IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.672 OF 2007 Against the judgment of conviction dated 15.06.2007 and order of sentence dated 18.06.2007 passed by Additional District & Sessions Judge, Fast Track Court-II, Darbhanga in Sessions Trial No.346 of 2005. 1. JAI NARAYAN SADA, Son of Paltan Sada, 2. AKLU MALLIK, Son of Late Shri Mallik, 3. RAM SEWAK SADA, Son of late Khobari Sada, 4. RAM PRASAD SADA, son of late Khobari Sada, 5. HARINDER SADA, son of late Khobari Sada, 6. VISHWANATH SADA, son of late Khobari Sada 7. SANICHAR SADA, Son of late Budhu Sada. All resident of village-Nista, P.S.-Singhwara, District-Darbhanga..... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Shri Vishwanath Prasad Sinha, Senior Advocate. S/Sri Sanjay Kumar Singh, Rajesh Kumar, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The seven appellants were charged with commission of offences under Sections 395 and 397 IPC by the learned Presiding Officer of Fast Track Court-II, Darbhanga for being tried in Sessions Trial No.346 of 2005 and by judgment dated 15.06.2007 all of them were found guilty of committing the two offences. The appellants were heard under Section 235 Cr.P.C. on 18.06.2007 and by an order of the same day, each of the 2 appellants was directed to suffer rigorous imprisonment for ten years for his conviction under Sections 395/397 IPC. The appellants have preferred the present appeal for assailing the conviction and sentence passed upon each of them. 2. Undisputedly, a dacoity appears committed in the house of the informant Pradeep Sah in the night intervening the 6th and 7th of March, 2005. It is also not disputed that some of the family members were assaulted and injured by the dacoits and properties were plundered both from the residential house as also from the house of his brother and others. The informant claimed having identified the appellant Vishwanath Sah and Sanichar Sada as amongst the dacoits and as such named them besides alleging that the two were accompanied by 8-9 other persons. 3. On the basis of the fardbeyan, Ext-2, the case was registered by Singhwara police station and the investigation was taken up by the police. During that course both appellants, namely, Vishwanath Sada and Sanichar Sada were arrested from their houses on 09.03.2005 and were remanded to judicial custody by an order passed on 09.03.2005. The police claimed that before being remanded to custody they were questioned by the police during which, one of them, namely, Vishwanath Sada made voluntary statement, i.e., Ext-3 in the form 3 of his confession and that led to recovery of three pieces of saree which was said to be the booty of the offence. Accordingly, the three sarees were seized by preparing seizure memo Ext-5. The recoveries were made from the water of a pond. As per the claim of the police, just stated, consequent upon the confessional statement of appellant Vishwanath Sada(Ext-3). This was the additional evidence in addition to naming the two appellants, namely, Vishwanath Sada and Sanichar Sada in the FIR. So far as the other appellants, namely, Jai Narayan Sada, Aklu Mallik, Ram Sewak Sada, Ram Prasad Sada and Harinder Sada are concerned their names appeared for the first time in court in Ext-3. The confessional statement of appellant Vishwanath Sada recorded by the police led to recovery of three pieces of saree from the water of a pond. In addition to the above, a few of the witnesses, like, P.Ws.3 and 4, identified them for the first time in court. In addition to that P.W.9 had identified appellant no.5 Vishwanath Sada as well. Except that evidence there is no evidence against appellants no.1 to 5, i.e., Jai Narayan Sada, Aklu Mallik, Ram Sewak Sada, Ram Prasad Sada and Harinder Sada. 4. The contention before me was that it was admitted that the two villages were contiguous to each other being separated by a pond, located in between the 4 two villages. It was further contended that witnesses have admitted in evidences that the residents of one village uses to visit the other village either in connection with their vocation or petty trades they were engaged in. Not only that the villagers of one village use to visit the other village in connection with manual labour. It was, as such, contended that it was not unusual to know the appellants both by their names and faces and probability was that on account of any petty differences, probably on account of wage dispute the two appellants, Vishwanath Sada and Sanichar Sada were implicated and subsequently the remaining five appellants were also implicated. As regards the confessional statement, attention of the court was drawn to some part of the statement to submit that the story of discovery of three sarees appears a fabrication and the two documents also appear fabrications by the police. 