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2005 DIGILAW 860 (PAT)

Sitaram Dhodi v. State Of Bihar

2005-09-21

M.L.VISA

body2005
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 3.4.1992 and 8.4.1992 passed by 1st Additional Session Judge, Madhubani in S. Tr. No. 54/85 109/85 convicting and sentencing the appellant to Undergo R1 for five years. 2. The case of prosecution in short is that on 15.5.82 informant Khattar Ram alongwith his father Kari Ram and brother Nasib Lal Ram PW 1 was sleeping at his Dalan and his another brother Lakhan Ram PW 4 was sleeping in another room. At about 11.45 PM when informant was awaken by his father he saw 8-10 dacoits armed with lathi and torch in his house and they tied him and his brother Nasib Lal Ram with Lungi and napkin and five dacoits among them kept watch over them and rest dacoits entered the family ward of his house. Informant and his brother, Nasib Lal Ram anyhow untied their hands and tried to assault the dacoits with Lathis and in that process informant identified the appellant in the light of torch held by dacoits. When informant and his brother started assaulting the dacoits the dacoits started running away towards north. In the meantime the dacoits who had entered the female ward of the house of informant also came there and they snatched Lathis from the hand of informant and the dacoits assaulted the informant and his brother Nasib Lal Ram with Fatha. Thereafter the dacoits fled away. On hullah Ghowkidar and villagers assembled there and informant found that utensils, clothes etc. all worth Rs. 510.00 were taken away by dacoits from the female ward of his house. It is further alleged that dacoits had assaulted father and nephew of informant. After occurrence informant and his brothers were taken to hospital where on next day, i.e., 16.5.82 at 8 AM the fard-beyan of informant was recorded and on the basis of fard-beyan a case under Sec. 395 of Indian Penal Code, 1860 against appellant and some unknown persons was registered and police after investigation submitted charge sheet u/s. 395 of the Indian Penal Code, 1860 against the appellant. Cognizance of the case was taken and case was committed to the Court of Session and after trial appellant was found guilty and convicted and sentenced as indicated above. 3. Being aggrieved by the order of Court below the appellant has preferred this appeal. 4. Cognizance of the case was taken and case was committed to the Court of Session and after trial appellant was found guilty and convicted and sentenced as indicated above. 3. Being aggrieved by the order of Court below the appellant has preferred this appeal. 4. During trial five witnesses were examined on behalf of the prosecution. One witness was also examined on behalf of the defendant. Khattar Ram, PW 5 is informant. Nasib Lal Ram PW 1, Sachidanand Ram, PW 2, Ram Nath Mandal, PW 3 and Lakhan Ram, PW 4 are other witnesses. 5. Nasib Lal Ram, PW 1, who is brother of informant, has stated that dacoity was committed in his house when he and informant were sleeping in their house and on hullah when he awoke he saw dacoits and thereafter dacoits gave Lathi blows to him and tied him and informant but they anyhow rescued themselves from the ties and there was scuffle between him and informant on one side and dacoits on the other side and dacoits took away utensils, clothes etc. worth Rs. 510.00 from his house. In para 2 of his deposition he clearly stated that he did not identify any dacoit. His brother had told him the name of appellant among the dacoits. Para 4 of his deposition shows that on pointing out by APP he identified the appellant in dock. Sachindanand Ram, PW 2 in para 3 of his deposition has stated that he did not identify any dacoit and informant told him the name of one dacoit who belonged to village Amchiri but he does not remember his name. Para 5 of his deposition shows that first he failed to identify the appellant in dock but immediately he changed his statement and stated that the man who was named by informant was the appellant standing in the dock. 6. Ram Nath Mandal, PW 3 had been declared hostile by prosecution because he stated that neither he saw dacoits nor informant told him anything. 7. Lakhan Ram, PW 4, another brother of informant, has stated that dacoity was committed in his house and dacoits took away clothes, utensils from his house but he did not identify any dacoit and informant told him the name of appellant as one of the dacoits. He has identified the appellant in dock. 8. 7. Lakhan Ram, PW 4, another brother of informant, has stated that dacoity was committed in his house and dacoits took away clothes, utensils from his house but he did not identify any dacoit and informant told him the name of appellant as one of the dacoits. He has identified the appellant in dock. 8. Khattar Ram, PW 5, is informant who in his evidence stated that dacoity was committed in house and dacoits took away clothes, utensils etc. worth Rs. 510.00 from his house. He has identified the appellant in dock. In para 3 of his deposition he stated that his statement was recorded by police at hospital where after the occurrence he had gone for treatment. In para 5 of his deposition he has stated that in the night of occurrence he was not having any torch with him. In his entire evidence he has not disclosed the source of identification of appellant at the time of dacoity. 9. In para 12 of judgment I find that the Court below has observed that PW 5 in his statement made before Court has specifically stated that he identified the appellant in the flash of torch of the dacoits. I find no such statement in the entire evidence of PW 5 who is informant of this case. I, therefore find that the aforesaid observation in the judgment of Court below is an error of record. Besides this, I further find that the informant in para 8 of his evidence has stated that he knows 2-3 persons of village Anchiri and he has named them as appellant, Chulhai and Nirshu. He has further stated that he knows these two persons since last 2-4 years. Learned counsel of the appellant has submitted that informant was examined on 28.3.1989 and on that by his evidence that he knows the appellant, Chulhai and Nirshu since last 2-4 years completely demolishes his case that on the day of occurrence which according to informant took place in the night of 15.5.1982 he identified the appellant. The evidence of PW 1 that he did not identify any dacoit but identified the appellant in dock shows that appellant was known to him but still at the time of dacoity he failed to identify him. The evidence of PW 1 that he did not identify any dacoit but identified the appellant in dock shows that appellant was known to him but still at the time of dacoity he failed to identify him. Similarly , PW 2 has stated that he did not identify any dacoit but informant had told him the name of one person of village Amchiri among the dacoits but he does not remember that name and thereafter first denying to identify the appellant in Court and subsequently saying that the appellant was same man who was named by his uncle who is informant does not make out any sense. Since he was not remembering the name of appellant how could he identify the appellant standing in the dock saying that appellant was the same man who was named by informant ? Evidence of PW 4 as stated above is also that he did not identify any dacoit but informant had told him the name of appellant. 10. Learned counsel of the appellant further submits that neither IO has been examined nor FIR has been proved. He further submits that Raj Kumar Das, DW 1, has proved the affidavits of PWs 1, 2 and 4 where they have stated that informant had not told them the name of appellants. These affidavits are marked as Exhibits A to A/2. If no weightage to these affidavits is given even then I find that the witnesses examined on behalf of prosecution, including the informant, have not been able to prove the charge against appellant beyond all reasonable doubts, 11. I, therefore, find that there is no evidence on record to prove the guilt of appellant u/s. 395 of the Indian Penal Code, 1860 . In the result the appeal is allowed and judgment and order of Court below are hereby set aside. 12. Since the appellant is on bail, he is discharged from the liability of bail bonds.