1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - - Criminal Appeal (SJ) No.361 of 2007 Against the judgment of conviction and order of sentence dated 26.2.2007 and 27.2.2007, respectively, passed by Additional Sessions Judge-cum- Fast TrackCourt V,Bettiah, West Champaran, in Sessions Trial No. 558 of 1997/434 of 2004. - - - - ===================================================== Manazer Mian, son of late Alain Mian, resident of Village Milparsa, Police Station Baldhar,District West Champaran .... .... Appellant Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellant : Shri Anirudh Kumar Sinha, Advocate For the Respondent : Shri S.N.Prasad, A.P.P. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The present appeal is directed against judgment dated 26.2.2007 passed by the learned Presiding Officer, Fast Track Court-V, Bettiah, West Champaran, in Sessions Trial No. 558 of 1997/434 of 2004 by which the appellant was held guilty of committing the offence under Section 397 of the Indian Penal Code and by order of sentence dated 27.2.2007 was directed to suffer rigorous imprisonment for seven years. 2. The prosecution case is based upon the fardbeyan of P.W. 5 Lal Babu Mian. It was stated by him that when he was sleeping at the readymade cloth shop with his father in the night intervening 14-11-1996 and 15-11-1996 1996, at around 1.30 A.M., his father Nakched Mian P.W. 4 awakened him up to tell him that the shop had been broken into in 2 its western wall. As soon as the informant woke up, the accused persons came before him and asked for money, but the informant stated that he did not have anything and started raising hulla of ‘Chor-Chor.’ The accused put his country made gun at him which was caught hold of by the informant upon which the other criminals dealt an iron rod blow to the informant on his head. When his father P.W. 4 intervened and objected to the acts of the criminals he was given a chaku blow. 3. The informant stated that he identified the present appellant in the light of lantern which was burning in the shop and asked him as to why he was indulging into such acts upon which the appellant is said to have ordered to kill him. The informant ran away from there and took shelter in his house. His father also started raising hulla upon which the villagers and neighbourers assembled there as a result of which the criminals fled away. 4 It was stated that the criminals took away with them woolen shawl, sweater and shirts of different colours valued at Rs. 12,000/- besides Rs. 17,000/- from the cash box. 5. On the basis of the farddbeyan of P. W. 5 F.I.R. of the case was registered and investigation was undertaken. The Investigating Officer has not been examined and, as such, we do not have any evidence as to how the investigation progressed. However, it is admitted from the records of the lower court that police submitted charge sheet sending up the present appellant as a result of which the trial was undertaken and that, ultimately, ended in the impugned judgment. 6. During the course of trial six witnesses were examined by the prosecution. P.W. 1 Krishna Prasad was an injured witness who stated that 3 when he came to the place of occurrence after hearing hulla from his Kirana shop where he was sleeping, he found the dacoits at the shop of the informant and when he came out of his shop a pellet hit him on his right thigh. Another shot was also fired which hit in his let eye and his left eye was blinded. He, thereafter, went to the hospital and the dacoits ran away. He stated that he was told by the informant P.W. 5 as also by his father P.W. 4, namely, Nakched Mian that they had identified the present appellant. P.W. 2 Nawal Prasad was also an injured witness who had also been hit by pellets which were fired by the criminals and he further stated that after ½ hour of the occurrence, P.Ws. 4 and 5 stated that it was the present appellant who had been identified. Likewise, P.W. 3 was also giving his evidence in the same fashion that when shots were fired by the criminals he was hit by the pellets. He stated that the criminals looted the shop of P.W. 4 and that he reached the place of occurrence after the criminals had ran away when was told by P.Ws. 4 and 5 that they had identified the present appellant as one of the criminals. P.Ws. 4 and 5 were the father of the informant and informant himself, respectively, and they have also supported the allegation and the fact that they had identified the appellant as one amongst the criminals. P.W. 4 stated in paragraph 7 of his evidence that the criminals had concealed their identities by putting gamochhas on their faces. He has stated further that he was awoke by his son P.W. 5. 7. So far as the evidence of P.W. 5, the informant is concerned, he has stated that he was awoke by his father and when the criminals came to him to demand money and that he had refused to pay up the same, a criminals put his gun on him. He identified the present appellant and told 4 him as to what he was doing. The present appellant is said to have ordered to kill him upon which the present appellant is further said to have fired a shot along with other accused persons. P.W. 6 Dr. Md. Nazir had examined the injured persons who had been hit by pellets and issued the medical reports which have been marked Ext. 2 to 2/E. 8. Thus, what appears from the evidence of the witnesses, specially, P.Ws. 4 and 5 and others is that the occurrence had really taken place and the appellant had been identified by two witnesses, namely, P.Ws. 4 and 5. 9. On consideration of the evidence of the witnesses what is found is that the criminals who had participated in commission of the offence had put on gamochhas on their faces so as to concealing their identities. It is further found by the evidence of P.W. 4 that property had been removed from the shop and a lantern was burning there. It was contended in the light of above evidence that it could be very difficult for any person to identify even a known person who was concealing his identity and in such circumstance identification of the accused persons could be doubtful especially when the identification is of a single man out of many criminals. The other contention was that in the F.I.R., P.W. 5 stated that P.W. 4 had awakened him and had pointed out that there was an opening created in the western wall of the shop for entering into it. But the Investigating Officer was not examined and there could not be any evidence brought on record that there was any opening made or created on the wall of the shop so as to entering inside the house. Not only that, P.W. 4 stated in his evidence in paragraph 7 that the light of lantern was dim. He was stating in paragraph 8 that it was a dark night. It was contended in the above light that identification of the appellant may not be acceptable. 5 10. The evidence of P.W. 5, the informant, in paragraph 10 also indicates that the night was dark but he has stated that the lantern was burning there. P.W. 5 has stated in paragraph 11 of his evidence that some of the criminals had put on gamochhass on their faces so as to concealing their identities. If the criminals had put on gamochhas on their faces for concealing their identities, it does not appear acceptable that even a known person could be identified by his face. Moreover, the evidence of P.W. 5 does not appear true inasmuch as he was attempting to make statements which were contrary to those of his father when he was stating that the light of lantern was quite bright as may appear in the same paragraph 11. These are some of the reasons upon which, I find the evidence doubtful as regards the complicity of the present appellant. 11. It is true that there is no direct evidence produced by the defence so as to pointing out to the court as to why the appellant had been implicated in the case. It could be very difficult for an accused to say as to for what particular reason he had been falsely implicated. The defence has examined D.W.1 who sated that the informant of the case and the present appellant were not carrying on well and were inimically disposed towards each other on account of the dispute for a particular piece of land. This could be one of the probabilities as appears emerging for false implication of the appellant. 12. In the result, I find merit in the appeal and the same is allowed. It was a case in which the appellant ought to have been acquitted by giving benefit of doubt. Accordingly, the appellant is acquitted of the charge for which he was convicted by being given the same benefit. The judgment of 6 conviction and order of sentence passed upon the appellant are hereby set aside. 13. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 9th September, 2011 Kanth/ N.A.F.R.