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2001 DIGILAW 534 (PAT)

Bishwanath Nut v. State Of Bihar

2001-07-05

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the order of conviction and sentence passed by 6th Addl. Sessions Judge, Chapra in Session Trial No. 311/97. The appellant was sentenced to undergo RI for ten years for the offence under Section 395, IPC. 2. The case of the prosecution, as stated in the fardbeyan of the informant (exhibit-2), was that in between the night of 2/3rd September, 1994, informant was sleeping in his house along with his son and his wife was also sleeping on a mat by his side. At 10.30 P.M. suddenly three young men approached the informant armed with torch and knife and asked him as to who sold ganja. Informants replied that he was not selling ganja and one of the three persons ordered for assault upon the informant. Then one person wielding chaku assaulted him with chaku. The informant identified the appellant and thereafter he raised alarm whereby elder brother of the informant, Uttim Ram, came there and he also raised alarm. In the meantime, the informant fled away from that place and went to the house of one Ram Jati Ram and thereafter there was bomb explosion near his house. Neighbours gathered and raised alarm. There was third explosion. Then the villagers were terrified and they halted themselves and subsequently, dacoits entered into the house and looted cash and other articles including ornaments from the person of Basmati Kuer. Informants neighbour Basmati Kuer was also assaulted with chhura causing injury on her hair. Thereafter dacoits entered into the houses of other villagers and committed loot and plunder and assaulted them with chhura and pistol. 3. The defence of the accused-appellant was of false implication. 4. Prosecution examined altogether nine witnesses. PW 9 was a formal witness who brought certain injury reports Exhibit 6 series. PW 8 and the I.O. PW 7 was a formal witness who brought on record seizure lists (Exhibits 1 and 1/1) and rest of the witnesses are victims of the loot and plunder in their houses and they all supported the loot in their houses. 5. The evidence of the witnesses is critised on the ground that the witnesses said that some of the inmates were assaulted with chhura as also pistol which were wielded by the accused-appellant. Moreover in the fardbeyan, it has been stated that the appellant was having chhura in his hand. 5. The evidence of the witnesses is critised on the ground that the witnesses said that some of the inmates were assaulted with chhura as also pistol which were wielded by the accused-appellant. Moreover in the fardbeyan, it has been stated that the appellant was having chhura in his hand. Besides that, some of the witnesses have stated that the accused was having a bag on his shoulder which contained bombs. Besides the above, no other dacoits were prosecuted or charge-sheeted nor any witness named the other dacoits. PW 2 admitted that there was enmity with the appellant because he was threatening her family members from before. 6. The circumstances is that 8 dacoits entered into the house of the victims and only the appellant was identified. Circumstances show that since the appellant was known to the victims, he may be falsely implicated. The allegation of threatening by the appellant has not been attributed to any kind of specific enmity as alleged by PW 2. From this circumstance it also transpires that perhaps when the police failed to find any clue regarding the alleged occurrence, appellant was picked up just to implicate him by way of exonerating police officer from improperly investigating the case and just to complete the formality of charge-sheeting some person in order to hide their own laxity. 7. The other doubtful circumstance is that one of the witnesses, PW 5, said at para 12 that the appellant was having MURATHA on his face. That means he was covering his face. In such a circumstance, it is not understandable how he was identified by the witnesses. It has not come in evidence of PW 5 that face of the appellant was uncovered. Other doubt is that appellant was having bomb in his possession. So it is not understandable why he will assault the victims with chhura and pistol when he was resisted in course of loot and plunder. Moreover, it is surprising that the appellant will carry chhura and pistol in his hands and if he was carrying fire-arms, he will easily use fire arm and not chhura. None of the alleged looted article has been recovered from the house of the appellant. The trial Court has recorded all the contradictions. Moreover, it is surprising that the appellant will carry chhura and pistol in his hands and if he was carrying fire-arms, he will easily use fire arm and not chhura. None of the alleged looted article has been recovered from the house of the appellant. The trial Court has recorded all the contradictions. He has referred to the Courts business to call out the truth from the nugget of confusion of the evidence of the witnesses; but the Court failed to take notice of the law that prosecution must prove its case beyond all reasonable doubts. 8. Of course, from the evidence of the witnesses, factum of dacoity may be proved. But the moot question was whether the appellant has participated in the alleged dacoity. The fact that he was known to the victim before dacoity, is well admitted. In such circumstances his implication at the instance of the police or at the instance of the villagers is very much probable. Contradictions which have been referred to are not minor. There is another circumstance which also goes against the prosecution. It is apparent from the evidence of PWs that the villagers had gathered after hearing the noise of bomb explosion and sound of firing etc., but none of the villager other than those who were victims of the loot and plunder were examined nor there was explanation for their non-examination. 9. Circumstances of the case, therefore, indicated that there was ample room for doubt regarding the alleged participation of the appellant in the alleged dacoity. So I thinks the prosecution had failed to prove its case beyond all reasonable doubts. 10. In the result, this appeal is allowed and the order of conviction and sentence passed against the appellant is hereby set aside. Appellant shall stand released forthwith if not wanted in any case.