Abbas Mian v. State Of Bihar — 1999 DIGILAW 1340 (PAT)

Judgment A.K.PRASAD, J. 1. The sole appellant has been convicted under Section 395, IPC and sentenced rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to suffer simple imprisonment for one month, vide judgment dated 10th June, 1999, and order of sentence dated 14th June, 1999, in S.T. No. 46/97 rendered by Sri D.N. Upadhyay, 1st Addl. Sessions Judge, Giridih. 2. Briefly stated, the prosecution case as made out in the fardbeyan (Ext. 4) is as under : In the night on 5.2.1996, Kasim Mian (PW11), the informant, and his family members, after taking their food, were sleeping in the house situated at village Harkhi, within the P.S. Dhanwar, District-Giridih. At about 11.00 p.m., on the call given by the appellant, Abbas Mian, his co-villager, the informant opened the door, whereupon the appellant, whom the informant identified in the moon-light, along with 4-5 mask associates, variously armed, entered the courtyard, over-powered and tied the informant, they ransacked the rooms, broke open the boxes, committed theft of cash, ornaments and other valuables. The dacoits operated for an hour and they decamped with the booty. Sahida Khatoon, PW 5, the daughter-in-law of the informant, had identified Md. Kalim, son of the appellant, among the bandits. The Police Officer (PW 16), the then Officer-in-charge, Dhanwar P.S., got information based on rumour on 6.2.1996 around 12.15 a.m. that there was hulla coming from the side of Harkhi village, on the basis of which he recorded the station diary entry No. 127 dated 6.2.1996 and proceeded to village-Harkhi to ascertain and verify the matter. Ultimately, on 6.2.1996 at about 1.00 a.m. he recorded the fardbeyan. of the informant at his home. On the basis of the fardbeyan, the present case came to be instituted, formal FIR (Ext. 6) was drawn up, the Police Officer (PW 16) assumed and commenced investigation and on completion of investigation, charge-sheet was laid in the Court against the appellant and some other accused. The case was ultimately committed to the Court of Sessions on 26.2.1997 by the S.D.J.M., Giridih. 3. The main defence of the appellant is of innocence, denial of his participation in the occurrence and false implication due to previous enmity. 4. Co-accused Gulam Mustafa, Qaiyum Ansari and Md. Kalim Mian, who were jointly tried with the appellant, were acquitted in the case by the trial Court. 3. The main defence of the appellant is of innocence, denial of his participation in the occurrence and false implication due to previous enmity. 4. Co-accused Gulam Mustafa, Qaiyum Ansari and Md. Kalim Mian, who were jointly tried with the appellant, were acquitted in the case by the trial Court. 5. The factum that the dacoity took place in the house of the informant (PW 11) is not in dispute. The informant and other family inmates have testified to this effect. The Investigating Officer (PW 16), on the inspection of the spot, had found that the household articles in two rooms were scattered and he had also found two empty boxes and an attache broken which were seized by him (vide Ext. 5). The objective find of the Investigating Officer on the spot lends assurance to the factum or dacoity. 6. While assailing the impugned conviction, the learned counsel for the appellant, has urged that the appellant lives in the neighbourhood of the informant and it is inconceivable that he would venture to commit dacoity in the house of the informant without taking the precaution to conceal his identity by covering his face, when the other bandits wore mask; that the evidence on PW 1 as well as that of the Investigating Officer (PW 16), gives an inkling that there was some enmity between the parties concerned; that the evidence of PWs 5,6,11, 14 and 15 on the identification and participation of the appellant in the dacoity is contradictory and unreliable; that co-accused Kalim, the son of the appellant, whom PWs 5, 6 and 11 named and identified at the trial, has been acquitted by the trial Court, that no incriminating article is alleged to have been recovered from the possession of the appellant, and in the facts and circumstances of the case, the appellant, at least, is entitled to the benefit of doubt. 7. Mr. N.N. Mahto, the learned counsel for the State, on the other hand, has supported the impugned judgment. The point that falls for consideration is as to whether the prosecution has been able to substantiate the charge under Section 395, IPC against the appellant beyond shadow of all reasonable doubt. 8. 7. Mr. N.N. Mahto, the learned counsel for the State, on the other hand, has supported the impugned judgment. The point that falls for consideration is as to whether the prosecution has been able to substantiate the charge under Section 395, IPC against the appellant beyond shadow of all reasonable doubt. 