Criminal Appeal (SJ) No.83 of 1999 With Criminal Appeal (SJ) No.117 of 1999 ******* Against the judgment and order dated 27.3.1999 passed by Shri Arun Kumar, learned Additional District and Sessions Judge-IV, Gopalganj in Sessions Trial No.416 of 1997/1 of 1998. ******* In Criminal Appeal (SJ) No. 83 of 1999: Mahomddin Mian, son of Atar Mian, resident of Village- Baliwan Sagar, Police Station- Bishambharpur, District- Gopalganj. ……Appellant Versus The State of Bihar: …. … Respondent. ******* For the Appellant: Mr. Raghav Prasad, Advocate with Mr. Maheshwar Prasad, Advocate. For the S t a t e: Mr. Suresh Prasad Singh, A.P.P. ******* In Criminal Appeal (SJ) No.117 of 1999: Nathuni Mian, son of Khodaddin Mian, resident of Village- Baliwan Raimal, Police Station- Bishambharpur, District- Gopalganj. … ….. Appellant. Versus The State of Bihar: … …. Respondent. ******* For the Appellant: Mr. Raghav Prasad, Advocate with Mr. Maheshwar Prasad, Advocate For the S t a t e: Mr. Suresh Prasad Singh, A.P.P. ******** P R E S E N T THE HON’ABLE MR. JUSTICE GOPAL PRASAD ******* Gopal Prasad, J. Both the appeals have been heard together and are being disposed of by a common judgment. The appellants of both the appeals have been convicted under section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. 2 2. The prosecution case as alleged in the fardbeyan of the informant Bhola Mian is that in the night of 7.7.1997 at 11.30P.M. 15-16 criminals armed with gun, pistol and lathi attacked and assaulted him and his son Md. Taslim and son-in-law Samiullah by fists and slaps and butt of the gun and also assaulted the female inmates of the house and he identified amongst the miscreants Mahomddin, Raghubir Teli, Nathuni Mian of village Balua Raimal and Md. Salim and the miscreants looted away the jewelleries, utensils, clothes and cash worth Rs.40,000/-. The police after investigation submitted charge-sheet and cognizance was taken. The case was committed to the court of sessions and after framing of the charge the trial proceeded. During the trial 11 witnesses were examined on behalf of the prosecution. The witnesses supported the prosecution case about dacoity. However, P.W.1, Md. Taslim, son of the informant, P.W.2, Dhup Lal Mian, brother of the informant and P.W.7 Shamrul Nisha, wife of Taslim Mian (P.W.1) identified the appellant Mahomddin Mian and four witnesses, namely, P.W.8, the informant Bhola Mian, P.W.1, the son of the informant, P.W.7, Shamrul Nisha, wife of P.W.1, and P.W.10, Jamila Asgari, wife of Md. Yunus, the son of the informant (P.W.4) identified appellant Nathuni Mian. 3. The defence of the accused persons is that Mahomddin 3 Mian is the next door neighbour and his house is in front of the house of the informant across the road and Nathuni Mian is resident of the same village as that of the informant but having his house in a different tola, namely, Baliwan Raimal and further that Nathuni Mian and the informant used to engage in the sale and purchase of cattle and due to dispute between them they have falsely been implicated and Mahomddin is the next door neighbour and Pattidar has falsely been implicated in the case. The trial court taking into consideration the evidence of the witnesses and in view of the fact that the accused persons have been identified by the witnesses convicted both the appellants and sentenced as mentioned above. 4. Learned counsel for the appellants, however, contends that the accused persons are co-villagers and even the next door neighbour and hence they will not dare to commit dacoity in the village without covering their faces. It has further been contended that the witnesses have deposed that the night was dark and there is no means of identification. The claim of the witnesses that they identified them in the light of the torch lit by the dacoits neither appears to be probable nor acceptable and further the identification of the appellants is only by the family members and though there is evidence that after the occurrence several people of the village collected but except the family members none have identified the 4 appellants and hence the prosecution story regarding identification by the witnesses is not acceptable to record a conviction as the witnesses have also not stated that when they identified what role of omission and commission was being done by the dacoits. Learned counsel for the appellants further contended that the age of appellant Nathuni Mian was 70 years at the time of occurrence and it is not expected that a person of 70 years of age will go to commit dacoity and further at present the age of appellant Nathuni Mian is 82 years as per the estimation of his age at the time of conviction. 5. Learned counsel for the State, however, contends that the witnesses have supported the prosecution case and identification and hence the order of conviction and sentence is maintainable. 