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2005 DIGILAW 107 (PAT)

Badri Mukhiya v. State of Bihar

2005-02-02

body2005
ORDER S.M.M.ALAM. J. :- This criminal appeal has been preferred against the judgment dated 23.12.2002 and order dated 24.12.2002 passed by the learned Additional Sessions Judge, Supaul in Sessions Case No. 116/99(S) whereby he convicted the appellant Badri Mukhiya under Section 395 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years. 2. The prosecution case in short, is that in the night of 15.8.1998, the informant Kuniya Devi, wife of Bauni Sharma of village Pipra Khurd, P.S. Bhaptiahi, District Supaul, was sleeping inside the room of her house along with her three daughters. He son Jageshwar Sharma was sleeping in the adjacent room of her house with his younger brother. At about 1A.M. five dacoits entered into the courtyard of her house and three of them asked Jageshwar Sharma to open the door of his room. They used abusive and threatening language whereupon Jageshwar Sharma opened the room and then all the three dacoits entered into the room of Jageshwar Sharma. All the three dacoits tied the hands of Jageshwar Sharma, assaulted him and started looting household articles. On hearing cries of Jageshwar Sharma, the informant got up and opened the door of the room and then two of the dacoits entered Into her room. They assaulted the informant Kuniya Devi and her son and looted household articles. During the commission of the dacoity, the informant and her daughter, Santola Devi identified one of the dacoits, namely, Badri Mukhiya, son of Jhabar Mukhiya, resident of village Murli. Further case is that the informant and her daughter fell upon the feet of Badri Mukhiya and requested not to assault them. However, Badri Mukhiya abused and threatened to kill her. Further case is that the dacoits looted 13 pieces of Sarees, silver Sikri one blanket and one Lota. After running away of the dacoits, the informant went into the room of he; son and found that his hands were tied. She also informed her son that she has identified Badri Mukhiya amongst the dacoits. It is further said that on Hulla the villagers arrived at the place of occurrence to whom the informant narrated the entire incident and disclosed the name of the appellant Badri Mukhiya as one of the dacoits. 3. In the same night at about 5 A.M. the police arrived at the place of occurrence and the Officer Incharge. It is further said that on Hulla the villagers arrived at the place of occurrence to whom the informant narrated the entire incident and disclosed the name of the appellant Badri Mukhiya as one of the dacoits. 3. In the same night at about 5 A.M. the police arrived at the place of occurrence and the Officer Incharge. Sub-Inspector of Police, Arun Kumar Arya of Bhaptiahi Police Station recorder the fardbeyan of the informant and or that basis registered Bhaptiahi P.S. Case No. 30/98 Thereafter the Sub-Inspector of Police investigated the case and submitted chargesheet against the appellant Badri Mukhiya on the basis of which cognizance was taken and that the case was committed to the Court of Session. 4. During the trial altogether eight witnesses were examined on behalf of the prosecution. None was examined on behalf of the Defence. On the basis of the evidence of the prosecution witnesses and the materials on record, the learned Additional Sessions Judge delivered the judgment and found the appellant guilty under Section 395 of the Indian Penal Code and sentenced him, to undergo rigorous imprisonment for seven years. 5. Being aggrieved and dissatisfied with the said judgment and order, the appellant Badri Mukhiya has preferred this appeal. 6. The main contention of the learned Advocate for the appellant is that P.W.1 Kuniya Devi, who is the sole eye-witness of the occurrence, is not a reliable witness. According to his submission, her testimony on the point of identification cannot be relied upon. His further submission is that so far as P.W.2 Shiv Narayan Sharma, P.W.3 Dallu Sharma and P.W.4 Ram Roop Sharma are concerned, they are not eye-witnesses of the occurrence rather they are hear-say witnesses and as regards P.Ws.6 and 7, they have not supported this fact that the appellant was identified as one of the dacoits although both the witnesses are said to be eye-witnesses of the occurrence. His further argument is that P.W.1 Kuniya Devi becomes the solitary eye-witnesses of the occurrence of dacoity and in view of her statement at paragraph 3 of the deposition that she did know the appellant, Badri Mukhiya from before the date of occurrence, the identification of the appellant by the informant becomes doubtful. On this ground, the learned Advocate for the appellant has sought acquittal of the appellant. 7. On this ground, the learned Advocate for the appellant has sought acquittal of the appellant. 7. The contention of the learned Advocate appearing on behalf of the State is that P.W.1, who is the informant of this' case, is the eye-witness of the occurrence and according to the fardbeyan of this case, she had disclosed the name of the appellant at the very early stage and this fact finds corroboration from the evidence of P.Ws.2, 3 and 4. He has also argued that although it is true that the son -and daughter of the informant (P.Ws.6 and 7) have become hostile and they have not supported this fact that the appellant was identified by their mother at the time of occurrence of dacoity but this is not fatal to the prosecution case and so he has pleaded to confirm the judgment and order of the learned lower court. 8. I have gone through the evidence of P.W.1 Kuniya Devi and I am of the view that if her evidence is read with the evidence of P.Ws.6 and 7, who are her son and daughter, respectively, then her entire evidence becomes very doubtful. Moreover, P.Ws.6 and 7 both have categorically stated that on the night of the occurrence, the appellant was not identified as one of the dacoits. Both the witnesses have further stated that some villagers had put the name of the appellant Badri Mukhiya in the mouth of her mother. Thus, the evidence of P.Ws.6 and 7 establishes this fact that the identification of the appellant by P.W.1 is very doubtful. 9. From perusal of paragraph 2 of the deposition of P.W. 1, it appears that on the very night of the occurrence just after occurrence of the dacoity she went to the Police Station concerned and at about 1A.M., she gave her fardbeyan before the Officer Incharge of the said Police Station as she has stated in the said paragraph that at about 1A.M. just after the occurrence she went to the Police Station where she gave her fardbeyan which was recorded by the police. She has further stat d that at that time Shiv Narayan Sharma and Dallu Sharma had also accompanied her and they had also given L.T.1.on the said fardbeyan. She has further stat d that at that time Shiv Narayan Sharma and Dallu Sharma had also accompanied her and they had also given L.T.1.on the said fardbeyan. This goes to establish that prior to lodging of the fardbeyan of this case, one more fardbeyan of the informant was recorded by the police but that very fardbeyan is not on record. This aspect of the case also establishes that the prosecution case regarding the identification of the appellant as one of the dacoits is doubtful and, therefore, I am of the view that the solitary evidence of P.W.1 on the point of identification of the appellant not corroborated by her own son and daughter cannot be relied. 10. Considering the facts and circumstances of the case and after scrutiny of evidence, I have come to the conclusion that it is a fit case in which benefit of doubt should be given to the appellant. 11. In the result, this appeal is hereby allowed and conviction and sentence passed against the appellant is set aside and the appellant is acquitted of the charge under Section 395 of the Indian Penal Code. He is discharged from the liability of bail bonds, if on bail.