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2007 DIGILAW 877 (PAT)

Chandrika Bind v. State Of Bihar

2007-05-03

SHIVA KIRTI SINGH, SUBASH CHANDRA JHA

body2007
Judgment Shiva Kirti Singh, J. 1. The sole appellant has preferred this appeal from jail against his conviction u/s. 396 of the Indian Penal Code by judgment and order dated 8.10.2001 whereby he has been awarded rigorous imprisonment for life for the said offence. 2. It is not in dispute that a dacoity took place in the house of the informant Janak Lal Baitha P.W. 8 on 10.11.1998 at about 10.30 p.m. It is also not in dispute that 10-15 dacoits managed to loot away several articles. Ornaments and money from the house of the informant and they also assaulted some of the inmates and in particular a son of the informant. Pankaj Baitha received serious knife injury for which he was taken to Chapra Sadar Hospital for treatment but he later succumbed to the said injury giving rise to Daudpur P.S. case No. 134 dated 11.11.1998 initially u/s. 395 of the Indian Penal Code. On the next day Sec. 396 of the Indian Penal Code was added because the injured Pankaj Baitha died in the hospital and his autopsy was conducted by Dr. Arun Kumar P.W. 7 on 11.11.1998 at about 3.45 p.m. He found a stitched wound in front of right chest of the deceased which had caused injury to the lung and was the cause of death. 3. In the fardbeyan only the name of the appellant appeared as an accused. The allegation levelled against the appellant in the fardbeyan is exactly to the following effect. By the side of informants house. Chandrika Bind appellant disclosed to the miscreants that Janak Lal Baitha (informant) lives in a particular room and Mohan Baitha (brother of the informant P.W. 3) lives in another particular room. Apparently the informant had heard some voices and suspected that the voice was that of appellant his neighbour and therefore he named the appellant in the fardbeyan with the allegation that particular rooms belonging to the informant and to his brother were allegedly disclosed to the miscreants by the informant. 4. Apparently the informant had heard some voices and suspected that the voice was that of appellant his neighbour and therefore he named the appellant in the fardbeyan with the allegation that particular rooms belonging to the informant and to his brother were allegedly disclosed to the miscreants by the informant. 4. Since the Investigating Officer has not been examined in this case hence the details of investigation have not come on record through his deposition but it appears that on the basis of statements of witnesses charge-sheet was submitted only against the appellant leading to his trial by the Sessions Court when he pleaded not guilty to the charge u/s. 396 of the Indian Penal Code. 5. Altogether nine witnesses were examined on behalf of prosecution out of whom P.W. 1, Kanti Devi P.W. 2, Mala Devi P.W. 3. Mohan Baitha, P.W. 4. Sarita Devi and P.W. 6, Sabita Devi who are all inmates of the house have not stated anything against the appellant and have claimed that they could not identify any of the dacoits. The only remaining material witnesses are Asha Devi (P.W. 5) who is wife of the informant and P.W. 8 Janak Lal Baitha the informant himself. As already noticed P.W. 7 is the doctor and P.W. 9 Ram Nath Bharti is a formal witness who has proved the formal FIR as Exhibit-3. 6. The appellant has been convicted only on the claim of P.W. 5 and P.W. 8 that they identified the appellant as one of the miscreants, in course of dacoity in their house. The issue is whether on the basis of statements of those witnesses it is safe to convict the appellant of the charge u/s. 396 of the Indian Penal Code or he deserves to be given benefit of doubt. 7. On a careful perusal of evidence of P.W. 5 Asha Devi it is noticed that after the occurrence the appellant allegedly locked this witness in a room. No doubt this witness could not be cross-examined because no lawyer appeared in spite of repeated calls but it remains to be seen whether the claim of this witness has been corroborated by P.W. 8 the informant and is fit to be accepted or not. No doubt this witness could not be cross-examined because no lawyer appeared in spite of repeated calls but it remains to be seen whether the claim of this witness has been corroborated by P.W. 8 the informant and is fit to be accepted or not. A careful perusal of deposition of P.W. 8 the informant discloses that he claims to have identified the appellant as one of the dacoits who was in the verandah of his house. He has not given any source of light in the verandah when in cross-examination he has admitted that the occurrence had taken place in a dark nights he has also admitted that the appellant is his neighbour and members of this family can identify him. He has specifically reiterated in cross-examination that this appellant remained outside in the verandah. He has also replied that this appellant had taken no precaution to conceal his identification. He has also stated that he had not seen any weapon in the hands of the appellant and after the occurrence he did not go to appellants house a neighbour to verify that he was in his house. He has also admitted that in the village he did not disclose to anyone that the appellant had participated in the dacoity. He has also admitted that appellant was arrested from his house and no incriminating article was recovered from his possession. 8. After giving our anxious consideration to the aforesaid claims of P.W. 5 and P.W. 8 in respect of identification of the appellant, we find that it is not safe to convict the appellant on the basis of facts and circumstances appearing from the deposition of P.W. 5 and P.W. 8. Whereas P.W. 5 claims that the appellant was inside the house participating in the assault and she identified him in the light of lantern kept in the house. P.W. 8 the informant has insisted that the appellant remained outside where there was apparently no source of light. About source of light no question could be put to the Investigating Officer because he was not examined by the prosecution and there is no good reason for his non-examination. P.W. 8 the informant has insisted that the appellant remained outside where there was apparently no source of light. About source of light no question could be put to the Investigating Officer because he was not examined by the prosecution and there is no good reason for his non-examination. In absence of evidence of the Investigating Officer and any objective finding made by him regarding means of identification in the outside verandah of informants house it is not safe to rely upon the claim of the P.W. 8 that he identified the appellant while he remained outside in the verandah. The claim of identification by the informant is rendered doubtful even in the light of his earliest version in the fardbeyan in which he apparently claimed only to have heard the voice of the appellant and did not claim that he had identified the appellant doing any particular act in any source of light. It does not appear safe to convict the appellant only on the basis of claim of identification made by P.W. 5, the wife of the informant when her claim that the appellant came inside the house and participated in assault has not been corroborated and supported by the informant himself and other inmates. PWs. 1, 2, 3, 4 and 6 have also not identified the appellant. Otherwise also it is obviously unnatural that an immediate neighbour would take the risk of entering into the house of another neighbour without taking precaution to conceal his identification and thereafter remain in the village to be arrested by the police. Although the Investigating Officer was not examined by the prosecution but the informant himself has stated that nothing was recovered from the house of the appellant. 9. In view of aforesaid discussions we are unable to agree with the finding of the trial Court holding the appellant guilty of the offence u/s. 396 of the Indian Penal Code. In view of the discussions made above, particularly in respect of the evidence of PWs. 5 and 8, we are inclined to grant benefit of doubt to the appellant and he is accordingly acquitted of the charge u/s. 396 of the Indian Penal Code. It appears that he is in jail custody. He should be released forthwith if not required in connection with any other case. 5 and 8, we are inclined to grant benefit of doubt to the appellant and he is accordingly acquitted of the charge u/s. 396 of the Indian Penal Code. It appears that he is in jail custody. He should be released forthwith if not required in connection with any other case. We would like to express our satisfaction and appreciation in respect of submissions made by learned counsel for the appellant who has appeared as amicus curiae.