Criminal Appeal (SJ) No.660 of 2006 Against the judgment of conviction dated 26.07.2006 and order of sentence dated 27.07.2006 passed by Additional District & Sessions Judge, Fast Track Court No.IV, Aurangabad in Sessions Trial No.330 of 2004/231 of 2004 arising out of Obera P.S.Case No.101 of 2004, G.R.Case No.1582 of 2004. 1. NAND MISTRY & 2. BIRJA MISTRY.... .... Appellants Versus State Of Bihar... .... Respondent For the Appellants: Sri Krishna Prasad Singh, Sr. Advocate S/Sri Meena Singh, Manish Kr. No.3, 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 two appellants stand convicted by judgment dated 26.07.2006 passed by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court No.IV, Aurangabad in Sessions Trial No.330 of 2004/231 of 2004 for committing an offence under Section 395 IPC and have been directed by the learned trial Judge to suffer rigorous 2 imprisonment for ten years each as also to pay a fine of Rs.2,000/- each, in default of which the two appellants have been directed to suffer simple imprisonment of one year. The appellants have chosen to assail the order of conviction and sentence through the present appeal. 2. As per the prosecution story which is narrated by P.W.4 Nand Pandey in his fardbeyan, is that some dacoits entered inside his house and after assaulting the informant and others, asked them to deliver properties including their ornaments. Accordingly, they looted away the articles or properties which are listed in the fardbeyan(Ext-1) of P.W.4. 3. The case was investigated into by P.W.6 and after finding material sufficient the appellants were sent up for trial as they were also named as two dacoits who had been identified during commission of dacoity. 4. Arguing the appeal Sri Krishna 3 Prasad Singh, Sr. Advocate, appearing on behalf of the appellants has raised a very limited question by reference to the evidence of P.Ws.2, 3 and 4 who are Guriya Kumari, daughter of the informant, Lilawati Devi and the informant himself to submit that it is quite absurd and unacceptable that the two appellants who were next door neighbours of the informant and who were well-to-do persons, could be going to commit dacoity inside the house of P.W.4 without taking any precaution to camouflage their identification when two unknown persons as per the evidence of P.Ws.2, 3 and 4 had made serious attempts on concealment of their identities. It was contended that evidence of P.W.4 in paragraph- 18 further makes it doubtful that the appellants had really been identified as among dacoits who had committed the offence. 5. P.W.2 in paragraph-14, P.W.3 in paragraph-9 and P.W.4 in paragraph-14 have 4 stated that there were 10-12 dacoits who had committed the offence by plundering the belongings of the informant from his house. It has been stated equivocally by the three witnesses that out of the band of dacoits two had taken serious precautions for concealing their identities but these two appellants who were next door neighbours and well acquainted to him and his family members were bare face. 6. After having perused the evidence referred to above witnesses, like, P.Ws.3 and 4, this Court is simply compelled to reject the evidence of identification of the two appellants by the informant and others only on this score that persons who were not known to the inmates of the house, like, the informant and his wife or children had gone to commit dacoity without concealing their identities, whereas the evidence indicated that unknown persons had seriously concealed their identities by putting on articles so as to 5 camouflaging their identities. This is best illustrated by P.W.2 Guriya Kumari in paragraph-14 of her evidence when she stated that two dacoits out of the band of 10 or 12 had made attempts so seriously that even their lock of hairs were not popping out of the Galmochha. If this could be the attempt of unknown persons then it is simply absurd to believe that next door neighbours could go without concealing their identities to commit dacoity. 7. The other aspect which makes the story about the participation of the two appellants in the commission of the dacoity doubtful, is the evidence of the informant himself who has stated in paragraph-18 that after committing dacoity, a lot of persons came at his door and he did not divulge to any of his villagers the names of the two appellants. It was contended that if the appellants had been identified during the 6 course of dacoity the normal human conduct of the informant would have to have shouted at the top of his voice so as to making it known to the whole world that his two next-door- neighbours, like, Nand Mistry and Birja Mistry were also among the dacoits whom he had identified. The silence of the informant just after the incident and for the whole night in spite of have identified the appellants, makes it doubtful that he had really identified anyone. This situation is more compounded by the fact that the informant did not go to the police station for lodging the report instantaneously in the night if he had identified the two appellants. 8. The reason for false implication has not come very cleanly out of the evidence of the witnesses but when one peruses the evidence of P.W.4 the informant of the case which has come in paragraps-6 and 7, one could find that the informant might be distracting 7 the appellants on account of a fallen tree probably being claim by the appellants to be theirs, whereas the informant was treating it as belonging to the public. It is not unknown in our society that we nurse grudges even on very trifle matters and we do not allow the simple opportunity to slip out of our hands when it comes to settle scores with our enemies or persons against whom we nurse grudge or the bad feeling. We might have been free as an independent democratic society for the last 67 years, but the ground reality existing in the villages are so disturbing that many fellow citizens still feel fear in treading on public path way by putting shoes on their feet. These are some of the realities which show that we have really failed in ushering in a casteless and fearless, real democratic, society. 9. Be that as it may, considering the evidence which is available on the lower court 8 records, the Court feels that the conviction of the appellants under Section 395 IPC was completely outside the inferences which could be drawn from the evidence adduced on record, as a result of which the appeal succeeds. The judgment of conviction is hereby set aside. The two appellants are acquitted. The two appellants are in custody. They are directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 12th day of July, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)