1 CRIMINAL APPEAL No.112 OF 2005 ------------ Against the judgement of conviction and sentence 16.12.2004 and 18.12.2004 respectively passed by Shri Kamla Prasad, Additional District & Sessions Judge,Fast Track Court-Ist Madhepura in Sessions Trial No. 125 of 1987. ---------- BHOLA GORDHI @ BHOLA GORHI @ SINGH---------Appellant Versus STATE OF BIHAR --------------------------- Respondents For the Appellant : Mr.Anil Kumar Singh,Advocate Mr. B.N.P.Singh, advocate For the State : Mr. S.Azeem, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------------ Rakesh Kumar J : Heard Mr. Anil Kumar Singh, learned counsel for the sole appellant and Mr. S. Azeem, learned ,Additional .P.P. The appellant was convicted for the offence under section 396 of the Indian Penal Code and was sentenced to R.I. for ten years. He was also imposed a fine of Rs. 5000/-. It was directed that in case of non- payment of fine the appellant will have to undergo further imprisonment for three months. The judgment of conviction was passed on 16th December, 2004 and order of sentence was passed on 18th December, 2004 in Sessions Trial No. 125 of 1987 by Shri Kamala Prasad, Additional District and Sessions Judge,Fast Track Court-Ist ,Madhepura. The fact of the case is that on 8.3.1984 one Labhu Sah son of Guni Sah, village Durgapur Telia Toli, P.S. Chausa, Dist. Madhepura , gave his fardbeyan at 9.30 A.M. near the door of his house disclosing therein that in the preceding night i.e. on 2 7.3.1984 at about 11 P.M. while he along with his son Prakash Sah (deceased) and co-villagers namely Bishundeo Sah,(P.W.3) Baldeo Sah (P.W.5), Nawal Sah(P.W.4) and Jageshwar Sah (not examined) was near bonfire and in semi sleep position, suddenly 14/15 dacoits lighted their torch and came to his door. Immediately thereafter the said dacoits tied both hands of his son Prakash Sah and about four dacoits overpowered other persons. Amongst the dacoits two were carrying country made pistol and 4/5 dacoits entered into his courtyard and few dacoits were moving here and there by using their torch light. Subsequently in course of committing dacoity the dacoits opened fire which hit the head of the son of the informant Prakash Sah (deceased) and immediately thereafter he died. Few dacoits took the informant outside the house and keeping in view the old age of the informant they left him. He noticed after interring his house that one door of a room was broken where his daughter-in-law (wife of deceased Prakash Sah) was sleeping. It was disclosed that during the course of dacoity several articles were also looted from the house of the informant. On the basis of the fardbeyan of Labhu Sah first information report vide Madhepura P.S. case No. 20 of 1984 was registered on 8.3.1984. The first information report was lodged against unknown for the offence under section 396 of the Indian Penal Code. During the course of investigation the appellant Bhola Gordhi who was co-villager of the informant was arrested and forwarded. During investigation test identification parade was also conducted on 11.4.1984. In the test identification parade the appellant was identified by the informant Labhu Sah, Nawal Sah and JaiMala Devi. After completing investigation against the present appellant the police submitted charge sheet on 7.11.1984. 3 After cognizance the case was committed to the court of sessions on 6.7., 1987 and charge under section 396 of the Indian penal Code was framed against the present appellant on 9.3.1995 and he was put on trial. During the trial in support of its case prosecution examined altogether six witnesses. It is appropriate at this stage to give the name of the witnesses who are as follows; P.W.1 Md. Nejam (formal witness), P.W. Jaimala Devi (wife of deceased Prakash Sah), P.W.3 Bishundeo Sah (co-villager), P.W.4 Nawal Sah( co-villager), P.W.5 Baldeo Sah (co- villager) and P.W.6 Shivdayal Sah. It is also necessary to indicate that during the trial prosecution did not examine the investigating officer of the case, the doctor who conducted postmortem on the dead body of the deceased Prakash Sah and the learned Magistrate who had conducted the test identification parade. The informant was also not examined since he died. The prosecution has also not brought on record the postmortem report by way of exhibiting the same nor formal fardbeyan was got proved. Similarly the test identification parade report was got proved and marked as Ext.-2 by P.W.6 who claimed to be Karpardaz. Of course while ext-2 i.e. the T.I.P. chart was got proved by the prosecution no objection was raised by the defence and as such after the T.I.P. chart was proved without any objection , the same can not be ignored. Out of six witnesses who were examined on behalf of the prosecution P.W.3 Bishundeo Sah and P.W.4 Nawal Sah turned hostile during the trial. So far PW.5 Baldeo Sah is concerned, 4 though he has supported the case regarding commission of dacoity with murder in the house of informant; he did not support the prosecution case in respect of involvement of the present appellant. This witness in paragraph -9 has categorically stated after identifying the appellant in dock during the trial that he was not member of the dacoit. P.W.2 Jaimala Devi wife of deceased Prakash Sah in her deposition during trial has stated that when the occurrence took place she was sleeping