IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment of conviction dated 24.01.2007 and order of sentence dated 25.01.2007 passed by Ist Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.567 of 2006. CRIMINAL APPEAL (SJ) NO.323 OF 2007 CHINTU THAKUR @ CHANCHAL THAKUR, Son of Late Om Prakash Thakur, resident of Mohalla-Naurangabad, P.S.Bettiah Town, District-West Champaran.... .... Appellant Versus State Of Bihar.... .... Respondent With Criminal Appeal (SJ) No. 234 of 2007 NANHAKI MIAN @ MANKI MIAN @ SAJID, Son of Shamsuddin, resident of Mohalla-Dargah, P.S.& P.O.-Bettiah Town, District-West Champaran.... .... Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 298 OF 2007 DEEPU @ KRISTOFAR @ KRISTOFAR SIMON, Son of Simon Matius, resident of Mohalla-Christian Quarter, P.S.- Bettiah Town, District-West Champaran.... .... ------Appellant Versus State Of Bihar.... .... Respondent With Criminal Appeal (SJ) No. 324 of 2007 TINKU RAM @ RAMESH RAM, Son of Naga Ram, resident of village-Rajguru Chowk, Bettiah, P.S.-Bettiah Town, District-West Champaran.... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellants: Sri Om Prakash Pandey, Amicus Curiae (In the above noted four appeals) 2 For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J Six accused persons were charged together under Section 395 IPC by the learned Ist Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.567 of 2006. Accused Ranjeet Robert was distinctly charged under Section 412 IPC. While delivering judgment on 24.01.2007 the learned Additional Sessions Judge found the above noted Ranjeet Robert and the four appellants, one in each of the batch of four appeals, guilty of committing offence under Section 395 IPC and directed each of them to suffer rigorous imprisonment for seven years and also to pay a fine of Rs.2,000/-, in default of which each of the appellants and the convict Ranjeet Robert was to undergo rigorous imprisonment for one month. Ranjeet Robert was also found guilty of the offence under Section 412 IPC but, no separate sentence was passed upon him for committing that particular offence. One of the six accused persons, namely, Irshad Mian was acquitted by the learned trial Judge in want of evidence. While Ranjeet Robert appears having not preferred any appeal, the four appellants have preferred the present batch of four appeals individually to challenge the order of conviction and sentence passed upon each of them. 3 2. The prosecution case is very short. It was stated by P.W.10, the informant of the case, that in the wee hours of 06.07.2006, to be precise at 3.30 A.M., he was coming after having alighted from a train by a rickshaw to his house. When he was on Supriya cinema road his rickshaw was surrounded by 7-8 unknown criminals, one of whom put a pistol at him. He started raising an alarm when the other criminal put his pistol on his chest and threatened him to kill if he raised any further cries. The same criminal is said to have taken out Rs.4800/- from the upper and inner pockets of the informant. The money was in the notes of denomination of Rs.100/- each. A third criminal snatched his titan watch valued about Rs.800/- and also picked up his Raxin bag containing his belonging which included two bank drafts in favour of Secretary, Bihar Intermediate Shiksha Parishad, Patna and other relevant papers kept inside the bag. 3. It was stated further that after the informant was relieved of his belongings, he was released by the criminals and by that time people of the neighbourhood had also been attracted to the place. Simultaneously, the police patrolling party also reached there and seeing them the miscreants started to run away but were chased and two of them were caught. One disclosed his name as Ranjeet Robert while the other was 4 appellant Chintu Thakur @ Chanchal Thakur. On questioning, the two disclosed the names of their associates and those were the four appellants and accused Irshad Mian. The apprehended accused pointed out that the gang leader was one Perwez Mian and on search, a knife and cash in the sum of Rs.800/- constituted by notes of denomination of Rs.100/- each was recovered from the full-pant pocket of non-appealing convict Ranjeet Robert. The police prepared seizure memo after the recovery of knife and Rs.800/-. 4. FIR was lodged at the statement of P.W.10, the informant and the investigation was taken up and after completion of the same the police submitted chargesheet sending up six accused persons for trial which ended in the acquittal of accused Irshad Mian and conviction of remaining five accused. 5. So far as the appeals of appellants Nanhaki Mian @ Manki Mian @ Sajid, Deepu @ Kristofar @ Kristofar Simon and Tinku Ram @ Ramesh Ram are concerned, they have to be allowed merely because their names appeared in the statements of two accused Ranjeet Robert and Chintu Thakur @ Chanchal Thakur, they were neither caught at the spot nor were put on test identification parade so as to verifying the statement of the informant or the claim of the investigating officer that five persons named by the two apprehended accused had indeed 5 participated in commission of the offence. Moreover, the evidence of P.W.10(informant)in paragraphs-23 and 32 indicated that he had no occasion of ever seeing the appellants Nanhaki Mian @ Manki Mian @ Sajid and Tinku Ram @ Ramesh Ram and further that those accused persons had been seen by him for the first time in court. Thus, the charge stands not proved against Nahaki Mian @ Manki Mian @ Sajid, Deepu @ Kristofar @ Kristofar Simon and Tinku Ram @ Ramesh Ram and in that view of the evidence, the three appeals bearing nos.234, 298 and 324 all of year 2007 have to be allowed and, accordingly, they are allowed. The appellants of the above three appeals are on bail. They shall stand discharged from the liabilities of their respective bonds. 