CRIMINAL APPEAL (DB) No.375 OF 1988 CRIMINAL APPEAL (DB) NO. 464 OF 1988 CRIMINAL APPEAL (DB) NO. 473 OF 1988 -------- Against the judgment and order of conviction and sentence dated 18.7.1988 passed by Shri Ekbal Raza, 3rd Additional Sessions Judge, Rohtas, Sasaram in S.T. No. 128 of July, 1988. --------- Cr. Appeal No. 375 of 1988 Chattu Singh, son of Sakhi Singh, resident of village – Girdharpur, Police Station – Karaghar, District – Rohtas ………………Appellant Cr. Appeal No. 464 of 1988 1. Deocharan Dusadh alias Deocharan Paswan, son of Sahdeo Dusadh, 2. Majnu Dusadh alias Majanu Paswan, son of Bharath Dusadh, resident of village – Parwaliya, P.S. – Kargahar, District – Rohtas …………… Appellants Cr. Appeal No. 473 of 1988 1. Chandrama Singh alias Yadav, son of Tapeshwar Yadav, 2. Rampati Yadav, son of Ganesh Yadav, 3. Ram Awadhesh Singh, son of Ram Kishun Singh, all residents of village – Girdharpur, P.S. – Karahgar, District – Rohtas, 4. Ramashish Tiwary alias Pujari, son of late Jagarnath Tiwary, resident of village – Pahari, P.S. – Karahgar, District – Rohtas 5. Chhatar Bind, son of Prasadi Bind, resident of village – Aruhi, P.S. – Karahgar, District – Rohtas …………… Appellants Versus The State of Bihar ……….Respondent (in all the appeals) ----------- For the Appellants : Sarvshri Om Prakash Pandey, Advocate (Amicus Curiae) Alamdar Hussain, Advocate For the State : Sushri Shashi Bala Verma, APP --------- 2 PRESENT THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON’BLE SHRI JUSTICE AKHILESH CHANDRA ---------- Dharnidhar Jha & Akhilesh Chandra, JJ. The batch of three appeals arise out the judgment dated 18th day of July, 1988 passed by the learned 3rd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 128 of 1981. Altogether thirteen accused persons were put on trial of that case for committing offence under section 396 of the IPC. Appellants Ramawadhesh Singh and Chhathu Singh were also charged for committing offence under section 412 of the IPC. By the judgment aforesaid, out of thirteen, five accused, namely, Ramdahri Musahar, Ramashish Musahar, Sheopujan Singh, Girija Tato and Musafir Singh were acquitted while remaining accused except appellant Chhathu Singh were convicted of committing the offence under section 396 of the IPC and each of them was directed to suffer rigorous imprisonment for life. As regards appellant Chhathu Singh, he was acquitted of the charge under section 396 of the IPC but was found guilty of the offence under section 412 IPC with appellant Ramawadhesh Singh and each of the two was directed to suffer rigorous imprisonment for ten years. The appellants have brought into question their conviction and sentences passed upon them. 2. A dacoity appears committed in the house of one Hari Narayan Singh (P.W.4) in the night intervening 7th and 8th of July, 1980 at 3 about 12.30 P.M. in which 15 – 17 unknown dacoits participated. While looting the properties the dacoits also fired at the inmates of the house as also on others. One such outsider Gupteshwar Singh was hit by gun shot fired by them and he succumbed to the injuries. Others who appear injured were P.W. 4 Hari Narayan Singh and three others, namely, Shashi Singh, Binde Singh and Raj Keshwar Singh (all the three not examined). The dacoits looted away the properties from the house kept in different boxes and also relieved the lady inmates of the house of the ornaments which they had put on their respective persons. 3. The informant was not the proprietor of the house in which dacoity was allegedly committed. He was a co villager who appears subsequently put on trial after being suspected of having his hand in commission of the offence and was acquitted. The informant claimed by giving certain identifying features which had been picked up by him that he could identify the culprits if he had the occasion of seeing them. Besides, he stated that the injured persons had rushed to Varanasi for treatment whereas deceased Gupteshwar Singh died there on the spot. 4. P.W. 16 Jagdhar Tiwari was the officer incharge of Kargahar police station and he reached at the place of occurrence at about 9 A.M. on 8.7.1980 and recorded the FIR. He took up the investigation and during that course he inspected the place of occurrence which was the house of P.W. 4 Hari Narayan Singh. He held inquest upon the dead body of Gupteshwar Singh and prepared inquest report, Ext. 4 2 and sent the dead body for postmortem examination which was conducted by Dr. I.S. sinha on 8.7.1980 at 1 P.M. and the report was prepared which has been marked as Ext. 3 in the case. The I.O. examined the witnesses and on suspecting certain persons to have committed the offence, arrested them. Besides, as may appear from the evidence of P.W. 16 at page 88 of the paper book, he searched the houses of the appellant Ramawadhesh Singh and Chhathu Singh and recovered the alleged properties, like, ornaments, etc. from a place which was meant for storing fodder. Seizure list was prepared. 5. Both the suspects and the articles recovered were put on Test Identification Parade and it appears that P.Ws 1 to 5 were called to attend the Test Identification Parade of suspects and they identified nine accused persons. The test identification parade for establishing the identity of the properties as booty was also held, as may appear from the evidence of P.Ws 4 and 6 and those were also identified by the two witnesses. This is how, after close of the investigation, the accused persons were put on Test Identification Parade after being forwarded by P.W. 16 through a charge sheet. 