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2008 DIGILAW 169 (PAT)

Sheo Mistri v. State Of Bihar

2008-01-24

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. This appeal has been filed by the sole appellant Sheo Mistri against the judgment of conviction and order of sentence dated 22.3.1993 and 24.3.1993 respectively passed by the 5th Additional Sessions Judge, Gaya in S.Tr. No. 6 of 1991/135 of 1991 whereby the appellant was convicted under sec. 395 of the Indian Penal Code and was sentenced to undergo R.I. for 8 years. Besides the appellant one Ganauri Pawan was also found guilty but his appeal is not here. 2. A dacoity was committed allegedly in the night of 18.9.1988 in the house of the informant PW 10. According to the allegation the dacoits entered into the house of the informant PW 10 by scaling over the roof. Main door of the house was opened and thereafter, ten dacoits flashing torch light intruded into the house. Informants wife woke up and tried to raise alarm but she was forced to keep mum. The dacoits entered into the room, opened the boxes and removed the valuable articles. One of the dacoits namely, the appellant gavn fasuli blow to one Saroj Kumar, the niece of the informant. On account of assault she received injuries. Valuables were looted by the dacoits and at the time of leaving the house they fired. The appellant was caught by the informant on the spot with the help of the villagers and was produced before the Chakand Police camp where the fard beyan was recorded on 19.3.1988 at 3.30 AM on the basis of his fard beyan (Ext-1/B) of the informant a formal FIR bearing Belaganj P.S. Case No. 106 of 1988 was registered under sec. 395 of the Indian Penal Code against the appellant. In course of investigation complicity of another accused also transpired who was put on T.I.P. and identified. After investigation charge sheet was submitted. Cognizance was taken. As the case was triable by the Court of Sessions so it was committed to the court of Sessions. The charges were explained to the accused who pleaded innocence and claimed to be tried. 3. The defence of the appellant was that he was on inimical terms with the prosecution party. He was apprehended from his house and implicated due to previous enmity. 4. The charges were explained to the accused who pleaded innocence and claimed to be tried. 3. The defence of the appellant was that he was on inimical terms with the prosecution party. He was apprehended from his house and implicated due to previous enmity. 4. In order to prove the case the prosecution has examined 12 witnesses, namely, PW 1 Saroj Devi, PW 2 Vijay Yadav, PW 3 Sarswati Devi, PW 4 Kishori Yadav, PW 5 Murti Devi wife of the informant, PW 6 Bhuneshwar Yadav, PW 7 Badamiya Devi, PVJ 8 Tijiya, PW 9 Phulpati Devi, PW 10 is Inderdeo Yadv, PW 11 is Arun Kumar Sharma the Judicial Magistrate who has conducted T.I.P. of Ganauri Paswan and PW 12 Saman Kujur the I. 0. PWs 4, 8 and 9 were tendered in cross examination and PW 11 and 12 were the formal witness. 5. PW 10 is the informant. He in his evidence has stated that in the night of 18/199.1988 while he was sleeping in his mill then Devlal Pahalwan (not examined) came on mill and informed that the dacoity was being committed. The informant heard sound of explosion of bomb and sound of firing by pistol. The informant rushed to his house and saw the dacoits going out from the house of Bhuneshwar Yadav (PW 6) who is his brother. At that time the dacoits were armed with pistol, bomb and torch. One dacoit carrying TV was caught from behind while the dacoits were seen leaving the house of Bhuneshwar Yadav. That caught dacoit was the appellant. Later on when the informant went to his house then knew that the dacoits have taken away a number of articles from his house also. Sheo Shankar Mistri was brought to Chakand O.P. where the fard beyan of PW 11 was recorded. The fard beyan (Ext-1/B) was signed by the informant. Informants nephew PW 2 Vijay Yadav participated in the TIP where he identified Ganauri Paswan. 6. PW 1 has supported the factum of dacoity in the night. According to her, the dacoits were having torch, rifle, garasa and daggers. They were flashing torch light. She has stated that she has identified the appellant. Thereafter she was assaulted by the appellant as a result she become unconscious. According to her the dacoits had taken away a number of articles. She was treated by the doctor. According to her, the dacoits were having torch, rifle, garasa and daggers. They were flashing torch light. She has stated that she has identified the appellant. Thereafter she was assaulted by the appellant as a result she become unconscious. According to her the dacoits had taken away a number of articles. She was treated by the doctor. According to her the appellant is her neighbour and she has stated that she has visiting terms with the appellants house. 7. PW 2 Vijay Yadav has supported the factum of dacoity. Similar evidence has come on behalf of the PW 6 and 7. 