof from eastern side. The informant’s uncle Ram Suresh Singh (P.W.4), who was in another room situated at ground floor, started raising hulla whereupon the informant got up and in the flash of torch light he saw some dacoits on the roof and some in the courtyard of the house. They were 20-25 in numbers, out of them he identified five persons, who all are appellants. It has further been stated that appellant Krishna Nand Singh was armed with pistol, Bisun Singh was armed with Bhala, Raghunath @ Bitan was armed with gun and rest two appellants were armed with Gahadal. The dacoits entered into the rooms situated at the ground floor after breaking open the door by means of Gahadal. P.W.4 Ram Suresh Singh raised halla whereupon the dacoits assaulted him by the butt of the gun causing injuries on his left elbow. The dacoits also did fire from their gun. On hearing halla the neighbours assembled whereupon the dacoits fled away after looting the household articles, ornaments and cash. It is stated that the dacoits had snatched ornaments from the wife of informant and from the wife of Nand Kishore Singh. It is stated that the dacoits were identified in the torch light as well as in the light of lanterns which were burning in the Angan as well as in the room. 3. After recording the above mentioned fardbeyan of the informant S.I. Ayodhya Prasad Singh forwarded the same to 3 Bikramganj Police station for institution of the case and on the spot he took up the charge of investigation. On receipt of the said fardbeyan at the police station, Bikramganj Ganj P.S. case no. 220 of 1981 dated 26.09.1981 under Section 395 of I.P.C. was instituted against the five appellants and 15-20 unknown persons. The case was investigated by the said S.I. Ayodhya Prasad Singh and after investigation he submitted charge sheet against the appellants under section 395 of I.P.C. on the basis of which cognizance was taken and the case was committed to the Court of Sessions. 4. After commitment, charge under Section 395 of I.P.C. was framed against the appellants on 25.11.1986 by 2nd Additional Sessions Judge, Rohtas at Sasaram. The appellants denied the charge and so they were put on trial and by the impugned judgment the appellants were convicted and sentenced as stated above. The defence of the appellants is that they have been falsely implicated by the informant due to previous enmity. 5. To prove the case prosecution has examined altogether 07 witnesses namely Shiv Balak Lal (P.W.1), Moti Chand Singh (P.W.2), Ram Naresh singh (P.W.3), Ram Suresh singh (P.W.4), Ram Pravesh Singh (P.W.5), Ram Pratap Singh (P.W.6), Rajpati Devi (P.W.7), out of the above said witnesses P.W.1 and P.w.2 are formal witnesses. P.W.1 has proved formal F.I.R. of this case which has been marked Ext.1, P.W.2 has proved the endorsement on the Fardbeyan which has 4 been marked Ext.2. As both the witnesses are out and out formal witnesses, as such there is no need of making any discussion upon their testimony. Out of remaining witnesses P.W.6 Ram Pratap Singh, is the informant of this case. P.W.3 Ram Naresh Singh, P.W.4 Ram Suresh Singh are inmates of the house who have claimed to identify the dacoits and although P.W.5 Ram Pravesh Singh is also one of the inmates of the house but he is a hearsay witness and did not claim to identify any of the dacoits at the time of dacoity. Likewise P.W.7 Rajpati Devi also does not claim to identify any of the dacoits. So, in this case P.W.3 and 4 are the main witnesses besides the informant (P.W.6). 6. First of all, I would like to make discussions on the evidence of P.W.6, who is the informant of this case. His evidence is as follows: The occurrence took place on 25.09.1981 in the night in between 11.30 -12.00 P.M. At that time he was sleeping in the room constructed at the roof of his house. His uncle Ram Naresh Singh (P.W.3) was also sleeping in the said roof. On hearing halla of Chor- Chor raised by his uncle Ram Suresh Singh (P.W.4) he woke up. His uncle Ram Naresh Singh also woke up. He and his uncle flashed torch light and in torch light he saw some dacoits standing over the roof and some dacoits standing in his Angan. The dacoits were 15-20 in numbers. The dacoits started looting articles including clothes, ornaments and utensils belonging to him, his uncle Ram Naresh Singh 5 and Ram Suresh Singh as well as the articles belonging to his father. He has further deposed that during the commission of dacoity the dacoits assaulted his uncle Ram Suresh Singh with the butt of the gun. He has further deposed that amongst the dacoits he identified Krishna Nand Singh, Bisun Singh, Hira Lal Singh, Nanhak Kohar and Raghunath Mahto. He has further deposed that he identified the above mentioned persons in the torch light. The witness also identified Krishna Nand Singh, Bisun Singh, Hiralal Singh and Raghunath Singh, who were physically present in dock and claimed to identify Nanhak Kohar @ Titir, who was not physically present in court and was represented by his lawyer. From the evidence of P.W.6, who is the informant of this case, it appears that he has named all the appellants to whom he had identified amongst the dacoits at the time of commission of dacoity in his house which goes to show that he has fully corroborated his fardbeyan (Ext.2). He has also proved his signature as well as the signature of Ram Pravesh Singh and Ram Naresh Singh over the fardbeyan which have been marked Ext.3, 3/1 and 3/2 respectively. His cross- examination shows that the defence had tried to make out a case that P.W.6 has falsely implicated the appellants due to the previous enmity. It further transpires that during cross-examination this witness has admitted that the torch which was the only means of identification was not handed over to the police on the basis of which the defence counsel 6 has argued that in the absence of means of identification the identification of the appellants amongst the dacoits should not be believed. 