6. The accused persons belonged to two villages. Some of the appellants belonged to village Parwalia whereas the others, like, Chandrama Singh and others, are residents of village Giridharpur. They pleaded that they were fully acquainted with and known to all the witnesses and they were known to each other quite well and their implication was false on account of the fact that the appellants were labourers and they were doing labour work for the witnesses which 5 they gave up and as such, in order to putting criminal pressure so as to subjugating them, a false case was foisted upon them. The defence of Chandrama Singh and others was that there was enmity between two and others as there had been a proceeding under section 107 of the Code of Criminal Procedure as well between the parties which was litigated before the Executive Magistrate and as such, the parties were quite acquainted with each other and the appellants have been falsely implicated on account of the said enmity. Besides, some documents, like, Ext. B/2 was brought on record to point out to the court that defence of past acquaintance between the sides was quite probable. 7. Sixteen witnesses were examined during the course of trial in support of the charges. As pointed out by us, P.Ws 1, 2, 3, 4 and 5 are witnesses, who participated in the Test Identification Parade thrice on 21.7.1980, 31.7.1980 and 4.8.1980 for identification of the suspected accused and they identified one or the other appellants and thus, nine accused were identified by the above witnesses. As regards the identification of articles, P.Ws 4 and 6 participated on one day in the Test Identification Parade which was supervised by P.W. 14 who was the A.P.E.O., Kargahar Block, namely, Sri S.S. Dubey and the whole list of articles which are contained in the Test Identification Parade held on that particular day, were allegedly identified by the two witnesses. 8. The learned trial judge, considering the evidence on record, passed the judgment in question. 6 9. We have heard Shri Md. Alamdar Hussain, learned counsel appearing for the appellant Chhathu Singh of Cr. Appeal No. 375 of 1988. He has scrtutinized the evidence of witnesses P.Ws. 4 and 6 and has submitted that the basic defect in the prosecution case was that the story of search of the houses of the two appellants Chhathu Singh and Ramawadhesh Singh has not been established as P.W. 8 Shankar Dayal Singh and P.W. 10 Ram Jee Tanti, the witnesses to search and seizure of the articles who did not support that part of the prosecution story. Not only that, P.W. 3 Hari Govind Singh has admitted in paragraph 9 of his evidence that no copy of the seizure memo was handed over either to both the appellants or to any of their family members and as regards the identification parade of articles that was completely contrary to the provision of Rule 236(b) of the Bihar Police Manual. Shri Hussain drew our attention to the evidence of P.W. 6 Motiraj Devi at paragraph 31 when she stated that articles were got identified by the witnesses at the police station and further that she could not remember whether those articles were mixed with similar or other articles like them. It was further contended that even the evidence of P.W. 14 Sri S.S. Dubey, the A.P.E.O. who was supervising the Test Identification Parade of articles indicated that the witnesses had seen the articles ahead of identifying them. It was contended that the learned trial judge did not take into account the evidence of D.W.8 Sri Kishun Prasad Seth who was a goldsmith and who had testified that the ornaments, which were identified by P.Ws 4 and 6, were the ornaments purchased by appellant Chhathu Singh 7 from him and for that he had granted a receipt. It was further contended that the circumstances that the articles were recovered and thereafter put on Test Identification Parade was not put to the appellants in their statement under section 313 of the Code of Criminal Procedure and that rendered the conviction not sustainable. 10. Shri Om Prakash Pandey, learned amicus curiae appearing in the remaining two appeals, took us through the evidence of witnesses specially of those who had participated in the Test Identification Parade and had claimed identifying the accused persons during that course. We were also shown the improbabilities in the statement of witnesses when it was argued that their very conduct as such was not making them a competent witnesses. It was contended that it was a dark night and there was no means of identification admittedly available at the place of occurrence and the solitary evidence of P.W. 1 that he saw some of the accused persons and identified them in the torch light which was coming from the place of occurrence house, appears not acceptable specially in the light of the evidence of P.W. 4 who was a man who was flashing the torch inside his house and it would have been impossible for any one like P.W. 1 to have, firstly, seen the accused persons and, then, to have identified them on account of the situation of the two houses. Our attention was drawn to the evidence of various witnesses including P.W. 15 