in her room and her husband was near bonfire at the door. On hearing noise she arose and sat on her bed. She has further stated that dacoits broken the doors and interred into the house. She has stated that 6 to 7 persons entered inside the house and they were lighting the torch. She claimed that in the torch light of accused persons she identified the dacoits. Amongst them she claimed that she identified the appellant who was present in dock. She stated further that she has identified this appellant during the test identification parade. She further deposed that this appellant had taken her ear ring and chain from her neck. She stated in her deposition that after committing the crime when all the accused persons fled away she went to the door along with her mother-in-law and found her husband died due to injury caused by firearms. In cross-examination she stated that she was knowing the appellant by his name since about one or two years back. On the question asked by the court she replied that she came to know the name of this appellant from her father-in-law (informant Labhu Sah) and mother-in-law. Accordingly on examination of evidence of prosecution witnesses it is clear that only P.W.2 Jaimala Devi has named the appellant in the present occurrence. The first information report 5 was lodged on the basis of fardbeyan of father-in-law (Labhu Sah) of P.W.2 Jaimala Devi. If the deposition of Jaimala Devi is accepted on the point that she came to know about the name of appellant from her father-in-law who was informant in the present case it would be difficult to perceive that how the informant while giving fardbeyan before the police regarding the occurrence did not name the appellant in the first information report as one of the accused. Non-mentioning the name of the appellant in the first information report creates serious doubt in the mind of the court regarding involvement of the appellant in the present case. Besides the non-credibility of deposition of the sole eye witness namely Jaimala Devi, P.W.2 there are several discrepancies’ in the present case. First of all I may indicate that the appellant who was co-villager of the informant has never been alleged that during the course of dacoity he had concealed his face and if there is no allegation of concealment of face then it is difficult to believe that how the informant did not identify the appellant during the said occurrence. It is specific case of the prosecution that at the time of occurrence besides informant and his inmates, co-villager P.W.3, P.W.4 and P.W.5 were present at the place of occurrence, however non of them have claimed to identify the appellant. Moreover in a case of dacoity by co- villagers non concealment of face by the such dacoit creates serious doubt on the credibility of the prosecution case. The occurrence is said to had taken place at 11 P.M. in the night on 7.3.1984 and fardbeyan was recorded on 8.3.1984 at 9.30 A.M. and as such there were sufficient time available to the informant to give the name of the appellant in his fardbeyan had he been involved in the said occurrence. 6 Though the appellant was charged for the offence under section 396 of the Indian Penal Code the prosecution did not take any step to prove the postmortem report during the trial nor the doctor who had conducted the postmortem on the dead body of the deceased Prakash Sah was examined during the trial. In the present case the investigating officer has also not been examined. Of course it is true that non-examination of investigating officer does not vitiate the trial but in the facts and circumstances of the present case non-examination of investigating officer has seriously prejudiced the case of the appellant. At this stage it is necessary to indicate that P.W.2 Jaimala Devi in paragraph 6 during her cross-examination has categorically stated that du ring investigation her statement was recorded by the police. She further states that she has not disclosed the name of the appellant in her statement before the police. The admission of P.W.2 Jimalal Devi regarding non-mentioning of the name of the appellant before the police in her statement recorded under section 161 Cr.P.C. indicates that mentioning of the name of the appellant during the trial was nothing else but an afterthought. It is necessary to indicate that the appellant on the date of conviction i.e. on 16.12.2004 was about 65 years old. After the judgment he was taken into custody and since then he is continuously in jail. It has also been claimed by the learned counsel for the appellant that even before the conviction and sentence he remained in jail for about two years. Keeping in view the facts and circumstances and material discussed above, I am of the view that the prosecution has not proved its case beyond all reasonable doubts and as such the appellant is acquitted from the charge of section 396 I.P.C. The 7 judgment of conviction and sentence dated 16.12.2004 and 18.12.2004 respectively passed in S.Tr. No. 125 of 1987, by Sri Kamla Prasad, Additional District and Sessions Judge, Fast Track Court-Ist, Madhepura, is set aside and it is directed that the appellant be released forthwith if not wanted in any other case. In the result this appeal is allowed. However, there will be no order as to costs. (Rakesh Kumar, J) Patna High Court, The 6th Jan. 2010 Rahman/(AFR)