6. So far as the appellant Chintu Thakur @ Chanchal Thakur is concerned, it was contended by Sri Om Prakash Pandey, the learned Amicus Curiae that the prosecution story is a mix up of contradictory facts or facts which may not be inspiring confidence of the court as regards the very veracity of the prosecution story. It was contended that the informant stated that he had gone to Patna to submit the fees and forms of the appearing candidates of Intermediate Examination of the year 2006 into the Bihar Intermediate Council but why he was returning back along with the fees or forms has not been stated by him. He was also not producing any 6 document that he had travelled via Hajipur to Bettiah and there is no seizure of any document or even the bank drafts which were said to be kept inside the bag in spite of the admission by P.W.10 that the criminals after snatching the Raxin bag from him, had scattered the contains of the same around the place of occurrence. Contention further was that the police had made out a case that some part of the booty in the form of Rs.800/- was recovered from the possession of non-appealing convict Ranjeet Robert, but what happened of the remaining part of the booty has not been stated by any witness nor the police claimed that it had made any effort to recover the remaining part of the booty. The absurdity in the evidence was that no one states as to who picked up the pocket of the informant for relieving him of Rs.4800/- and if at all the story on recovery was to be believed, for sake of argument, it could be very difficult to believe that while running away, the accused persons were distributing the booty among themselves and that appears more absurd in the light of the fact that some of the booty is said to be recovered from Ranjeet Robert. Contention further was that the date of occurrence being of the year 2006 and there being no evidence that the appellant Chintu Thakur @ Chanchal Thakur had ever been seen by the informant or was acquainted with him, he was being identified for the 7 first time in court and on that basis he was being convicted. 7. On perusal of the evidence of P.W.10 in paragraph-20 what appears is that the witness has stated that he had gone to Patna from Bettiah for depositing the registration fee and forms of Intermediate students and that he had completed his work at Patna. Thus, what appears from the above evidence of P.W.10 was that he had deposited the fees and forms of aspiring Intermediate students who were to appear in the year 2006 at the Intermediate Examination and, as such, it could be presumed that the drafts which the witness could have carried for depositing the requisite fees in that behalf ought to have been deposited or handed over to the concerned officials of the Intermediate Council. As such, the allegation that the forms including a couple of bank drafts in favour of the Secretary of the Intermediate Council, Patna were lying in the bag is very difficult to be accepted. Moreover, the admission is that the bag was not taken away by the criminals. They simply opened the bag and scattered contents thereof around the place of occurrence. If that be so, then it was the ordinary supposition that the documents which had been scattered and at least the two bank drafts ought to have been picked up by the police and seized by preparing a seizure memo. But, what is the 8 story and the evidence is that the police seized the recovered knife and an amount of Rs.800/- recovered from the possession of non-appealing convict Ranjeet Robert by preparing the seizure memo. This appears sufficiently creating some room to doubt that the story which was told by P.W.10 as regards his claim of travelling by train from Hajipur to Bettiah, may not be acceptable. Moreover, 11 prosecution witnesses were examined, out of whom P.Ws.1, 2, 10 and 11 were stating before the court that the criminals were chased and two of them were apprehended, who were Ranjeet Robert and the present appellant Chintu Thakur @ Chanchal Thakur. The other witnesses who were independent and were of the locality do not appear supporting this fact that the present appellant was chased and arrested at the spot. 8. The other circumstance which was pointed out by Sri Pandey, the learned Amicus Curiae was that if at all there was a distribution of the booty as appears propounded by the prosecution by showing the recovery of Rs.800/- from non-appealing convict Ranjeet Robert, then why was it that the appellant was not found in possession of either a weapon or any part of the booty. This was creating a doubt in the veracity of the prosecution claim that the appellant was one of the criminals who had been arrested. Moreover, no independent person has come forward other than P.Ws.10 9 and 11 to say that the appellant had been arrested on chase. Remaining seven witnesses who were examined do not state anything about chase of any criminal by the police or any person of the locality and arrest of any criminal. It was, as such, contended that the story appears completely not acceptable. Moreover, when there was a clear suggestion to the informant that he was running a clandestine practice of hiring students who were desirous of obtaining degrees of Intermediate Standards and was, through the back door, getting them necessary admission cards from the Intermediate Council for appearing at the examination. My attention was drawn to the evidence of P.W.10 in which he has stated that he was neither an employee of any educational institution nor was getting any salary from any educational institution and he was simply doing the job at his own cost to ensure that students who were desirous of furthering their studies were properly registered as appearing candidates with the Intermediate Council for obtaining the basic degree for getting entry into the degree course of any college or institution. Moreover, the admission that in spite of having deposited the fees and forms he was still coming back with the two bank drafts which had been taken out from a particular bank for the purposes of paying fees of aspiring candidates creates a doubt as to why he should come back with the 10 drafts if he had deposited the two drafts in the Intermediate Council towards the fees for enrolling the students. 9. It is true that the appellant has been convicted under Section 395 IPC, but there is no specific role assigned to him and he was identified for the first time in court by P.W.10 and others. There are circumstances which have been pointed out by Sri Pandey which create a doubt in the veracity of the prosecution story and in that light, I find merit in Cr.Appeal No.323 of 2007 and the same is allowed. The conviction and above sentences passed upon appellant Chintu Thakur @ Chanchal Thakur is also set aside. The appellant Chintu Thakur @ Chanchal Thakur is in custody. He shall be released forthwith, if not wanted in any other case. 10. The court appreciates the assistance rendered by Sri Om Prakash Pandey in hearing Cr.Appeal No.323 of 2007 and in token thereof desires that a fee of hearing may be paid to Sri Pandey by the High Court Legal Services Committee, Patna. Patna High Court, Dated, the 26th day of September, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)