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2004 DIGILAW 795 (PAT)

Chhotan Manjhi v. State Of Bihar

2004-08-05

CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. The appeal is against the judgment dated 28th April 1992 of the 3rd Additional Sessions Judge, Nawadah passed in ST. No. 320 of 1984/91 of 1987 whereby appellant Chhotan Manjhi has been convicted u/s. 395 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case, as propounded by the informant Om Prakash Das in the First Information Report lodged on 13th February 1981 at 11.20 a.m. at Pakribrawan is that in the night intervening between 12/13th February 1981, the informant after taking meal was sleeping in his house and in that night at about 3.00 a.m., he woke up on hearing sound of explosion of bomb and he also heard the cry "Loot Lalkai-Loot Lelkai from the house of his neighbour Birju Thakur. A bomb also exploded at his (informants) door. Then after breaking the door dacoits entered in the room also in which the electric bulb was lighting. Two of the dacoits put dagger on the informant and asked him to keep quiet. Then the dacoits looted away ornaments, clothes and other articles from the house. Dacoity was also committed in the neighbouring houses and thereafter, exploding 5-6 bombs, the dacoits fled away with the booty. The informant named the appellant as well as one Saudagar Manjhi and claimed to have identified them as the two dacoits who had put dagger on him during the occurrence. After lodging the fardbeyan, the investigation commenced and chargesheet was submitted against the appellant who was put on trial and who has been convicted and sentenced as above. 3. As many as seven witnesses were examined by the prosecution PW 1 Om Prakash Das is the informant himself. PW 2 Binda Das is the father of the informant. PW 3 Maya Devi is the Bhabhi of the informant. PW 5 Md. Nijamuddin is a formal witness who has identified the writings on the FIR. PW 6 Ashok Kumar Verma is also a formal witness who has proved the TIP chart (Ext-3) in respect of other accused Saudagar Manjhi who was put on T.I. Parade before Om Prakash Das (PW 1) and Maya Devi (PW 3) but none of them had identified him in the T.I. Parade. PW 7 is also a formal witness who has proved the fardbeyan marked Ext-1 and the FIR marked Ext-2. 4. PW 7 is also a formal witness who has proved the fardbeyan marked Ext-1 and the FIR marked Ext-2. 4. PW 1 (the informant) has claimed to identify the appellant during the occurrence. The witnesses, PWs, 2, 3 and 5 who are the inmates of the PO house have deposed about the occurrence of dacoity but none of them has named the appellant in their evidence nor they claimed to have identified him. PW 1 (the informant) is the only witness who has stated in his deposition, in detail, about the occurrence. He has deposed that during the occurrence, he had identified the appellant Chhotan Manjhi. But he does not mention the parentage or the address of the appellant. In his cross-examination he deposed that during the occurrence the appellant was tying galmochha on his face but despite their being galmochha on his face, his face was in a position to be identified. He also stated that during the occurrence he had seen the appellant for the first time. He further disposed that after the fleeing away of the dacoits he had not talked with his any family members about having identified the appellant. 5. During argument learned counsel for the appellant submitted that it is a case of mistaken identify and the appellant has been implicated solely on the basis of suspicion. The learned counsel argued that the informant himself admits that the appellant was tying galmochha on his face during the occurrence but despite galmochha on the face, the informant claims that he identified the appellant. Identification in such circumstances where the criminal has galmochha on his face cannot be said to be a positive and believable identification but it is always open to doubt due to the identification based on some guess and conjectures. The informant has claimed to identify the appellant but he has not mentioned in the FIR or even his evidence the parentage or the address of the appellant. He has further deposed that he had seen the appellant for the first time during the occurrence. Under these circumstances, the identification claimed by the informant when he does not know the parentage and address of the culprit whom he identified and that too under the circumstances when the culprit was wearing galmochha on his face cannot be an identification which can be safely relied upon. Under these circumstances, the identification claimed by the informant when he does not know the parentage and address of the culprit whom he identified and that too under the circumstances when the culprit was wearing galmochha on his face cannot be an identification which can be safely relied upon. Besides this, there are other circumstances also to discredit the informant in his claim of identification. The informant had claimed to identify one another dacoit Saudagar Manjhi also. That Saudagar Manjhi was put on T.I. Parade which was attended by the informant but he failed to identify Saudagar Manjhi in the TI Parade. 6. Thus, Saudagar Manjhi who was claimed by the informant to have been identified by him could not be identified by him in T.I. Parade. But it appears that appellant Chhotan Manjhi was not put on T.I. Parade. Under these circumstances, when the informant has claimed to have identified the appellant, it would have been a requisite step that the appellant was also put on T I Parade in order to decide the credibility of the claim of the informant that he had identified the appellant during the occurrence. But nothing like this was done. Anyway, whatever the material available on the record is before, me compels me to hold that the identification as claimed by the appellant cannot be safely believed to base the conviction of the appellant. In such view of the matters. I find and hold that the prosecution has failed to establish the complicity of the appellant in the alleged occurrence. Consequently, I hold the charge as not proved and accordingly, acquit the appellant of the charge. 7. In the result, this appeal is allowed and the order of conviction and sentence as passed by the trial Court is hereby set aside. The appellant is discharged from the liabilities of the bail bonds executed by him.