5. The village of occurrence was Mohanpur located in the same police station Singhwara. P.W.3 in paragraph-7 has admitted that they used to pass through village-Nista which was the village of residence of the seven appellants and further that the two villages were separated merely by a pond which was located in between the two. In the same paragraph, the same witness P.W.3 has admitted that the labourers from village Nista used 5 to come to his village for doing labour work. So far as the other witnesses are concerned, P.W.2 a lady Sitabiya Devi has admitted that she used to go into village-Nista for selling Murhi(roasted rice). P.W.4, the informant in paragraph-11 has admitted that he had seen the appellants earlier as well, but subsequently in order to erasing the effect of that particular line of his evidence he appears ignoring that the appellants had been seen by him since last one and half years. On the basis of the above evidence, which I have just noted it may be a statable probability that the appellants were all known by their names and their faces to the villagers of Mohanpur from which the witnesses were coming. There appears a probability also that they were quite known to each other and they were moving from one to the other village in connection either with their calling or any petty trade. As such, if the appellants were participating in the offence as may be the case with appellants no.1 to 5, there was no reason specially when the two of them were identified and named in the FIR as to why the remaining should not have been named as the participating dacoits. 6. In addition to the above, the evidence on which the learned trial Judge has based his order of conviction is coming out of Ext-3 which is the confession of appellant Vishwanath Sada recorded by the 6 police. The evidence regarding participation of appellants no.1 to 5 in commission of the offence being the confessional statement of a co-accused and that too recorded by the police, its effect may simply is naught. In that view there appears absolutely no evidence against appellants’ no.1 to 5. I have already dealt with the probability of the appellants being known to the witnesses and other villagers of village-Mohanpur and in that view the identification by the witnesses for the first time in court of the five appellants looses evidentiary significance. 7. As a result of the above discussion, what I find is that there was absolutely no evidence indicating the participation of appellants Jai Narayan Sada, Aklu Mallik, Ram Sewak Sada, Ram Prasad Sada and Harinder Sada and their conviction appears rather based on no evidence as a result thereof, they are acquitted of the charges for which they had been convicted. 8. So far as the two appellants, namely, Vishwanath Sada and Sanichar Sada are concerned, the solitary evidence of being named in the FIR on account of being identified appears inconsequential again for the same reason that the two were quite known to the informant and others of his family or to the villagers. I have already referred to the evidence which may raise the probability regarding the acquaintance of the 7 parties to each other. The informant has stated that some of the accused persons had put on a Pagari and had wore cloths on their persons. Thus, there appears an attempt by the culprits of camouflaging their identities. This appears natural. If persons are known to each other then camouflaging their identities is a natural conduct, then the identification of such accused persons could be very difficult. I have already noted that there was quite some probability the informant other were of knowing the appellants. On that account and for the reason that there is the defence of being falsely implicated due to some wage dispute, the appellants being named in the FIR can not be said to be unusual. It is common knowledge that even for petty things we do not hesitate to implicate persons whom we do not like or against whom we have some grudges. This appears a case in which the informant and his family members might have come together to implicate the two appellants. Besides the above, the evidentiary value of the recovery of three sarees appears completely eroded when I perused a couple of last lines of Ext-3, the recorded confession by the police of appellant Vishwanath Sada. It was stated in it that appellant Vishwanath Sada was arrested on 09.03.2005 by the officer-in-charge of Singhwara police station from a brick kiln and at his pointing the police in presence of 8 two witnesses had recovered from the public pond, from its western embankment, three sarees which were kept concealed there. This confessional statement (Ext-3) was recorded on 09.03.2005 at 3 P.M. The above lines which are the part of confessional statement clearly indicated that prior to recording of that particular statement (Ext-3), the recovery of three sarees had already been made. When one considers the seizure memo, Ext-4 one may find that the seizure, as per the police, was made on the same day, i.e., on 09.03.2005 at 17 hours(5 P.M.) that is two hours after the confessional statement was recorded by the police. I have already referred to the two lines which appear in confessional statement (Ext-3) which indicate, as if the recoveries had already been made prior to the recording of the confession. If that was so then the story of seizure and the document Ext-3 appears fabricated. This all the more creates a serious doubt about the veracity of the prosecution evidence. 9. In view of the above discussion, what I find is that the learned trial Judge was missing these important circumstances which were appearing from the prosecution evidence and on account of the misleading evidence, was passing completely unsustainable order of conviction. 10. In the result, the appeal is allowed. The appellants are acquitted of all the charges for which 9 they have been found guilty. The order of sentence passed upon each of them is also set aside. Appellants Vishwanath Sada and Sanichar Sada are in custody. They shall be released forthwith, if not wanted in any other case. The other five appellants, namely, Jai Narayan Sada, Aklu Mallik, Ram Sewak Sada, Ram Prasad Sada and Harinder Sada are on bail and each of them shall stand discharged from the liabilities of their respective bonds. Patna High Court, Dated, the 9th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)