Shri Basudeo Pandey, Judicial Magistrate, who was overseeing the Test Identification Parade to show that the accused persons were known to the witnesses from quite before and the purpose of holding Test 8 Identification Parade was meaningless. It was contended in the above context that it is admitted by P.W. 1 in paragraph 22 of his evidence that Panchayat Barki Kharari is constituted by villages Mahuli and Parwalia, the latter being one of the villages of the appellants and Mukhia of that panchayat is Shiv Bachan Singh who has been examined as P.W. 5. Not only that, P.W. 1 stated in paragraph 19 that he and others of his village had agricultural lands in village Parwalia and they were carrying on agricultural operations over those lands by going to that village. The village was separated by a distance of three miles and the relationship and the situation of two villages was such that there could be a statable probability that the accused persons could be known to the witnesses quite well. Our attention was further drawn to the evidence of P.W. 4 Hari Narayan Singh, the person whose house was plundered by the dacoits in paragraph 21 at page 38 of the paper book in which he stated that the witnesses knew the accused persons from before as they were doing labour works for them and now they have given up the labour work, they were annoyed and had foisted a false case. It was contended that nothing more was required for establishing that it was a false case which was foisted upon the appellants. 11. As regards appellants Chandrama Singh and others of Cr. Appeal No. 473 of 1988, attention of the court was drawn to the evidence of P.W. 5 Sheo Bachan Singh, the mukhia of the panchayat, who has stated that he after hearing some halla, started from his darwaja along with his servant Deoraj Kahar and remained standing 9 north of the house which was plundered and looted by the dacoits. They remained standing there for quite some long a time. It was contended that the said Deoraj Kahar had been examined as D.W. 1 by the appellants and he also admitted that he was working as a servant of P.W. 5 and that no one had identified the appellants as after the dacoits had fled away, no one pointed out that any one had identified any particular dacoit. The said Deoraj Kahar has also stated about the earlier litigation between Chandrama Singh and others on the one hand and witness Hari Narayan Singh on the other including a proceeding under section 107 of the Cr.P.C. suggesting to the court that it could be for that particular reason that appellant Chandrama Singh and others of village Giridharpur might have been implicated. 12. In Harinath and ors. Vs. The State of Uttar Pradesh, AIR 1988 Supreme Court 345, the accused persons were residents of a village which was in the vicinity of the village in which dacoity had been committed. Some of the eye witnesses had identified some of the accused and conviction of the appellants had been recorded by the trial court which was confirmed by the High Court on the basis of the evidence of identification. Considering the vicinity in which the two villages were situated and the probability on account of the situation of the two villages, the Supreme Court was observing that there was a statable probability that the people of one village could be known to those of the other village and as such, the failure to state facts of identification in the FIR was a substantial defect in the prosecution case and that raised a reasonable doubt about the complicity of the 10 accused persons in commission of the dacoity. Considering the above fact, the Supreme Court ordered the accused to be acquitted. 13. When we come to the facts of this case, this is admitted from the evidence of P.W. 1 Bijay Bahadur Singh that Grampanchayat Barki Kharari was constituted by two villages Mahuli and Parwalia. The appellant Deocharan Dusadh was the resident of village Parwalia which was the part and parcel of the grampanchayat Barki Kharari. It further appears from the evidence of the same witness in paragraph 19 that agricultural lands in Parwalia in most of their parts, were being owned and possessed by P.W.1 and others of village Mahuli. P.W. 1 has given details of agricultural operations and has also given details as regards the situation of the agricultural lands in village Parwalia which belonged to P.W. 1 and other persons of Mahuli. 14. A suggestion was given to P.W. 1 that the lands which were located at village Parwalia and which were being tilled by witnesses or the villagers of village Mahuli were approached for agricultural operation by passing through village Parwalia. Of course, the witness has denied the suggestion, but when the lands are situated all around the village, as appears admitted by the witnesses, we can deduce that it could be a natural event in agricultural operation that one may have to cross the village in approaching a particular land situate in a particular direction of the village to till it. This is one aspect of the relationship between the villages. Other relationship, which we perceive, is that being constituents of the same panchayat, the villagers of the two villages could be well acquainted to each other. 