8. Though the factum of dacoity was supported by a number of witnesses but with regard to the identification of the appellant it has been submitted by the learned counsel for the appellant that several contradictions have appeared in the prosecution evidence upon which it can be safely said that the appellant was falsely implicated. It has been pointed out that the PW 5 wife of the informant in her evidence she stated that the dacoits had entered inside the room and in pera 8 she has specifically stated that while the appellant was breaking the boxes then he was identified and at that very time her husband caught him inside her room. At that time Kishori and Gaya were also there. Her definite reply in cross examination was that Shiv Mistri was caught inside her room. At that time he was having gun. 9. PW 6 has stated in para 2 that Shiv Mistrti was caught in his house. At that time he was breaking the wire of TV. PW 10 had given another version that when the appellant was leaving the house of PW 6 with TV then he was apprehended by the informant. Therefore, tnree separate versions have come regarding apprehension of the appellant by the informant. And according to the evidences of the witnesses also the house of PW 6 and 10 are situated at some distance and number of house are there between the houses of PW 6 and 10. 10. Therefore, tnree separate versions have come regarding apprehension of the appellant by the informant. And according to the evidences of the witnesses also the house of PW 6 and 10 are situated at some distance and number of house are there between the houses of PW 6 and 10. 10. It has been argued on behalf of the appellant that it could not be proved by the prosecution as to from where the appellant was caught, as to whether from the house of the PW 6, or at the time of breaking wire of the TV or from leaving the house with TV or, from the room of the PW 5. All the statements have come but all are contradictory to each other. It has also been argued that the apprehension of the appellant has become doubtful because according to one witness the appellant was having gun when he was caught but that gun was never produced before the I. O. Not even one article which was suspected to be stolen one was produced before the I. O. as he has stated in para 4 of his evidence. I. O. has further stated that when the appellant was brought betore him then he was having a number of injures for which he was treated. When he went to the house then he found nothing from which any inference could be draw that any occurrence of firing or explosion of bomb has occurred. 11. Another argument on behalf on behalf of the appellant is that the definite case of the prosecution is that Deolal Pahalwan called the informant at the place of occurrence "but Deolal Pahalwan has not been examined. All the witnesses who have been examined on behalf of the prosecution are the family members of the informant. None examination of the independent witnesses creates doubt. 12. I have considered the entire submissions. There is vital contradictions in the prosecution case as to from where the appellant Sheo Mistri was caught. On this a number of witnesses have come and the different places from where the appellant is said to have been caught is situated at some distance. These contradictions could not be explained by the prosecution as to why such contradictory evidences has come. On this a number of witnesses have come and the different places from where the appellant is said to have been caught is situated at some distance. These contradictions could not be explained by the prosecution as to why such contradictory evidences has come. Though the case of the defence is that the informant has tried to outrage the modesty of the appellants sister for which the police was informed but there is nothing on the record so it is difficult to believe that Another defence version was that a proceeding under sec. 107 Cr.P.c. is pending between the appellant as well as the informant and his family but this is also not on the record and it appears that only these were the suggestions. 13. However, taking the evidences in its entirety it is difficult to believe that as to how a person can been caught at three different places by one person. These statements of the witnesses have crated some doubt on the prosecution version so far as the apprehension of the appellant is concerned. The prosecution has not been able to prove its case beyond all reasonable doubt. The doubt has remained un-cleared. Once a doubt is created then the benefit is to be given to the accused . and accordingly, I hold that the benefit has not been given to the accused by the court below. The appellant is entitled to get benefit of doubt. Accordingly, the impugned judgment of conviction and sentence is set aside. In the result this appeal is allowed and the appellant is discharged from the liabilities of bail bonds.