7. The next witness on the point of occurrence is P.W. 3 Ram Naresh Singh. His evidence is as follows: The occurrence took place in the night of 25.09.1981 at about 10.00 P.M. At that time he was sleeping with his nephew Ram Pratap Singh (P.W.6) on the roof of the house. The dacoits climbed over the roof. His brother Ram Suresh Singh was sleeping in another room. He (Ram Suresh Singh) raised halla whereupon he woke up and came out of the room flashing torch light. He has further deposed that in the torch light he saw 20-25 dacoits standing in his Angan. He has further deposed that the dacoits broke open the door of his room and started looting the articles. They (dacoits) also opened firing. He has further deposed that amongst the dacoits he had identified Krishna Nand Singh, Bisun Singh, Raghunath Mahto @ Bitan, Nanhak Kohar @ Titir and Hira Lal Singh in the torch light. The dacoits were armed with gun and pistols and other lethal weapons. He has further deposed that he raised halla whereupon his co- villagers came there, who started throwing brick bats upon the dacoits and then the dacoits fled away. He has further deposed that the dacoits took away house hold articles and during commission of dacoity the dacoits assaulted his brother Ram Suresh Singh with the butt of the gun, as a result of which his brother Ram Suresh Singh sustained 7 injury. Thus the evidence of P.W.3 shows that he has also named all the appellants, as the persons who had committed dacoity in his house. His evidence shows that he had also identified the appellants in dock. Thus I find that P.W.3, who is the own uncle of informant Ram Pratap Singh and the inmates of the house has fully supported the prosecution case as made out in the fardbeyan. However, it appears that this witness has also admitted in cross-examination that he had also not handed over torch by which he had identified the appellants to the investigating officer. 8. The next witness on the point of occurrence is P.W.4 Ram Suresh Singh. He is also an injured witness. His evidence is as follows: The occurrence had taken place in the night of 25.09.1981 at about mid night. At that time he was sitting in his room. A Lantern was also burning there. He heard the sound of foot steps of some persons coming from the roof sides. He raised halla of Chor-Chor. The dacoits came down in his Angan through the roof. They fired twice. Due to fear he (P.W.4) remained inside the room pushing the door from inside but the dacoits started pushing the door and asked him to open the door. He did not open the door and thereafter the dacoits forcibly got the door opened and four of them entered into his room, one of them was armed with gun, the rest were unarmed. One of the dacoits gave a blow with the butt of the gun on his left hand and asked him to tell about the costly articles. Thereafter the dacoits started picking up 8 house-hold articles and ornaments. Amongst the dacoits he identified Raghunath Mahto @ Bitan. P.W.4 also identified Raghunath Mahto in the dock. In cross-examination he has deposed that he had not handed over the said lantern to the Investigating Officer in the light of which he had identified the dacoits. At paragraph 6 of his cross-examination he has deposed that amongst the dacoits he had identified only Raghunath Mahto @ Bitan. Thus, it appears that P.W.4 has also supported the prosecution case with regard to the commission of dacoity in the house of the informant and amongst the dacoits he has claimed to identify one of the dacoits namely Raghunath Mahto @ Bitan. 9. The next witness is P.W.5 Ram Pravesh Singh. His evidence is that on 25.09.1981 at about 11.00 P.M. the occurrence had taken place. At that time he was sleeping in his house adjacent to the P.O. house. He heard the halla of his brother Ram Suresh Singh (P.W.4) whereupon he woke up. His brother was raising halla of dacoit-dacoit. In the meantime, he also heard sound of two firing. He wanted to come out from his house but his minor daughter aged about 4-5 years started crying and so he could not come out of his room. He came out of his room after the dacoits ran away and went to the P.O. house and found the articles of his house looted away by the dacoits. He also saw his brother Ram Suresh Singh in injured condition. His son Ram Pratap Singh told him that he identified Krishna Nand Singh, Nanak Kohar @ Titar, Hira Lal Singh and Bisun Singh amongst the 9 dacoits. Thus, the evidence of P.W.5 shows that he is not an eye witness of the occurrence but immediately after the occurrence he went to the place of occurrence where his son Ram Pratap Singh disclosed the name of appellants Krishna Nand Singh, Nanak Kohar, Hira Lal Singh and Bisun Singh amongst the dacoits. In para 5, he was confronted with the question that in the case of Baijnath Kohar his gun was seized and the said gun has not been released to him as yet. 10. P.W.6 is the informant of this case. I have already discussed his evidence in paragraph 6 of my judgment. 