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2001 DIGILAW 750 (PAT)

Jagdish Mahto v. State Of Bihar

2001-08-17

INDU PRABHA SINGH

body2001
Judgment Indu Prabha Singh, J. 1. The sole appellant convicted . under Sections 395 and 412 of the Indian Penal Code and was sentenced to undergo RI for seven years on both accounts. However, both the sentences were ordered to run concurrently. 2. The prosecution case in short is that in the night of 5/6th April, 1984 at village Jamunia, P.S. Nautan there was dacoity in the house of Bishwanath Mahto, Rahman M. Ansari and in the shops of Amin Mian and Rajwansi Mahato in which properties were looted away by dacoits. It has been stated that when the informant Bishwanath Prasad was sleeping in the Janani Kita of his house, there were about 15 to 16 dacoits who entered into the courtyard by breaking the door. It has been stated that some of the dacoits forcibly broke open the door of his room and assaulted his father and he sustained injuries. The family members of. his house then came out in the courtyard. It has also submitted that the father of the informant was kept confined on his Baranda and the dacoits flashing their torches and started looting away articles from the house of the informant about half and hour. Some of the dacoits had covered their faces and some of them had not covered their faces. The description of the dacoits has also been stated in the FIR. It has also been stated that the dacoits were armed with bhala and lathi. Thereafter, dacoits taking the articles of the house fled away leaving their shoes and other old clothes. Thereafter, statement of the informant was recorded and the FIR was lodged against unknown. An FIR was lodged by Bishwanath Prasad on 6.8.1984 at 10.30. a.m. The police after investigation submitted charge-sheet against the accused persons. On 6.1.1986 accordingly cognizance was taken and case was committed to the Court of Sessions Consequently, the trial concluded and accused persons convicted, hence this appeal. 3. The appellant had pleaded not guilty and has stated that he has been falsely implicated. 4. The prosecution, in support of its case, examined altogether ten witnesses. PW 1 is Ali Hussain Mian, PW 2 is Bishwanath Prasad, the informant of this case, PW 3 is Abdul Rahman, PW 4 is Rajbansi Prasad, PW 5 is Md. 3. The appellant had pleaded not guilty and has stated that he has been falsely implicated. 4. The prosecution, in support of its case, examined altogether ten witnesses. PW 1 is Ali Hussain Mian, PW 2 is Bishwanath Prasad, the informant of this case, PW 3 is Abdul Rahman, PW 4 is Rajbansi Prasad, PW 5 is Md. Amin, PW 6 is Aklu Mian, who is tender witness, PW 7 is Latif Mian, a tender witness, PW 8 is Jhakar Hajra, a tender witness, PW 9 is Dukhi Raut, a tender witness and PW 10 is Chandra Kishore Prasad, formal witness, who had proved exhibits 3 and 4, since the prosecution did not examine Jamuna, Tapeshwar and SI, Bishwanath Singh. Therefore, on the question of recovery (exhibit 4) has been formally proved by PW 10. PWs 6, 7, 8 and 9 are tender witnesses. PW 1 was injured and has not supported the case and was declared hostile. PW 2 supported the factum of dacoity but he did not identify any of the dacoits. He has stated that he did not see the utensils in the house of the appellant, Jagdish Mahto. PW 3 has also supported the factum of dacoity in the house of the informant. However, he stated that among looted articles there was Phoolhi Thali and Lota on which his name was inscribed but he has not supported that the same was recovered from the house of the appellant, Jagdish Mahto. He further stated that he saw the Phoolhi Thali and Lota at police station. PW 5 has also supported the factum of dacoity but did not state anything about identification of the appellant. 5. Learned counsel appearing for the appellant has submitted that the appellant was not named in the FIR neither he was identified in T.I. parade by any of the witnesses which was held on 27.4.1984. Even articles, Phoolhi Thali and Lota alleged to have been recovered from the house of the appellant though identified by witness but the Magistrate who conducted the T.I. parade of the stolen articles was not examined neither I.O. has been examined. Simply PW 10 has proved the seizure list and no seizure list witness was examined. Even articles, Phoolhi Thali and Lota alleged to have been recovered from the house of the appellant though identified by witness but the Magistrate who conducted the T.I. parade of the stolen articles was not examined neither I.O. has been examined. Simply PW 10 has proved the seizure list and no seizure list witness was examined. From the perusal of the evidence recorded it is clear that the appellant was not named in the FIR and he was not even identified in the T.I. parade which was conducted on 27.4.1984 by the any witness. Even alleged recovery of Thali and Lota from his house has not been supported by any of the witnesses and thus not proved. 6. In view of the above, the prosecution could not prove the charges framed under Section 395 of the Indian Penal Code. Though the seizure- list which bears the signatures of the appellant has been proved by PW 10 but the informant has clearly stated that he did not see the recovery of stolen articles ie. Thali and Lota from the house of the appellant and he saw these articles at the police station. In view of the above, prosecution could not prove even the recovery of stolen article beyond all reasonable doubts and the appellant also deserves benefit of doubt as far as charges framed against him under Section 412 of the Indian Penal Code is concerned. Accordingly, conviction and sentence by the Court below is set aside and the appellant is acquitted of the charge levelled against him and he discharged from the liability of the bail bond. In the result, this appeal is allowed.