6. However, out of 11 witnesses examined P.W. 1 has identified both Nathuni Mian and Mahomddin Mian. However, in his cross-examination he has stated that in his statement before the police he had not stated about the identification of any of the accused. He has further stated that the night of the occurrence was a dark night and there was no light. However, he has stated that he identified the dacoits in the light of torch lit by the dacoits. However, there is nothing in his evidence that what act of commission and omission was being done by Mahomddin Mian and Nathuni Mian at the time he identified them. P.W.2 claims to have 5 identified Mohamaddin and he also claimed to have identified Nathuni in the light of the torch lit by dacoits. However, he has admitted that the house of Mahomddin is in front of his house across the road. P.W.7 is the wife of P.W.1. However, she has stated that she identified the accused Mahomddin Mian and Nathuni Mian. Her evidence was recorded in the year 1998 and she has stated that her marriage was solemnized three years ago and the occurrence is of 7.7.1997, though she has stated that she did not know any person of the village or Tola Baliwan Sagar. She has stated that she did not know the name of the person in and around her house. She has further stated that she had seen Mahomddin for the first time about one year back at the time of occurrence. She cannot say the distance in between Baliwan Sagar and Baliwan Raimal. She has further stated that she has never gone to Baliwan Raimal and no person of Baliwan Raimal visit her house and she did not identify any person of Baliwan Raimal. She has further stated in her evidence that she has stated before the police that she identified Nathuni Mian but does not identify Mahomddin Mian. Hence from her evidence it is apparent that at the time of occurrence she was not knowing either Mahomddin or Nathuni as she has stated that she was not knowing the name of any person in and around her house and she was not identifying any person of village Baliwan Sagar, nor she know the 6 name of any person of Baliwan Raimal. 7. With regard to accused Mahomddin, out of three identification by P.Ws 1, 2 and 7, the identification by P.W.1 is suffered from the defect that he has stated before the police about the identification of any accused and further he has stated that the night was dark and there was no light, though subsequently stated to have identified in the light of torch lit by the dacoits. Further P.W.2 though claimed to have identified the accused in the light of torch and his attention has been drawn in his cross-examination and he has denied to have stated before the police that he did not identify any dacoit. However, the I.O. (P.W.9) has stated in his evidence that this witness (Dhup Lal, P.W.2) has not stated before him about the identification of Mahomddin Mian before him and hence the evidence of P.Ws. 1 and 2 regarding identification of Mahomddin is suffered from contradiction and further from the evidence of P.W.7 it appears that though she identified but in her evidence stated that she did not know the name of any person around her house nor she identified any person of village Baliwan Raimal nor knows any person by name of the village Baliwan Raimal, nor has stated about the means of identification and hence the identification of the appellant Mahomddin by P.Ws 1, 2 and 7 is doubtful and suffered from defect of contradiction and means of identification. So far as 7 the informant is concerned, though he has named Mahomddin Mian as a person participated in the dacoity but in his evidence he has not supported the prosecution case regarding the implication of Mahomddin and on this point he has been declared hostile by the prosecution. In the facts and circumstance I find and hold that the prosecution has not been able to prove the charge by reason, cogent and reliable evidence regarding implication of this appellant as the evidence regarding identification of this appellant has suffered from contradiction and non-availability of means of identification. 8. In so far as the case of co-accused and appellant Nathuni Mian is concerned, he has been identified by four witnesses, namely, P.Ws. 1, 7, 8 and 10. However, P.W. 1 has stated that though he claimed to have identified in his examination-in-chief the identification of Mahomddin and Nathuni amongst the dacoit but in his cross-examination he has stated that in his statement before the police he had not stated about the identification of any of the accused. P.W.7 is Shamrul Nisha who is wife of P.W.1 (Md. Taslim) has stated that her marriage was solemnized about three years back from the date of her evidence dated 4th September, 1998 whereas the occurrence is of 7.7.1997. She has stated that she did not identify. She has also stated that she did not know any person of village Baliwan Raimal nor she knows the name of any person of Baliwan 8 Raimal and hence her identification of Nathuni who admittedly belongs to Baliwan Raimal Tola of the village whereas the prosecution party are residents of Baliwan Sagar tola as it has