8. PW 11, Kasim Mian, informant, has stated that on the call of the appellant, he had opened the door, thereafter he and 5-6 other bandits, who were wearing galmocha, entered his house, committed dacoity and in the end, he further states that he had identified Abbas Mian and his son, Kalim Mian, among the bandits. He did not claim to have identified Kalim, the appellants son, in the fardbeyan (Ext.4). PW 6, Safri Khatoon, his wife, claims to have identified the appellant and his son, Kalim, among the dacoits. She has further stated that she could not identify the other culprits. She has further deposed that on their call, the door of the house had been opened. But, the Investigation Officer (PW 16) has stated that she did not name Kalim as one of those who had given the call to open the door. PW 5, Sahida Khatoon, daughter-in-law of the informant, claims to have identified the appellant and his son Kalim in the torch light. She asserts to have stated before the Investigating Officer that she had identified the appellant, Abbas Mian, on the spot at the time of occurrence. But PW 16, on the other hand, has stated that PW 5, Sahida Khatoon, did not name the appellant, Abbas Mian, before him as one of the culprits. Therefore, the testimony of PW 5 on the identification of the appellant is not trust-worthy. 9. Jaituna Khatoon, PW 14, another daughter-in-law of the informant, has stated that the dacoits have entered her room and relieved her of the ornaments on her person. She claims to have identified the appellant by voice, which is a weak type of evidence. She states that on the day of dacoity, the appellant had meal at her house. From the evidence of PW 1, it appears that since before the occurrence the parties were not on talking terms. Is it believable against this backdrop that on that day, the appellant took food at the place of informant ? 10. She states that on the day of dacoity, the appellant had meal at her house. From the evidence of PW 1, it appears that since before the occurrence the parties were not on talking terms. Is it believable against this backdrop that on that day, the appellant took food at the place of informant ? 10. PW 15, Rashida Khatoon, a grand-daughter of the informant, has stated that she was sleeping on that night in the room of her Aunt which was ransacked by the bandits and she identified the appellant as one of them. She claims in her chief-examination that she had identified the appellant. Abbas Mian, among 4-5 bandits who had entered and ransacked the room but in her cross-examination, she has admitted to have stated before the police that she did not identify any culprit/bandit. Thus, the evidence of PW 15 on the identification of the appellant is self-conflicting and unworthy of credence. PWs 1, 2, 3 and 4 have stated that when they went to the spot, soon after the occurrence, the informant had disclosed the name of the appellant as one of the culprits involved in the dacoity. 11. On analysis of the evidence, now there remains the evidence of PWs 6 and 11, which requires deeper consideration on the participation of the appellant in the dacoity, in the setting of facts and circumstances of the case. 12. The testimonies of PWs 6 and 11, on the involvement of co-accused, Md. Kalim, the son of the appellant, have not been accepted by the trial Court as credible to found his conviction. The house of the appellant is at a distance of about 25 yards from that of the informant, vide deposition of PW 6 in paragraph No. 3. The evidence of PW 1 shows that there was strained relationship between the parties. PW 15 has stated before the Investigating Officer that there was quarrel between the informant and the. appellant. The Investigating Officer, PW 16, has stated that during the Investigation, it had come that there was previous enmity between the parties. When the appellant lives in the neighbourhood and is well-known to the informant and his family members and there was background of previous enmity between the parties, it seems highly improper that he would have gone to commit dacoity in the house of the informant without taking precaution for concealing his identity. When the appellant lives in the neighbourhood and is well-known to the informant and his family members and there was background of previous enmity between the parties, it seems highly improper that he would have gone to commit dacoity in the house of the informant without taking precaution for concealing his identity. This circumstance assumes greater importance when other bandits are said to have covered their faces with galmocha. It has come in the evidence of the Investigating Officer, PW 16, that during investigation, no instance of bad antecedent of the appellant came to the light. A vetagen criminal could have ventured to commit dacoity in the house of his neighbour without taking precaution to conceal his identity. There may be suspicion against the appellant but suspicion howsoever strong cannot take place of proof. 13. In the facts and circumstances of the case and in view of the discussions made above, I find that the evidence of the PWs on the identification of the appellant is contradictory and it would be unsafe to sustain the conviction oi the appellant under Section 395, IPC. In my considered view, the prosecution has not been able to substantiate the charge under Section 395, IPC against the appellant beyond all reasonable shadow of doubts. 14. In the result, this appeal is allowed. The conviction and sentence of the appellant under Section 395, IPC is set aside. The appellant is acquitted of the charge under Section 395, IPC on giving benefit of doubt. He is directed to be set at liberty at once, if not wanted in any other case(s).