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Jharkhand High Court · body

2009 DIGILAW 1316 (JHR)

Shibu Dehari v. State of Jharkhand

2009-09-23

PRADEEP KUMAR

body2009
JUDGMENT Nobody appears on behalf of the appellant on repeated call. At the request of the Court Mr. P.K. Sahay, Advocate argued the case on behalf of the appellant as amicus curiae. 2. This appeal is directed against the judgment of conviction dated 10.5.2001 and order of sentence dated 11.5.2001 passed by Shri Satya Prakash, 2nd Additional Sessions Judge, Dumka in Sessions Case No. 142 of 1996, by which judgment he found the appellant guilty under Section 396 of the Indian Penal Code and sentenced him to undergo R.1. for 10 years and to pay a fine of Rs. 2,000/- and on default of payment of fine to undergo for further R.1. for 3 months. While he acquitted the other accused, Suresh Dehri and Md. Akhtar Hussain @ Disco. 3. It is submitted by the learned counsel for the appellant that the conviction of the appellant, Shibu Dehari on the basis of a single identification made by P .W. 1informant, Dular Murmu, who admits that the appellant Shibu Dehari was known to her from before and he used to come everyday to his house. In spite of that it is not acceptable that how he will come for committing the dacoity in his house without concealing his face in view of the fact that there was no source of light for identification and other witnesses have stated that it was a dark night. In that view of the matter, the appellant deserves to be given benefit of doubt and acquitted him from the charges. He has further submitted that the other accused persons, namely, Md. Akhtar Hussain @ Disco, who was also identified by P.Ws. 1 & 6, was acquitted from the charges and other accused, Suresh Dehri, who was also identified by all the witnesses also acquitted from the charges.• In that view of the matter, the trial court has made double standard for convicting the sole appellant only on the evidence of single witness. 4. On the other hand, learned counsel for the State has opposed the prayer and submitted that since identification of one witness was sufficient and as such the court has rightly convicted the sole appellant. 5. 4. On the other hand, learned counsel for the State has opposed the prayer and submitted that since identification of one witness was sufficient and as such the court has rightly convicted the sole appellant. 5. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by P.W. 2, Dular Murmu on 26.1.1996 before the Kathikund Police Station stating therein that in the night of 25.1.1996 at about 10 P.M. her parents and other family members had gone inside rooms for sleeping and she was burning the wood for the son of her younger daughter in the Angan. When, someone knocked her door, then she saw towards that door, the door was closed and at that time one person entered into the house through the side window of the door having no window planks. She identified him as the appellant, Shibu Dehri. After opening the door 7-8 persons entered into the house and committed dacoity. They also assaulted her, her father, her mother and took away cash Rs. 3,000/-, four silvers, 16 cotton and tericot saris and other things and thereafter bolted the house from outside and they ran away. After the house was opened they found that her brother, Lal Murmu is unconscious and subsequently he died in the morning. She also stated that subsequently she came to know that the dacoits also committed dacoity in the house of her neighbour, Lakhiram Murmuand Nachun Hansda had told that she identified Suresh Mare amongst the dacoits in the light of earthen lamp. 6. On the basis of the said fardbeyan the police registered a case under Section 396 of the Indian Penal Code and during investigation they arrested the appellant, Shibu Dehri accused, Suresh Mare @ Dehri and Disco @ Md. Akhtar. Since the case was exclusively triable by a Court of Sessions the learned Magistrate after taking cognizance of the case, committed the same to the Court of Sessions and lastly the case was finally tried by 2nd Additional Sessions Judge, Dumka, who convicted the appellant as aforesaid. 7. In order to prove the charges the prosecution has examined as many as 13 witnesses. 7. In order to prove the charges the prosecution has examined as many as 13 witnesses. P.W. 1, Dular Murmu is the informant of this case, P.W. 2, Sukurmani Hembrom, P.W. 3, Bahamuni Murmu, P.W.4, Sabina Murmu, P.W. 5, Pradhan Murmu, P.W. 6, Paltan Murmu, P.W. 7, Muslim Ansari: P.W. 8, Dr. Vijay Prasad Ram, P.W. 9, Rubin Hembrom, P.W. 10, Budilal Hembrom, P.W. 11, Dr. Ramanand Sah, P.W. 12, Doman Murmu and P.W. 13, Subodh Kumar the Investigating Officer of the case. 8. It is important to note that out of 13 witnesses this appellant was named by only P.W. 1, Dular Murmu and stated in court that about 5 years ago at about 11-12 P.M. in the night she was burning• wood for her sister's child. At that time somebody knocked the door and one Shibu Dehri came and opened the door. Then, the other accused persons entered into the house through the door and flashed torch light and thereafter took away cash Rs. 3,000/-, four silvers, 16 cotton and tericot saris and other things and they also assaulted her, her father, her mother thereafter they ran away by closing the door from outside. In her cross-examination, she stated that she had identified one person, Shibu Dehri only for committed theft of Thali from her house. She also admitted that Shibu Dehri was known to her, he was her father's friend and he used to eat and drink with her father. She had told to Daroga she denied the suggestion that since Shibu Dehri used to play card with her father and once while drinking the accused, Shibu Dehri assaulted her father and hence he has falsely been implicated in this case. 9. Thus, the solitary witness, who identified this appellant in the F.I.R. and Court firstly said that she identified him by opening the door, but, in her cross-examination, she said that she identified him when he was committed theft of Thali and Lota. 10. Learned counsel for the appellant has further relied in a decision reported in 1988 BLJR. He also relied by the defence in trial, in which it has been held that if a witness, who was known from before to the prosecution witness and no attempt was made by him to conceal his identity then the evidence of such witness is doubtful. 11. He also relied by the defence in trial, in which it has been held that if a witness, who was known from before to the prosecution witness and no attempt was made by him to conceal his identity then the evidence of such witness is doubtful. 11. In the present case, I find that the solitary witness P:W. 1 has admitted that she was knowing the appellant from before who was her father's friend used to eat and drink with her father everyday, in that view of the matter, it is not possible that he will enter into her house without concealing his identity and will only open the door. As per her statement, in her cross-examination, only for committing theft of Thali and Lota by the appellant, Shibu Dehri from her house and ran away. 12. In that view of the matter, the single identification by P.W. 1 is doubtful in nature and the appellant is given benefit of doubt and therefore, the appellant, Shibu Dehri is acquitted from the charges levelled against him and the judgment of conviction and sentence passed by the trial court is set aside. 13. The appellant is in custody, he should be set free forthwith, if not wanted in any other case.