Cr. Appeal (S.J.) No.251 of 1996 **** Against the judgment and order, dated 22.08.1996, passed by Sri Jaleshwar Ram, Additional Sessions Judge, Kishanganj, in SessionsCase No. 45 of 1994 **** 1. Arasilal Ganesh 2. Anandi Lal Ganesh @ Ghoti , both sons of Khudanlal Ganesh, residents of village Bhorabhitha, P.S. Thakurganj (Pawakhali), district Kishanganj .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Ashok Jang Bahadur, Rashid Alam, Anis Akhtar & Arif Siddique Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellants have been convicted for offence under Section 395 of the Penal Code and sentences to undergo rigorous imprisonment for seven years. 3. The prosecution as alleged that on 23.05.1992 at about 08.00 p.m. some persons entered into the house and one of the miscreants pointed to the informant stating “he is the father of the girl and he has deposed before the Deputy Superintendent of Police” on which other 2 miscreants caught hold of informant and tied informant’s both hands with string. The informant identified the miscreants who got him identified to other miscreant as Choti, a co-villager. It is further alleged that said Choti gave a phatta blow on his head and, further, also assaulted him by lathi and danda. The motive for the occurrence is that the informant had arranged the marriage of his younger daughter with one Chandra Kumar, but, the accused, Chhoti and Arasi, wanted to get marriage of the daughter of the informant with the son of his brother for greed of the land of the informant. It is further alleged that Chhoti and his brother murdered Chandra Kumar and concealed the body and in the said case the informant has gave statement to the police so have committed the occurrence. 4. On the fardbeyan the first information report was lodged and after investigation the charge sheet was submitted, cognizance taken and after commitment the charge was framed for offence under Section 395 of the Penal Code. 5. During the trial nine witnesses were examined, who are P.Ws. 1 to 9. P.W. 9 is the informant and P.W. 1 is the brother of the informant. However, rest witnesses, P.Ws. 2 and 8, turned hostile as has not supported the prosecution. P.Ws. 3, 6 and 7 were tender. P.W. 4 though have come to support the prosecution case and even identified the appellant, however, P.W. 4 had not gave any statement before police during investigation and deposed for the first time in Court. P.W. 5 is the Judicial Magistrate, who conducted the Test Identification Parade. However, the evidence of the Magistrate is not very relevant. However, 3 P.W. 9 is the informant and P.W. 1 is the brother of the informant. However, both the witnesses supported the prosecution case and the implication of the appellants in the crime and have identified them in Court and the age of the appellants have specifically been mentioned in the first information report and there is specific allegation of overt act and at the time of dacoity and, hence, taking into consideration the evidence of the witnesses and the trial Court convicts the appellants under Section 395 of the Penal Code. 6. The learned counsel for the appellants, however, contends that it is a peculiar case of dacoity in which the motive of the dacoity has been assigned and it has been stated that since the marriage of the daughter of the informant was not solemnized with the brother of the accused, hence, the offence has been committed. It has, further, been stated that the first information report has not been marked as Exhibit and there is major contradiction in the evidence of P.W. 9 that he stated that the first information report was recorded at his residence in his examination-in-chief. He has further submitted that the investigating officer and the doctor have not been examined and the appellants have been alleged to be identified during the occurrence, but, the informant did not disclose the name just after the occurrence and plea that informant became unconscious due to shock is not supported by the medical evidence and the doctor has not examined him and, hence, there is no corroboration, except the informant and his brother have identified the appellants neither the inmates of the house nor the villagers identified the appellant and, hence, the learned counsel for the appellants has submitted 4 that the prosecution has not been able to prove the charge beyond all reasonable doubts and the appellants are entitled for the benefit of doubts and, further, it has been contended that due to the trial the appellants have remained in jail for a period from 29.05.1992 to 10.03.1997 and the occurrence is of the year 1992 and, hence, taking into consideration the fact that the occurrence is twenty years old and the appellants suffered during the trial and the pendency of the appeal the agony of trial and, hence, a lenient view be taken on the sentence. 7. The learned counsel for the State, however, opposed the prayer and supported the order of conviction and sentence. 8. Hence, on the respective submissions of the parties the question for consideration whether the order of conviction and sentence. 9. However, the prosecution case is that the dacoity has been committed in the house of the informant and the informant identified the two appellants along with others. The motive of the occurrence suggested that the informant has arranged marriage where the accused persons wanted the informant to marry his daughter with the son of the brother of the appellant. However, P.W. 9 is a witness who have stated that the motive of the occurrence that the informant refused to marry his daughter with the son of the brother of the appellant. P.Ws. 1 and 9 have supported the prosecution case and the prosecution case about the factum of dacoity in the house of the informant and he claimed to have identified the appellants as amongst the dacoits and there is assault by phatta. However, P.W. 9 is the informant and P.W. 1 is the brother of the informant. However, except two witnesses no one of the family has come 5 forward to support the prosecution case nor any of the co-villagers have supported the factum of dacoity. There is no corroboration at all regarding the evidence of P.Ws. 1 and 2 though P.W. 9 in his statement has stated that after occurrence several villagers have gathered, but, none of them have come to support the prosecution case. P.W. 9 disclosed the name of victim in paragraph 16 of the deposition and stated that 6-7 persons came and disclosed that one of the dacoits fled away. However, P.W. 9 has stated that the fardbeyan was recorded at the place of occurrence. He has stated that he has not stated before daroga that he came at 10.00 a.m. and fardbeyan was recorded by daroga. He stated that he identified the two dacoits in the light and they were Chhoti and Arsi and they were having phatta in their hand. However, he had not stated that what specific role has been attributed by the appellants during his identification. However, in cross examination this witness in paragraph 8 has deposed that since he entered into the courtyard he got stand up and fled away from the scene of dacoity. 10. Hence, taking into consideration the entire evidence and considering the submissions made by the parties though it is a case of two identifications, however, P.W. 1 though have not stated about the specific role of the appellants. P.W. 9 has stated that several people came and has stated which he disclosed, but, the evidence of P.Ws. 1 and 9 has not been corroborated by any other witnesses and even the factum of dacoity has not been supported or corroborated by any other witness even investigating officer has not been examined to support the objections. 11. Hence, taking into consideration the entire facts and 6 circumstances that the appellants and the informant are the co-villagers and there is prior enmity and no one, except two brothers, P.Ws. 1 and 9, has come to support the occurrence and there is no independent witness and it is also alleged that the informant was injured during the occurrence, but, injury report not proved regarding the injury of the informant. Even investigating officer not examined and contradiction about alteration not recorded for non-examination of investigating officer has caused prejudice. 12. Hence, under the facts and circumstances that the appellants are entitled for the benefit of doubt and the prosecution case has not been able to prove the charges beyond all reasonable doubts, hence, the order of conviction recorded by the learned lower Court is set aside and the appellants are acquitted of the charges and discharged from liability of their bail bonds and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 29th day of June, 2011, N.A.F.R. S.A.