11. P.W.7 Rajpati Devi is also one of the inmates of the house, in which the dacoity was committed. Her evidence is that about 7-8 years ago in the night at about 10.00 P.M. the occurrence of dacoity had taken place in her house but on hearing sound of firing she fled away from her house and by the time she returned back to her house the dacoits had already fled away after looting house hold articles. She saw her Dewar Suresh Singh in injured condition. She has further deposed that she had not identified any dacoits and her husband had also not disclosed the name of any dacoits to her when she met him after the commission of dacoity. She was declared hostile by the prosecution and when her attention was drawn towards her previous statement made before the police, she categorically denied that she had stated before the police that Ram Naresh Singh and Ram Pratap Singh had told her the names of Krishna Nand Singh, Bisun Singh, Hiralal Singh, Nanak 10 Kohar and Raghunath amongst the dacoits. Thus it appears that P.W.7 has not supported this fact that these appellants had committed dacoity in her house, although she has supported this fact that on the alleged date an occurrence of dacoity had taken place in her house. 12. So far the evidence of P.W.1 and P.W.2 is concerned, they are simply formal witnesses and they have not stated anything about the occurrence of dacoity. P.W.1 has simply proved the formal F.I.R. which has been marked Ext.1 and P.W.2 has proved the endorsement in the writing of Sri A.Y. Singh, the then Sub-Inspector of police of Bikramganj police station on the Fardbeyan which has been marked Ext.2 in this case. Since both the witnesses are formal witnesses, as such I do not feel any necessity to make any discussion upon the evidence of P.W.1 and P.W.2. 13. From the evidence of P.W.3 Ram Naresh Singh, P.W.4 Ram Suresh Singh, P.W.5 Ram Pravesh Singh and P.W.6 Ram Pratap Singh it appears that all the above said witnesses have supported the occurrence of dacoity which had taken place in the house of P.W.6 (informant) in the night of 25.09.1981. Besides the above mentioned four witnesses, P.W.7 Rajpati Devi has also supported this fact that on the alleged date of occurrence a dacoity was committed in her house. So, I find sufficient material on record to hold that on the alleged date of occurrence a dacoity was committed in the house of P.W.6 in which 11 the dacoits had looted away the house hold articles including ornaments from the house of the informant. The defence has also not challenged this fact that on the alleged date of occurrence no such occurrence of dacoity had taken place in the house of the informant but the contention of the defence lawyer is that the appellants were falsely implicated in this case taking advantage of the occurrence due to the previous enmity. So the only question to be decided in this case is whether there is sufficient evidence on record to hold that the appellants were the persons, who had committed dacoity in the house of the informant, on the alleged date of occurrence or that there is possibility of their false implication by the informant and the witnesses. 14. During the course of argument it has been pointed out by the defence counsel that appellant nos. 1 to 4 are the co-villagers of the informant being residents of Amaithi and admittedly all the above mentioned appellants i.e. Krishna Nand Singh, Bisun Singh, Hira Lal Singh and Nanhak Kohar @ Titir were known to the informant and the witnesses from before the date of occurrence. Therefore, it was unthinkable that appellant nos. 1 to 4 might have committed dacoity in the house of informant without concealing their faces due to fear of being identified. The learned advocate submitted that the evidence on record shows that none of the witnesses had stated before the trial court or before the police that at the time of commission of dacoity the 12 appellants had concealed their faces but from their physical structure they could be able to identify the appellants. He submitted that this circumstance shows that the appellant nos. 1 to 4 were falsely implicated in this case. As regards the appellant no. 5 Raghunath Mahto @ Bitan, the learned defence counsel submitted that although he is a resident of another village namely of village Siaruya but the witnesses have admitted that he was also known to them from before the date of occurrence and therefore, it was unbelievable that he would have gone to the house of the informant for committing dacoity without concealing his identity. He submitted that the above mentioned circumstance shows that all the appellants were falsely implicated in this case. The learned defence counsel further argued that although appellant nos. 1 to 4 were co-villagers of the informant but there is no evidence on record to show that any attempt was made either by the witnesses or by the police to recover the looted articles from their houses. The learned defence counsel submitted that this circumstance also shows that the appellant nos. 1 to 4 were falsely implicated in this case. He further argued that all the witnesses examined in the case are close relatives of the informant and as such, they are highly interested