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2008 DIGILAW 371 (PAT)

Horil Nonia v. State of Bihar

2008-02-20

body2008
S.K. SHARMA, J.:- The sole appellant has preferred this appeal against the judgment dated 29.7.1993 passed by 1st Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 217 of 1986 whereby he was found guilty under Section 395/412 of the Indian Penal Code but was sentenced only under Section 395 of the Indian Penal Code to undergo rigorous imprisonment for ten years. Other accused persons namely, Lakhpati Nonia, Kedar Nonia, Siya Nonia and Mahendra Gope were acquitted by the said judgment. 2. The informant Moti Ram gave his fardbeyan on 18.3.1980 at about 9.30 P.M. alleging therein that while he was closing his shop at about preceding 7.30 P.M., 10 to 12 persons came and one of the accused pointed out his pistol on his back and another gave a slap and he was pushed back to his shop and asked for cash and 5 to 6 dacoits entered in the shop and looted a number of articles. In the meanwhile, the police party came and one of the accused who is appellant before this court was caught with clothes which were identified to be the clothes of the informant; The said accused disclosed that Siban Dusadh, Meghan Dusadh, Krishna Thakur, Umesh Dusadh, all resident of village Pichasa and Barka Siya Nonia, Kedar Nonia, Lakhpati Nonia and Mahendra Nonia, all these resident of village Milki were his accomplices. The details of the looted articles have been given in the fardbeyan. The fardbeyan of the informant resulted in Bihar (Rahui) P.S. Case No. 52 of 1980 under Sections 395 and 412 of the Indian Penal Code. On the basis of said fardbeyan, a formal F.I.R. was drawn. The matter was investigated into and after completion of investigation, charge-sheet was submitted against four persons including the appellant and some dacoits were shown absconders. Later on one accused Lakhpati Nonia surrendered. After cognizance, the case was committed to the court of sessions. The trial proceeded. Charges under Section 395 of the Indian Penal Code was framed against this appellant and other four accused. Charge under Section 412 of the Indian Penal Code was also framed against the appellant. Charges were explained to the accused persons who pleaded innocence and preferred to face the trial. 3. The defence of all the accused persons was of false implication and also that no dacoity at all was committed in the shop of the informant. Charge under Section 412 of the Indian Penal Code was also framed against the appellant. Charges were explained to the accused persons who pleaded innocence and preferred to face the trial. 3. The defence of all the accused persons was of false implication and also that no dacoity at all was committed in the shop of the informant. Further defence of the appellant was that he was caught on the road and at that time, he was empty handed and was going to work. 4 In order to prove its case, the prosecution has examined altogether 6 witnesses. They are: P.W. 1 Nowalki Paswan, P.W. 2 Hari Gope, P.W. 3 Girja Singh, P.W. 4 Dukhi Sao, P.W. 5 Moti Ram, the informant and P.W. 6 Bhola Prasad. 5. P.W. 6 has been examined as formal witness who has proved the formal F.I.R. and fardbeyan which have, been marked Exts. 2 and 3 respectively. The informant is P.W. 5 and he has been declared hostile as he has not supported any part of the prosecution case. P.Ws. 2, 3 and 4 have also been declared hostile. The only witness who has supported the prosecution is P.W.1. has stated that on 18.3.1980 at about 7.30 P.M. while he was at his house, he heard sound of some persons crying in the name of theft. Thereafter, he rushed towards the said direction and saw some persons escaping. Two persons were running with bundles of clothes. On interrogation, they threw the bundles of clothes and one persons was caught who disclosed his name as Horil Nonia and escaped accused was Lakhpati Nonia. In the meantime, the police came and Horil Nonia was handed over to the police. 6. Except the evidence of P.W. 1, there is no evidence to support the prosecution version. The informant is the sole eye witness of the occurrence and he is person whose shop was looted away but he has clearly stated in his evidence that the appellant was known to him from before and he used to purchase clothes from his shop. He has denied that the appellant has participated in the alleged crime. Not only this, the clothes which were said to have been seized from possession of the appellant, were neither displayed for test identification nor were identified by the informant. He has denied that the appellant has participated in the alleged crime. Not only this, the clothes which were said to have been seized from possession of the appellant, were neither displayed for test identification nor were identified by the informant. The informant has stated that he had put his signature on the plain paper and the fardbeyan was not read over to him 7. After analyzing the entire evidences, it transpires that the evidence of sole witness P.W.1 who to some extent supported the prosecution case, has not been supported by any other witness. Not only this, the informant, whose shop was looted away, has not supported the prosecution case and has been declared hostile. So I am of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubt. Accordingly, the appellant is entitled to be acquitted. 8. In the result, this appeal is allowed and the judgment of conviction and sentence is set aside. The appellant is also discharged from the liability of his bail bond.