Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 1160 (JHR)

Shahebjan Murmu v. State Of Bihar (Now Jharkhand)

2003-09-16

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal at the instance of the appellant above named is directed against the impugned judgment and order dated 28.4.1994 and 29.4.1994 respectively passed in Sessions case No. 14 of 1990 by Shri Dinesh Narain Pathak, 6th Additional Sessions Judge, Dumka whereby and whereunder the appellant was found guilty for the offence punishable under Section 412 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for ten years. However, this appellant along with co-accused Jatan Hembram were acquitted for the offence under Sections 394 and 397 of the Indian Penal Code. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of PW 1 Shashi Giri, the driver of truck bearing Registration No. BPR-9331, recorded by S.I. Jagarnath Mishra of Gopikander PS on 21.1.1988 at 21.00 hours on the bridge of Dumka-Amarapara Road in front of village-Gamaharia regarding the occurrence which is said to have taken place thereon that very day at 12.45 hours. 3. According to the prosecution case, the informant was proceeding for Barbad-da, Jharia from Maheshpur Raj in the District of Sahebganj with the said truck loaded with 121 bags of rice and he was passing through Dumka-Amarapara Road and when he reached near the bridge in front of village-Gamaharia, he found the road blocked by putting boulders and he stopped the said truck there and dacoits came there armed with bhala, lathi, tangi and arrow and they have committed dacoity of Rs. 300/- of the informant besides his driving license and Eveready two-cell torch as well as HMT wrist watch of Parmeshwar Jha, the Khalashi of the said tuck. It is also alleged that the dacoits have also committed dacoity in the other tuck bearing Registration No. BRL-8230 and they have taken away about Rs. 1200/- from the said truck. The prosecution case is further that the dacoits escaped away from there finding a motorcycle and a Jeep coming towards the place of occurrence. 4. In course of investigation, the appellant was apprehended and he produced government currency notes worth Rs. 140/- before the I.O. as per Ext. 5 and he was booked in this case. 5. The prosecution case is further that the dacoits escaped away from there finding a motorcycle and a Jeep coming towards the place of occurrence. 4. In course of investigation, the appellant was apprehended and he produced government currency notes worth Rs. 140/- before the I.O. as per Ext. 5 and he was booked in this case. 5. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case on mere suspicion at the instance of Gopikander police station. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned court below has committed a manifest error in coming to the finding of the guilt of the appellant and the impugned judgment is perverse as there is no iota of legal evidence at all on the record even to connect or implicate this appellant as the participant in the dacoity. It has also been submitted that this appellant was put on test identification parade and he was not identified therein by any of the prosecution witnesses. It has also been contended that no incriminating articles have been recovered from his possession and the confessional statement of this appellant alleged to have been recovered by the police has no relevancy at all in this case. It has also been submitted that Government currency notes worth Rs. 140/- produced by the appellant has no connection whatsoever with the occurrence in question and there is dearth of evidence to establish the fact that the said currency notes has any co-relation with the commission of this dacoity so as to find the appellant guilty for the offence under Section 412 of the Indian Penal Code and viewed thus, the impugned judgment is unsustainable. 7. The learned APP has very fairly submitted that there is no evidence at all on the record to connect or implicate the appellant in this occurrence. 8. The prosecution has in all, examined five witnesses to substantiate its case. PW 1 Shashi Girl is the informant of this case and driver of the truck bearing registration, No. BPR-9331. PW 2 Hopna Hansda is a witness of seizure list (Ext. 2) and his signature thereon is Ext. 8. The prosecution has in all, examined five witnesses to substantiate its case. PW 1 Shashi Girl is the informant of this case and driver of the truck bearing registration, No. BPR-9331. PW 2 Hopna Hansda is a witness of seizure list (Ext. 2) and his signature thereon is Ext. 1/1 and this seizure list is in respect of the recovery of some of the looted articles from the house of co- accused-Josef Murmu. Co-accused Josef Murmu is not on trial in this case. Therefore, the evidence of PW 2 has no relevancy at all in this case. PW 3, Dashrath Kurnar Bhagat figures as a witness on Ext. 5 which is the production- cum-seizure list of the Government currency notes worth Rs. 140/- produced by this appellant to the I.O. and the signature of this witness thereon is Ext. 1/2. PW 5 is a formal witness, who has proved the fardbeyan, formal FIR and the seizure list marked Exts. 3, 4 and 5 respectively. PW 4 Jagarnath Ram has turned hostile and he does not at all support the prosecution case. The I.O. of this case has not taken oath in this case. 9. The learned court below, being swayed by the production of the Government currency notes worth Rs. 140/- by this appellant, has come to the finding of the guilt of the appellant. 10. It is pertinent to mention here at the very outset that this case has been lodged against unknown dacoits. There is specific averment in the fardbeyan of PW 1, the informant that all the dacoits had concealed their face by cloth. PW 1 in his evidence on oath has also not identified this appellant in the dock as a participant in the occurrence. This appellant has been put on test identification parade but none of the prosecution witnesses, who had participated in the test identification parade, has identified him. It also appears that no incriminating article has been recovered from his house. According to the prosecution case, the appellant was apprehended by the I.O. and he delivered Government currency notes worth Rs. 140/- to the I.O. and he was remanded to custody having complicity in the occurrence in question at the instance of the I.O. The I.O. has not taken oath in this case even to corroborate the prosecution case regarding his apprehension and production of currency notes of Rs. 140/-. 140/- to the I.O. and he was remanded to custody having complicity in the occurrence in question at the instance of the I.O. The I.O. has not taken oath in this case even to corroborate the prosecution case regarding his apprehension and production of currency notes of Rs. 140/-. There is also no iota of legal evidence at all on the record to connect the aforesaid Government currency notes having co-relation with the subject matter of the dacoity to implicate the appellant with the dacoity in question. Therefore, there is no iota of legal evidence at all on the record even to connect or implicate the appellant with the occurrence in question. The reasons assigned by the learned court below regarding the finding of the guilt of the appellant in view of the evidence on the record is not based on any legal evidence, rather, the finding of the learned court below is based on surmises and conjectures and the same is figment of his imagination and I have no hesitation to say that the finding of the learned court below is perverse. I see substance in the contention of the learned counsel for the appellant. The impugned judgment suffers with manifest illegality and the learned court below has erred gravely incoming to the finding of the guilt of the appellant. Viewed thus, the impugned judgment is unsustainable. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is set aside. The appellant is found not guilty and he is, accordingly, ac quitted and discharged from the liability of his bail bond.