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2009 DIGILAW 697 (JHR)

Ashok Ram v. State of Jharkhand

2009-05-05

PRADEEP KUMAR

body2009
JUDGMENT : By Court.-Heard learned counsel for appellants and learned counsel for the State. 2. The case is directed against the conviction and sentence dated 27.9.2001 passed by Sri Ramanuj Narayan, 7th Additional Sessions Judge. Palamau in S.T. No. 439 of 1995 by which judgment, he found both the appellants convicted under Section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years. 3. It appears that the instant case is started on the basis of fardbeyan given by the informant Rakesh Kumar to the police stating therein that on 29.8.1989 at about 9:15 hours, ten dacoits committed dacoity in his house. They took away ornaments of his mother, three wristwatches, tape recorder, one gun, catridges and some cash from the house of the informant. The informant identified two dacoits, namely, the appellant Ashok Ram and Shambhu Singh in the light of lantern. The informant has given description of other unknown dacoits but none of them were apprehended. 4. The police after investigation submitted charge-sheet against these two appellants Ashok Ram and Shambhu Singh and one other accused Yogendra Ram. Since, the case was triable exclusively by the Court of Sessions, hence the Judicial Magistrate after taking cognizance of the case, committed the same to Sessions. The case was tried by Second Additional Sessions Judge. Palamau, who found the appellants guilty and acquitted Yogendra Ram. 5. It has been submitted by the learned counsel for the appellants that in course of trial, the prosecution has examined seven witnesses. But except, P.W. 6, Rakesh Kumar, the informant and his brother Mukesh Kumar, nobody claims to identify the accused at the time of occurrence. Even the mother of the informant. P.W. 4 has submitted that she has not identified the accused at the time of occurrence. In view of the matter, the identification of the two witnesses P.W. 5 and P.W. 6 and those who have admitted that the accused persons were known to them from before is doubtful. Moreover, the informant has claimed that he identified the two appellants in the light of lantern but it appears that it was not possible to identify anybody, since the dacoits had put off one lantern and other lantern was taken in custody by one of the dacoits, who made the lantern dim. Moreover, the informant has claimed that he identified the two appellants in the light of lantern but it appears that it was not possible to identify anybody, since the dacoits had put off one lantern and other lantern was taken in custody by one of the dacoits, who made the lantern dim. In that view of the matter, the conviction of the appellants is bad and fit to be set aside. 6. On the other hand, learned counsel for the State opposed the prayer and submitted that P.W. 5 and P.W. 6 both have claimed that they identified the both appellants in the light of lantern and they were knowing these two appellants from before as their uncle had an hotel by the side of school and there is no ambiguity in the identification and as such the both accused have rightly been convicted. 7. After hearing both the parties and going through the prosecution witnesses, I find that. prosecution has examined seven witnesses. P.W. 1 is the Suresh Ram, PW. 2 is the Poyari Ram, P.W. 3 is the Sohan Ram, P.W. 4 is the Yasoda Devi, the mother of the informant, P.W. 5 is Mukesh Kumar brother of the informant, P.W. 6 is the informant. Rakesh Kumar himself, PW. 7, Veena Kumari, is the sister of the informant. 8. It is important to note that that P.W. 1, P.W. 2 and P.W. 3 have been declared hostile. P.W. 1 Suresh Ram, PW. 2 is the Poyari Ram and P.W. 3 is Sohan Ram stated that they know nothing about the occurrence. However, P.W. 4. Yasoda Devi, the mother of the informant, she was present at the place of occurrence and the occurrence revolves around her. The informant has also stated that the dacoits took the key from the hand of his mother. The mother also gave her ornaments to the dacoits, who were standing in front of her and as such she had better opportunity to see the dacoits, than the informant and other witnesses who were studying on the table and reading in the light of lantern. P.W. 4 Yasoda Devi stated in court that at the time of occurrence at about 7: 15 in the evening and when she was sitting in her house with her two sons Rakesh and Mukesh and her. P.W. 4 Yasoda Devi stated in court that at the time of occurrence at about 7: 15 in the evening and when she was sitting in her house with her two sons Rakesh and Mukesh and her. daughter Veena Kumari, who was sitting in front of her, and in the meanwhile, one person entered the house and after holding her, wanted the gun from her and behind him, eight to ten persons have also entered the house, open the box and took out the gun and cartridges which belongs to her husband, who is the ex-army man and after making hulla, the villagers came, but in front of them, she did not identify any accused. She was declared hostile and in the cross-examination by the prosecution at Para-5, she stated that the two accused, standing in the dock, were not present at the time of dacoity. 9. P.W. 5 Mukesh Kumar and P.W. 6 Rakesh Kumar have stated that they identified two dacoits in the light of lantern. In that view of the matter, it is important to discuss that the informant Rakesh Kumar stated in court that while they were sitting in the verandah with his younger brother, Mukesh Kumar, sister Veena Kumari and his mother, then one person entered with a pistol and behind him about 12 persons entered and they demanded the gun and ornaments from her mother, then his mother stated that the gun is always remained with her husband, thereupon they entered the house, open the box, took. away the gun and 25 cartridges. His mother also gave her ornaments to the dacoits. At para-4, he stated that the dacoits left after taking the guns and ornaments and then he made hulla. At para-5, he stated that he identified two dacoits Shambhu Singh and Ashok Ram in the light of lantern. But it appears that in course of cross-examination at para-7, he stated that the lantern, by which they were studying, was taken by one dacoit, but he did not identify him. The dacoit who took tape, watch and other things kept on the table, he did not identify him also. He stated that one lantern which was inside the room, was put off by the dacoit and the other lantern that was taken in custody by the other dacoit, was also made the light of lantern dim. The dacoit who took tape, watch and other things kept on the table, he did not identify him also. He stated that one lantern which was inside the room, was put off by the dacoit and the other lantern that was taken in custody by the other dacoit, was also made the light of lantern dim. Thus, it appears that in front of the informant, there was only a dim lantern and the dacoits, who were taken the tape, watch and also taken the gun, were not identified by him, thus it is become doubtful that as to how, he identified the dacoit who was not present there in a dim lantern light. At para-13, in his cross-examination, he stated that the two appellants reside after 1/2 kilometer from his house and the uncle of the appellant, Ashok Ram has a sweet shop, where they took sweet also, which means that both the appellants were known to the family members of the informant and the mother and sister of the informant must also knew them from before. In that view of the matter P.W. 4 Yasoda Devi and the informant's sister P.W. 7 have stated that they did not identified these two appellants and as much the identification of the appellants by P.W. 5 and P.W. 6 becomes doubtful. 10. Accordingly, in my opinion, the appellants' identification has become doubtful, and hence the benefits of doubt will be given to them. Therefore, the benefit of doubt is given to these two appellants and the judgment and conviction passed by the trial court is set aside and the appeal is allowed. 11. The appellants are on bail and they are discharged from the bondage of bail bond.