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2006 DIGILAW 390 (JHR)

Budhan Chaudhary v. State of Bihar

2006-04-18

D.P.SINGH

body2006
JUDGMENT D.P. Singh, J.- This appeal is directed against the judgment of conviction and sentence dated 8.9.2000 and 11.9.2000 passed in Sessions Trial No. 25 of 1998, .whereby and whereunder the learned 4th Additional Sessions Judge, Palamau at Daltonganj held the appellant guilty under Sections 395 IPC and convicted and sentenced him to undergo RI for seven years while acquitting other accused persons facing trial. 2. The brief facts arc that during the night between 11/12th May, 1997, when the informant Rahmat Ansari was sleeping inside his house at village Korwadih, District Garhwa, his door was knocked by some persons telling him that they were party men and when the informant refused to open the door, he received threatening that the door will be broken open and he will have to face the consequences. According to the informant when he opened the door he found criminals standing armed with guns and sten gun, out of. which he named Budhan Chaudhary armed with sten gun and two other persons Surendra Chaudhary and Islam Mian carrying guns. According to the informant the miscreants ransacked his house and household articles alongwith cash worth of Rs. 15,000/have been looted away. Thereafter the miscreants committed dacoity in the house of one Ishaque Ansari. 3. Garhwa police was informed, who _ reached at the P.O. in the morning at 3.30 AM and recorded the fard beyan of the informant, on the basis of which Garhwa P.S. Case No. 76/97 under Section 395 IPC was registered against three named accused persons and other unknown. The police investigated the case and finally submitted charge sheet. 4. The case was committed for trial and trial was conducted by the learned lower court acquitting two persons while convicting the appellant Bhudhan Chaudhary for the offence under Section 395 IPC and sentenced him to serve RI for seven years. 5. According to the learned counsel for the appellant, said Budhan Chaudhary has remained in custody from 14th March, 1997 till 6th February, 2001 till being admitted to bail by this Court. 6. Learned counsel for the appellant submits that the prosecution has failed to prove the case beyond all reasonable doubts that the appellant has taken part in the alleged dacoity. 6. Learned counsel for the appellant submits that the prosecution has failed to prove the case beyond all reasonable doubts that the appellant has taken part in the alleged dacoity. It is further submitted that all the witnesses examined on behalf of the prosecution have been declared hostile and learned lower court, relying upon the evidences of two witnesses, PWs 1 and 2, who were neither the informant nor family members of the informant to the extent that they have identified the appellant to be present at the time of occurrence. It is further submitted that these two witnesses being declared hostile by the prosecution the reliance placed upon them by the trial court on the point of identification is not proper and should not be relied upon. Learned counsel further submitted that the prosecution has failed to bring the charges against the appellant to have committed dacoity in the house of the informant and nothing has been recovered from his possession nor he was put on TIP and further that the I.O. has not been examined in this case. 7. The learned APP opposed this contention on the ground that the reliance placed by the learned trial court on the part of statement of PWs 1 and 2 is correct. The hostile witnesses can be relied upon on the part of their statement. 8. Perused the materiais on record and in view of the submissions made by the learned counsel for the appellant and the prosecution story, as narrated by the informant Rahmat Ansari, who has been declared hostile by the prosecution, as he has even disowned the earlier statement made before the police vide para 4 of his evidence, it appears that he did not identify the appellant standing in the court vide para 7. PW 5, the owner of the house, where dacoity was committed after the" house of the informant, has turned hostile, vide para 5, and disowned the identification of the appellant. PWs 6 and 7 have not claimed to identify the appellant. PW 1 has identified this appellant after his arrest by the police. He admitted in cross-examination by the prosecution, vide paras 7 and 21, that his statement was recorded by the police and he denied his earlier statement to have identified the named accused persons. PWs 6 and 7 have not claimed to identify the appellant. PW 1 has identified this appellant after his arrest by the police. He admitted in cross-examination by the prosecution, vide paras 7 and 21, that his statement was recorded by the police and he denied his earlier statement to have identified the named accused persons. PW 2 though named the appellant in cross-examination by the prosecution but he has not named the appellant in his statement, vide paras 5 and 10 of his statement. PW 3 did not name the appellant. The learned lower court has relied upon the statement of PWs 1 and 2 that they have known the appellant and they have also seen the appellant during the occurrence. 9. On perusal of the evidence, as discussed above, I find that the identification of the appellant Budhan Chaudhary is doubtful because the informant, who has named him in the fard beyan has failed to identify him before the court. It is also a fact on record that no TIP has been held in which the prosecution witnesses could have a chance to identify Budhan Chaudhary to have participated in the occurrence and in absence of I.O. it is very difficult to corroborate the part of evidence relied upon by the learned trial court. 10. In such view of the matter, I find that the learned trial court has committed an error of records while accepting the evidence of PWs 1 and 2 on the point of identification of the appellant Budhan Chaudhary on the spot. 11. In such view of the matter, I find that the present appeal has got merit and accordingly the conviction of appellant Budhan Chaudhary is found to be not maintainable and is liable to be set aside. 12. In the result this appeal is allowed. The appellant is on bail, he is discharged from the liability of bail bonds.