Criminal Appeal (SJ) No. 3 of 1999 ~~~~~~ Against the judgment of conviction dated 18.12.1998 and order of sentence dated 22.12.1998 passed by Shri Saket Bihari Ambastha, learned 6th Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 86 of 1985. ~~~~~~ 1. Khobhari Sharma, Son of Naresh Sharma. 2. Ramyadi Bind, Son of Ram Swaroop Bind. 3. Nathuni Bind, Son of Ram Dhani Bind. 4. Kharpatu Bind, Son of Late Ram Swaroop Bind. All residents of village Gorar, P. S. – Durgawati, District Kaimur at Bhabhua. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Ramakant Sharma, Sr. Advocate. Mr. Rajesh Kumar, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged by the informant Bishwanath Sah is that in between the night he along with his nephew Prabhu Sah were sleeping in the chamber of “Marai” to watch the motor. However, in the night at about 1:00 P.M. six persons came. They came and assaulted with lathi and pistol out of which he identified four accused, namely, Ramyadi Bind, Kharpato Bind, Nathuni Bind and Khobhari Bind in the light of bulb at chamber but could not identify two persons. It is alleged that on seeing Ramyadi Bind, the informant said that he has identified them (accused) and then accused Nathuni Bind ordered to kill and fired on the informant. Ramyadi Bind also fired on his nephew and both of them injured. The accused person fled away along with the motor and 2 starter. On the sound of firing his nephew Narayan Sah and several people of Khampaura village and Gorar village came and they saw the accused persons fleeing away. 4. On the fardbeyan, First Information Report was lodged and after investigation charge-sheet was submitted. 5. During the trial three witnesses were examined and have come to support the prosecution case. P. W. 1 is Pramod Singh, P. W. 2 is Moti Sah and P. W. 3 is Pramod Singh who is a formal witness. The trial court taking into consideration the evidence of P. W. 1 that he supported the prosecution case about assault and taking of the electric motor and his evidence about injury on the informant and however, taking into consideration the evidence of P. W. 2 having supported the prosecution case, convicted the appellants. 6. Learned counsel for the appellants, however, contended that the informant in this case has not been examined. The prosecution case is that they were injured but the injury has not been proved and the evidence of P. W. 3 who is only the formal witness who has proved the Exts. 1 and 2. P. W. 2 though have reached the place of occurrence but not an eye witness to the occurrence nor a witness of the assault. The evidence of P. W. 1 does not inspire confidence. The appellants were convicted on the sole testimony of P. W. 1 which suffers from various infirmities. 7. However, taking into consideration the evidence in the light of the submissions made by the learned counsel for the appellants I find that the informant Bishwanath Sah has not been examined in this case and it has been reported that Bishwanath Sah had died during the trial. P. W. 3 is the formal witness who is formally proved and hence is not a material witness. P. W. 2 is the nephew of the informant and has claimed that he reached to the place of occurrence and found Bishwanath Sah and Prabhu Sah in injured state, hence, apparently not an eye-witness to the occurrence. 3 However, he has stated that he did not saw any dacoit. He has stated that Gulab Makhjan and Bashisth Chamar disclosed that they identified Ramyadi Bind, Kharpatu Bind, Nathuni Bind and Khobhari Lohar fleeing away in the torch light. However, Gulab Makhjan and Bashisth Chamar have not been examined. Hence, the evidence of this witness about identification is hit by hearsay is of no consequence regarding the identification and involvement of the appellants. However, the only witness remained is P. W. 1 and he has stated that accused persons came when they were sleeping in the chamber and they assaulted them by firearm and the accused persons took away the motor of five horse power along with starter and they identified the dacoits in the light of the bulb liting in the chamber. He has further stated that after some-time of the firing various persons of the village Moti Sah, Narain Sah, Sahdeo Harijan, Bikram Harijan, Gulab Makhjan, Bashisth Chamar came. He has further stated that Gulab Makhjan and Bikram Harijan of different village also came and they disclosed that all the four accused persons have fled away and they have identified them in the torch light. However, Moti Sah, Narain Sah, Sahdeo Harijan, Bikram Harijan, Gulab Makhjan and Bashisth Chamar have not been examined in this case and hence there is no corroboration of the evidence of P. W. 1. P. W. 1 has further stated that on next date they went to the Durgawati block where they were treated by the doctor and the Sub- Inspector recorded the statement of Bishwanath Sah. However, neither the doctor nor the Sub-Inspector has been examined to support the prosecution case about the injury or about the recording of the statement of the informant. 8. Hence, taking into consideration the entire evidence in cross-examination in chief, there is no corroboration to the evidence of P. W. 1. However, in cross- examination he has stated that the night was dark and the place of occurrence was at a distance of about four meters where from his village and Khampaura village is the nearest to the place of occurrence. At the time of occurrence Moti Sah, Narain Sah, 4 Sahdeo Harijan, Bikram Harijan of Khampaura village have come to support the prosecution case but these persons have not been examined. He has further stated that they first went to the village and there they consulted among themselves to file a case and the family members impressed to mention the name of accused persons. However, this itself indicates that before filing the case there was due deliberation about the name of the accused persons and for the occurrence took place at about 12:00 – 1:00 O’clock in the mid night and immediately the villagers rush to the place of occurrence but the First Information Report lodged on the next date on 9:00 A. M. after due deliberation and in such circumstance it is not proper to rely on evidence of P. W. 1 without any corroboration. However, there is no corroboration to the evidence of P. W. 1 there is corroboration by medical evidence nor the I.O. has come to support nor any witness has come to support the prosecution case. However, it is stated that the witnesses saw the accused persons fleeing away but none has stated about their fleeing away along with the motor of five horse power. He has further stated in his evidence that the motor which the dacoits took away was in the well at the depth of 15 feet and P. W. 1 was sleeping in the “Marai” on a cot. However, if the dacoits having intention to take away the motor, there was no occasion to enter and assault prosecution party in the chamber. 9. However, taking into consideration the entire evidence except the evidence of P. W. 1 there is neither any evidence to support the prosecution case nor any corroboration by any other witness nor the I.O. has come to corroborate and establish the place of occurrence nor the means of identification has been established. Hence, it is not proper under the facts and circumstances to convict the appellants on the evidence of sole testimony of P. W. 1 which suffers from various infirmities and hence the appellants are entitled to benefit of doubt and hence I extend the benefit of doubt and I find and hold that the prosecution has not been able to prove the charges beyond 5 reasonable doubt hence the order of conviction and sentenced recorded by the lower court is hereby set aside. Accordingly, this Appeal is allowed. The appellants are ordered to be discharged from the liability of their bail bonds, if any. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 17th October, 2011. N.A.F.R./Kundan.