Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 424 (PAT)

Bhim Ram Alias Bhim Chamar v. State Of Bihar

2007-02-26

INDU PRABHA SINGH

body2007
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under sec. 395 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case, in brief, is that on 17.6.1980 at 7.30 P.M. in the evening when the informant after closing his shop was sitting outside his shop then a boy, son of a Kasera came and asked for Ghee and Sugar. He opened the shop and after weighing sugar it was given to him and was weighing the Ghee. In the meantime about 15 persons entered into his shop and one of the dacoit having big "Moustach" asked for the key and another miscreants put a gun upon him. It has been further alleged that the informant caught hold of gun and started assaulting the dacoits where upon his brother, Nagendra Sah and female inmates of his family started pelting stone, glass pieces and acid on the dacoits from the roof of the shop. The dacoits looted the articles from his shop and the informant after assaulting one of the dacoit went up to the roof of the shop and he also started pelting brick bats on the dacoit. It has been further alleged that the dacoits also attempted to climb the roof of the shop but later on when the doors were not opened they fled away. It has been further alleged that they took away Rs. 5,000.00 cash, a petromax, a romer watch, food articles, woollen Chadar and other articles. The dacoits left behind one country made pistol, one Chura and one pair of plastic shoe. The dacoits were 20 to 25 in number. However, the informant claimed that he and his brother can identify them on seeing them. Later, they came to know that Bahuddin and one Sah who came with gun after hearing Hulla were also got injured by the dacoits. On the basis of the aforesaid statement a formal F.I.R. was drawn up against unknown persons. The police started investigation and after completion of investigation the police submitted charge sheet. Thereafter the cognizance was taken and the case was committed to the court of session for trial. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case due to enmity. 4. The prosecution in support of its case has examined altogether four witnesses. Thereafter the cognizance was taken and the case was committed to the court of session for trial. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case due to enmity. 4. The prosecution in support of its case has examined altogether four witnesses. P.W.1, Yogendra Sah, is the informant, P.W.2, Nagendra Sah, brother of the informant has been tendered. P.W. 3, Kapileshwar Prasad is the Judicial Magistrate who has conducted the T.I.P. on 7.8.1980, P.W. 4, Krishna Prasad is an Advocate Clerk who has proved the case diary, injury report and F.I.R. 5. P.W.1, Jogendra Sah, the informant has fully supported the case of the prosecution as stated in his Fardbeyan. According to him on the date of occurrence he was sitting outside after closing his shop. At that time petromax was lighted and a boy came and asked for sugar and Ghee. He weighed sugar and thereafter he was weighing Ghee. He has further stated that at that very time 10-15 persons came and surrounded him. He identified the dacoits in the light of the petromaz. The dacoits started looting the articles from the shop. Thereafter he started assaulting one of the dacoits and he went on the roof of his shop and started pelting brick pieces on the dacoits. He has further stated that the dacoits attempted to climb the roof of the shop but when the door was not opened they came back and went away. He has further stated that they also took away Rs. 5,000.00 in cash, a petromex, a romer watch, food articles, woollen Chadar and other articles. He has further stated that while fleeing away the dacoits left behind one country made pistol, one Chura and one pair of plastic shoe. He has further stated that he and his brother identified on seeing them. According to him later on they came to know that Bhauddin and one Sah who came with gun after hearing Hulla were also injured by the dacoits. He has further stated that his statement was recorded by the police and he put his signature over it. He has further stated that he participated in T.I.P. and he identified the appellant while he was fieeing away from his shop. 6. P.W.3, Kapileshwar Prasad is a Judicial Magistrate who has conducted the T.I.P. of the appellant and other suspects. He has further stated that his statement was recorded by the police and he put his signature over it. He has further stated that he participated in T.I.P. and he identified the appellant while he was fieeing away from his shop. 6. P.W.3, Kapileshwar Prasad is a Judicial Magistrate who has conducted the T.I.P. of the appellant and other suspects. According to him on 7.8.1980 the informant (P.W. 1) has identified both the accused persons. He has further stated that the informant (P.W. 1) identified the appellant while he was firing from his pistol and he identified the co-accused Bishundeo while he was fleeing away. 7. P.W. 3, Krishna Prasad, is an Advocate clerk who has proved the case diary, injury report and the F.I.R. 8. Learned counsel for the appellant has submitted that the identification of the appellant is doubtful as the informant (P.W.1) has stated in course of the trial that he identified the appellant while he was fleeing away from his shop. But he has stated before the Judicial Magistrate at the time of T.I.P. that he identified the appellant while he was firing from his pistol. As such the informant (P.W.1) is not reliable and on his statement the appellant should not have been convicted. It has been further submitted that this is a case of single identification. 9. From the deposition of P.W.3, the Judicial Magistrate who has conducted the T.I.P. of the appellant and others it appears that the informant (P.W.1) identified the appellant, Bhim Ram while he was firing from his pistol whereas the informant (P.W.1) has stated before the court during the trial that he identified the appellant while he was on the gate of the shop and was fleeing away from there. As such his evidence is not reliable and the identification of the appellant becomes doubtful. That apart the appellant is not named in the F.I.R. and he was identified in the T.I.P. by the informant (P.W.1) only. As such there is single identification against the appellant and it would not be safe to convict the appellant on such weak evidence. The appellant deserves benefit of doubt. Accordingly, the appellant is acquitted giving him benefit of doubt. The conviction and sentence passed by the court below is set aside. He is discharged from the liability of his bail bond. 10. In the result, this appeal is allowed.