come in the evidence of the I.O. that in the village of the informant there are separate tolas and the accused Mahomddin, Mian, Raghubir Teli belong to Baliwan Sagar and Nathuni Mian belongs to Baliwan Raimal tola. P.W.8 is Bhola Mian. However, this witness has stated in his evidence that amongst the dacoits he identified Nathuni Mian. However, this witness is informant and though in his fardbeyan he named four persons to whom he identified but during the trial in his evidence he only claims to have identified Nathuni Mian and this witness has been declared hostile by the prosecution and in his cross-examination he has stated that in the statement before the police he has not named Raghubir Teli, Mohammad Salim and Nathuni Mian. However, this witness in his cross-examination by prosecution has stated that he had not stated the name of accused Raghubir Teli, Mahomddin Mian and Md. Slim amongst the dacoits to whom he identified. Hence out of four accused to whom he named in the fardbeyan he only claims to have identified Nathuni Mian. However, in his entire evidence he has not stated anything about the means of identification in which he identified Nathuni Mian nor he has stated that what act of commission was done by 9 accused during the time he identified. There is no specific mention that when he identified what this Nathuni was doing or whether he identified him in a room or outside the room. P.W.10 is Jamila Asgari who is wife of Md. Yunus Mian (P.W.4 and son of the informant). However she has stated that she identified Nathuni Mian who take out Kundali of her nose, Payal from her leg and locket from her neck and has also stated that the dacoits assaulted her and it was Nathuni Mian who has assaulted first and claimed to have identified Nathuni Mian. However, this witness has also been declared hostile for not identifying the other accused Mahomddin Mian and Raghubir Teli amongst the dacoits. However, in her cross- examination she has also not stated about the means of identification. P.W.11 is the Doctor who found the injury. However, out of four witnesses who identified the appellant Nathuni Mian which includes P.Ws. 1, 7, 8 and 10, the evidence of P.W.1 suffers from contradiction and though P.W.7 claims to have identified but in her evidence she has stated that she did not know any person of village Baliwan Raimal either by face or by name and further she has not stated about any means of identification nor stated about the act of commission and omission by the appellant Nathuni Mian when she identified. P.W.8 though he claimed to have identified Nathuni Mian though he is informant and he has named four persons 10 but denied to have mentioned the name of other accused when in the fardbeyan proved as exhibit he has named the four accused persons and P.W.10 has specifically stated that this appellant has got her jewelleries and also assaulted her but has not stated about the means of identification in which she identified. Moreover the appellant Nathuni Mian was 70 years old at the time of occurrence. However, the I.O. has stated in his evidence that this appellant Nathuni Mian has a criminal antecedent and is accused in some other cases even for an offence under sections 397 and 395. However, the cases mentioned under section 395 were of the year 1981, 1988 and 1991 whereas the date of occurrence of this crime is 1997 and the cases referred in which the appellant is accused is of remote past about 10 years prior to the date of occurrence. Hence having regard to the fact that the age of the appellant at the time of occurrence was 70 years and further the evidence regarding implication of the appellant suffered from the defect of means of identification has not been established. It has come in the evidence that night was dark and further the evidence of the witnesses are vitiating as P.W.7 and P.W.9 have been declared hostile as they named all the four persons as dacoit whom they identified but during the evidence only claim to have identified Nathuni Mian and further the evidence of P.W.1 suffers from contradiction and the evidence of P.W.7 that she did not 11 know any person of village Baliwan Raimal and she was married about three years prior to the date of occurrence and has stated that she was not aware of the name of any person by name or face of village Baliwan Raimal and hence I find and hold that the identification of appellant Nathuni Mian and his participation in the crime is doubtful as the prosecution has not been able to prove the charge beyond reasonable doubt and in the facts and circumstances the appellant is entitled for benefit of doubt. 9. Hence I find and hold that the prosecution has not been able to prove the charge against appellant Mahomddin and appellant Nathuni Mian beyond all reasonable doubt and their order of conviction and sentence recorded by the lower court is set aside and the appeals are allowed. (Gopal Prasad, J.) Patna High Court, Patna Dated the 21st day of December, 2011 S.K.Pathak/ (NAFR)