IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.348 OF 1998 Against the judgment of conviction dated 15.09.1998 and order of sentence dated 16.09.1998 passed by Additional Sessions Judge-IV, Munger in Sessions Trial No.355 of 1984. 1. TANIK LAL BIND, Son of Late Sharwan Bind, 2. ORSHIL BIND,Son of Late Babu Lal Bind 3. NAGESHWAR BIND, Son of Late Chamru Bind 4. DABBU BIND, Son of Late Ramji Bind All residents of village-Sovandih, P.S.Kharagpur, District-Munger.... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Sri S.N.Prasad, Amicus Curiae 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 four appellants were put on trial by the learned Additional Sessions Judge, Munger after being charged for committing an offence under Section 395 IPC in Sessions Trial No.355 of 1984. The appellants were put on trial along with three others, namely, Kailu Bind, Rajendra Bind and Borban Bind while the appellants were held guilty of committing the offence. The above named three were acquitted of the charge. Each of the four appellants were directed to suffer rigorous imprisonment for four years for committing offence under Section 395 IPC. 2. As per the prosecution story dacoity was 2 committed in the house of P.W.1 and other houses, like that of P.Ws.2, 4 and 6. The initial case is that the dacoits came through the roof top of the house of P.W.1 Arun Kumar and entered through the stairs into his house and from there they opened the entrance of the house of P.W.1. From the same house of P.W.1 they scaled the partition walls of different houses and went inside those houses to plunder properties as may appear from the evidence of witnesses. The witnesses claimed identifying different dacoits and as such the names of nine dacoits were there in the FIR who were put on trial. However, trial of Puttan Bind and Ganesh Bind was separated leaving the seven accused on trial which finally ended in the impugned judgment. 3. The impugned judgment indicates that the four appellants were bearing two identifications each on account of being identified by P.Ws.1 and 2. P.W.1 Arun Kumar has stated that while he was at his roof top, the appellants and their companion dacoits came there after scaling the wall of the house and finally entered into the room where the witness was sleeping and he identified the appellants and other accused in the light of a lantern which was burning there. This was the story stated by P.W.1 in the FIR. However, while deposing in court, P.W.1 described the story of dacoity, did not claim identifing any dacoit in the 3 light of a burning lantern kept inside the room, rather stated that it was due to the light created by the flashes of torch lights by the dacoits that P.W.1 identified the four appellants and others. However, the learned trial Judge believed the evidence of P.W.1 that he had really identified the four appellants. 4. But when it comes to the evidence of P.W.2, he also stated that he had identified the present set of appellants, but the evidence when considered in the light of his admission in paragraph- 11, it becomes doubtful as to whether P.W.2 was naming the appellants on account of real identification by him or due to being tutored by P.W.1, his cousin. P.Ws.1 and 2 are first cousin between them appears admitted by P.W.1 in paragraph-5. He has stated in paragraph-11 that after the dacoits had gone Arun Kumar(P.W.1)had stated the names of the accused who had been identified and thereafter they sat together to ponder over the incident and stated the names of the dacoits. This very line of evidence creates a doubt regarding the claim of P.W.2 of identifying the dacoit himself. Moreover, P.W.2 claims identifying the dacoit inside his house as may appear from his evidence in paragraphs-1 and 2 but when the court was considering his evidence in paragraph-19, then it found that P.W.2 was stating that he identified the 4 dacoits when they were fleeing away. Thus, these two contrary facts make it unsafe to place reliance upon the evidence of P.W.2. 5. Admitted position is that the appellants were residents of neighbouring village-Kailashpur and there was a chronic dispute between the two villagers for drawing water from the canal for irrigating paddy crop. Witnesses have not admitted it but they have stated some facts which could raise that probability. If the appellants were known by name and face to P.W.1 and other witnesses then the normal conduct would have been that the appellants would never have dared so dangerously to commit dacoity by uncovering their faces and identities. This circumstance simply negates the claim of the prosecution. The admission by P.W.2 in paragraph-11 that after the dacoity was over they sat together to ponder over the situation and thereafter naming the accused itself is sufficient to infer that there was due deliberation and consultation between the witnesses as to how and whom to implicate as the dacoits in the alleged commission of dacoity. 6. I find from the perusal of the evidence that the appellants did not deserve to be convicted on the quality of evidence which was available on the trial court. They deserve to be acquitted by giving benefit of doubt and accordingly the four appellants, 5 namely, Tanik Lal Bind, Orshil Bind, Nageshwar Bind and Dabbu Bind are acquitted of the charge for which they have been convicted by allowing the present appeal. The four appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. 7. This court records with appreciation the assistance rendered by Sri S.N.Prasad, the learned Amicus Curiae who offered to assist this Court in absence of the counsel who was not appearing in spite of his name appearing in the cause list and, as such, this Court feels that Sri Prasad is entitled to one fee of hearing which has to be paid by Patna High Court Legal Services Committee. Patna High Court, Dated, the 29th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)