11 This could be a simple deduction from the fact situation on account of the constitution of the Panchayat. No activity in the panchayat could be carried out unless the villagers of the two villages interact with each other and take a decision on a particular issue. This could give rise to interaction between the villagers of two villages very often. On this reason also, one could easily deduce that the villagers of the two villages were acquainted with each other. 15. This appears more prominent a probability when we come to the evidence of P.W. 3 in paragraph 16 at page 28 of the paper book. He has admitted that appellants Majnu Dusadh and Deo Charan Paswan were labourers who worked in their village, i..e., in village Mahuli. 16. P.W. 15 Shri Basudeo Pandey, a Judicial Magistrate who was holding the Test Identification Parade was told by some of the witnesses that appellant Deo Charan Dusadh was a labourer and was doing labour works in the village of the witnesses. 17. Lastly, P.W. 4 Hari Narayan Singh who is the real victim of the occurrence also refers to the commission of dacoity by looting the properties kept in his house, has admitted that the accused persons and the witnesses were having long acquaintance with each other and that the accused persons were doing labour for the witnesses and now that they had given it up, they had foisted a false case out the grudge on that account. 18. If this could be the evidence on the relationship between the accused and the witnesses on the question of acquaintance between 12 the parties, then it was rightly pointed out to us by Shri Pandey that in the face of ordinary inference that the witness and the villagers of village Mahuli were well acquainted with accused persons could never be ruled out. The accused persons were really known to the witnesses and other villagers of the place of occurrence village. If this was that, as we deduce to be, then one circumstance which haunted us the most is as to why witnesses after identifying the accused did not ensure that their names appear in the FIR. The second thing is that when the accused persons were known to the witnesses, then what could be the value of Test Identification Parade. To us, it appears a hoax, specially when it was being organized after some delay as on 10.9.1980 or 11.9.1980, which Test Identification Parades were attended by all the witnesses. We further find from the reading of Ext. B/2 that it was not a simple acquaintance between the villagers of the two villages, inasmuch as, the villagers of the two villages, i.e., Mahuli and Giridharpur were also transacting some sale and purchase of immovable property. Ext. B/2 and other such documents which were brought on record indicate that quite some good number of sale and purchase of land were finalized and sale deeds were executed by one person in favour of the other who belonged to the two villages Mahuli and Giridharpur. This gives a clear inkling that villagers of Mahuli and Giridharpur were known to each other well from before, and as such, the identification of the appellants who belonged to village Giridharpur appears meaningless for the reasons we have just assigned. 13 19. As regards evidence of identifying the alleged theft properties, it is too infirm and suspect to be enough for basing a conviction. Out of the two prosecution witnesses, one P.W. 6 Motiraj Devi has stated in her evidence that when the witness went to attend the identification parade organized for identification of the articles, they had seen them ahead of identifying them. The officer P.W. 14 also stated that the articles were seen by the identifying witnesses called to attend the parade. Rule 236(b) of Bihar Police Manual forbids the theft articles being shown to witnesses and directs that precaution has to be taken to keep them away from the views of witnesses. The evidence of the above two witnesses indicates as if the above rule on identification of articles may not have been observed in its completeness making the evidence on identification suspect as a result of which it may not be proper to sustain the conviction of appellants Chhathu Singh and Ramawadhesh Singh not sustainable. 20. Learned trial judge had such glaring and clear evidence before him to consider, but unfortunately the learned trial judge did not even discuss the above evidence, least to talk of even noting them so as to rejecting them. These were the evidence on which no court could come to a conclusion that the appellants would have participated in the commission of occurrence and on that account, the charges stood proved. We are of the opinion that it might be a case in which the court could say that the charges stood disproved entitling the accused to an order of acquittal. 14 21. In the result, the three appeals are allowed. The judgment of conviction passed against each of the appellants and the sentences consequent thereto inflicted upon them are hereby set aside. All the appellants are on bail. They shall be discharged from the liabilities of their respective bonds. 22. We appreciate the assistance which was rendered by Shri Pandey, the learned counsel for the appellants in two appeals, i.e., Cr. Appeal Nos. 464 and 471 of 1988. He shall be entitled to one each fee for arguing each of appeals which shall be paid by Patna High Court Legal Services Committee. Let first and last page of the judgment be handed over to Shri Pandey. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 22nd April, 2010 NAFR/Anil