witnesses. In this regard he has referred paragraph 2 of the cross- examination of P.W.3 in which P.W.3 has admitted that all the prosecution witnesses are related to each other being own brother, 13 nephew and uncle and their ancestors was one and same person. He has argued that the admission of P.W.3 establishes beyond doubt that the prosecution witnesses are interested witnesses and not a single independent witnesses including the Chaukidar, who had admittedly arrived at the place of occurrence after the occurrence, was not produced before the court for evidence. In this connection he has referred para.5 of P.W.6 in which P.W.6 has admitted that the Chaukidar and other witnesses had arrived at the place of occurrence immediately after running away of the dacoits. He has argued that the non-examination of independent witnesses establishes beyond doubt that the appellant were falsely implicated in this case and that is why, the independent witnesses did not come to support the case of the prosecution. The learned defence counsel argued that under such circumstance the evidence of the prosecution witnesses, who are highly interested witnesses, should be discarded. 15. The learned defence counsel further submitted that the possibility of presence of the independent witnesses at the place of occurrence was very much evident from the evidence of P.W.3 made at para.8 and para.9 of his deposition in which he has deposed that his village consists of 150 houses and adjacent to the P.O. house there are houses of Mani Singh and Chandradeo Singh towards east and towards west there are houses of Jagmohan Singh and Ghurhu Singh, towards north there is house of Sumeshwar Singh and towards south there is 14 house of Shiv Kumar Lal. He submitted that the above mentioned paragraphs of P.W.3 establishes beyond doubt that the presence of independent witnesses could not be ruled out so the non-examination of independent witnesses cuts the very root of the prosecution case. The learned advocate has further submitted that as per the evidence of P.W.3, P.W.5 and P.W.6, they had identified the appellants in the torch light but the said torch which was the means of identification could not be produced in court, which creates doubt about the statement of the witnesses that they had identified the appellants in the torch light. Likewise, Lantern which was the other means of identification for P.W.4 was also not produced in court which falsifies the evidence of P.W.4 that he had identified the appellant Raghunath Mahto @ Bitan in the light of lantern. 16. The learned defence counsel has further submitted that the evidence on record will show that the appellant nos. 1 to 4 are closely related to each other and the evidence on record will show that one Baijnath Kohar was the grand-father of appellant Nanhak Kohar @ Titir and P.W.5 has admitted this fact in his evidence that Baijnath Kohar had instituted a criminal case against his brother Ram Pravesh Singh and others which was numbered as Bikramganj P.S. Case no. 13 (3) 76 and in that very case the licencee gun of P.W.5 Ram Pravesh Singh was seized which was not returned to him till the date of his deposition. He has submitted that the above fact establishes that the 15 informant’s side were inimical to the appellants from before the date of occurrence due to the lodging of the criminal case by Baijnath Kohar against P.W.5 Ram Pravesh Singh which is establishes this fact that the informant’s side had motive to falsely implicate the appellants in this case. Lastly the learned defence counsel has argued that non- examination of Investigating Officer has also caused much prejudice to the appellants. 17. From the arguments of the learned defence counsel as well as from the material on record it is established that not a single independent witness has been examined on behalf of the prosecution although the possibility of the presence of the independent witness could not be ruled out as P.W.3 at para.8 has admitted this fact that P.O. village consists of 150 houses and at para.9 he has given the name of the persons who have got their houses in the boundary of P.O. house. They are named as Mani Singh, Chandradeo Singh, Jagmohan Singh, Ghurhu Singh, Sumeshwar Singh and Shiv Kumar Lal. He has further deposed that the roof of the house of Sumeshwar Singh and the roof of the P.O. house is amalgamated. At para.11 P.W.3 has further deposed that after fleeing away of the dacoits the villagers had assembled at his house. P.W.4 at para.7 has stated that the Chaukidar of the village had also come to his house on hearing halla. The non-examination of the above said independent witnesses creates doubt about the truthfulness of the statement of the prosecution witnesses, specially when it has 16 come on record that one Baijnath Kohar was the ancestor of appellant Nanhak Kohar @ Titir, who had brought a criminal case against P.W.5 Ram Pravesh Singh bearing Bikramganj P.S. case no. 13 (3) 76 under section 307 and other sections of I.P.C. in which the regular gun of Ram Pravesh Singh was seized. It has come in evidence that the appellants Krishna Nand Singh and Bisun Singh are own brothers and Hiralal Singh is the nephew of Krishna Nand Singh which goes to show that appellant nos. 1 to 4 are closely related to each other. Thus there is possibility that due to that enmity, the informant and the witnesses have