IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1305 of 2010 KRISHNA MOHAN THAKUR, SON OF LATE DURGANAND THAKUR, RESIDENT OF DURGA MANDIR, JAINAGAR, POLICE STATION – JAINAGAR, DISTRICT – MADHUBANI. ……… APPELLANT. Versus 1. MANOJ KUMAR SINGH @ MANOJ MAHTO @ MANOJ KUMAR VERMA, SON OF JAGDEO MAHTO, RESIDENT OF JAINAGAR, POLICE STATION JAINAGAR, DISTRICT – MADHUBANI. 2. RUBI KUMARI, DAUGHTER OF PARMANAND THAKUR, RESIDENT OF DURGA MANDIR, JAINAGAR, POLICE STATION – JAINAGAR, DISTRICT – MADHUBANI. ………….. RESPONDENTS. FOR THE APPELLANT : - SRI J.P. SHUKLA, SR. ADVOCATE SRI SATISH CHANDRA JHA, ADV SRI VIVEKANAND KUMAR, ADV SRI DHIRENDRA KR. SINGH, ADV FOR THE STATE : - SRI L.K.B. PRASAD, APP ----------- 02/ 19.11.2010 Heard counsel for the appellant and the counsel appearing for the State. This appeal has been preferred by the appellant against the judgment and order dated 24.8.2010 passed by 3rd Additional Sessions Judge, Madhubani in Sessions Trial No. 149 of 1999, whereby Respondents 1 and 2 have been acquitted of charges under Section 396 of the Indian Penal Code. The appellant is the informant of Jainagar P.S. Case No. 82 of 1997. On the basis of the statement of informant (P.W. 2) recorded on 5.5.1997 at 2.30 a.m. Jainagar P.S. Case No. 82 of 1997 was instituted against unknown accused persons. The case of prosecution was that the mother of 2 informant Narayani Devi (PW 1) was sleeping in his her house in between the night of 4/5.5.1997 at 1.30 hours when she heard some sound and woke up hearing sound of dacoits. Her husband, who was sleeping inside the room, came out and one of the accused fired at him and he sustained injury in his abdomen. The dacoits were asking for key at the point of gun from her. Krishna Mohan Thakur (PW 2) had given the key and on opening of the trunk Rs. 6,000/- and other articles and jewellery were taken by the accused persons. In the FIR itself it has been stated that the accused persons could not be identified by the informant by name but their faces are known to him and informant and other family members can identify them. The father of the informant, who has sustained gun shot injury subsequently died on the way to hospital. The accused- respondents along with two other persons were subsequently roped as an accused in this case. One of the accused was implicated on the ground that his photograph was shown to P.W. 1 and 2 and they identified them as the person, who had fired at the father of the informant. So far respondents 1 and 2 are concerned, their names were implicated in this case on the ground that after 10 to 15 days of occurrence some persons came to the house of Krishna Mohan Thakur, who are gotia of 3 the informant and next door neighbour. P.W. 1 Narayani Devi asked her son (PW 2) to go to the place of her gotia and listen whether they are talking about the occurrence. P.W. 2 overheard that the copy of the FIR has been obtained by the accused persons and they were discussing that there is nothing against them in the FIR. They came to a conclusion that these two respondents were also involved in the commission of the offence. In order to prove the charges prosecution examined altogether 13 witnesses. Out of 13 witnesses, P.W. 1 is the wife of the deceased and mother of P.W. 2 and P.W. 2 is the informant and son of the deceased. Other witnesses such as P.Ws. 3, 4, 5, 6, 7, 8 have not supported the case of prosecution. P.Ws. 1 and 2 have deposed in their evidence that Manoj Kumar (respondent no. 1) was known to them from earlier as he had illicit relationship respondent no. 2, who is the daughter of Parmanand Thakur, who is residing adjacent to the house of P.W. 1. Rubi Kumari was none but the daughter of Parmanand Thakur, who is the uncle of the informant. In the evidence it has nowhere been stated that Rubi Kumari was seen by the witnesses at the place of occurrence and participating in commission of offence. Regarding Manoj 4 Kumar (Respondent No. 1) also there is no specific statement regarding his participation. Simply a suspicion is the reason for implication of these two accused persons. The trial court has discussed the evidence of prosecution in detail and on weighing the pros and cons of the deposition of the witnesses, has finally come to the conclusion that there is no evidence at all against these two accused for their conviction under Section 396 of the IPC. One of the reasons for not believing the prosecution case regarding participation of these accused persons in the commission of dacoity is, not naming them in the FIR. Admittedly, as per the deposition of P.W. 1 and 2 it is quite clear that Rubi Kumari and Manoj Kumar are known to the informant from earlier but there was no obvious reason for not naming them in the FIR. If, for any reason, names of these respondents were not disclosed in the FIR, there was an opportunity to P.W. 1 and 2 for disclosing their names in their statement recorded under Section 164 of the Cr.P.C. There also they failed to name them. After 10 to 15 days of the occurrence, having due consultation and deliberation, their names were implicated as an accused, for commission of dacoity in which one of the persons was also killed and as such charge was framed under Section 396 of the IPC. The 5 other reason for coming to this conclusion that these two respondents were falsely implicated, is the enmity between them as P.W. 1 and 2 themselves have admitted that since 20 to 25 years the parties have been on inimical terms, which could be obvious reason for false implication. It is true that a serious incident like a dacoity had taken place, the articles were looted, one person lost his life, but that does not mean that only because a serious offence was committed any one could be convicted, unless there are sufficient evidence to prove their participation in commission of offence. In the present case evidence on respondents participation in commission of offence is completely absent and there is no sufficient ground against these two respondents for their conviction. The trial court has rightly come to the conclusion that they are entitled for acquittal. We do not find any reason to interfere with the impugned judgment. Accordingly, the appeal preferred by the informant against the acquittal is dismissed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)