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2010 DIGILAW 184 (JHR)

Md. Anwar v. State of Bihar (Now Jharkhand)

2010-02-01

PRADEEP KUMAR

body2010
JUDGMENT : PRADEEP KUMAR, J. 1. Heard the learned Counsel for the appellants and the learned Counsel for the state. 2. The instant appeal is directed against the judgment of conviction dated 26.02.1999 and order of sentence dated 27.02.1999 respectively passed in S.T. No. 24 of 1979 by Shri Dhruv Narayan Upadhyay, 1st Additional Sessions Judge, Giridih, by which judgment he found the appellant guilty u/s 394 of the IPC. and sentenced him to undergo R.I for seven years and also a fine of Rs. 500/-, in default of making payment of fine, he shall suffer one month simple imprisonment. 3. It is submitted by learned Counsel for the appellant that the conviction of the appellant is based on evidence of P.W. 2. Except the evidence of P.W.2, nobody identified this appellant. Even identification of P.W. 2 is contradicted by himself in his cross-examination. Moreover, he submitted that he identified the accused in the light of lantern, which was burning outside the shop, but the said lantern was not produced in the Court. Other witnesses and Investigating Officer have not been examined. In that view of the matter, conviction of the appellant is bad in law and fit to be set aside. 4. On the other hand, learned Counsel for the State has supported the prosecution case and submitted that the solitary eye-witness P.W.2 is reliable witness and trial Court has rightly convicted the appellant on the basis of single identification of a witness. 5. After hearing both the parties and going through the records, it appears that the prosecution case was started on the basis of fardbayan given by the P.W. 2, Somer Mian (informant) on 09.08.1976 at 7.45 A.M. stating therein that he was an employee of the shop of Islam Mian and he was sleeping in the shop along with Islam Mian and Budhuwa Mian @ Mansur in the night and there was burning a lantern. Time was about two hours before the Azan, about 2 to 3 A.M. in the morning, when he woke up, he saw that the accused persons were demanding the key of the shop from Islam Mian. He further identified the accused persons namely Badri Kumhar, Basant Dusadh, Anwar Mian and Chando Kumhar in the light of lantern. Time was about two hours before the Azan, about 2 to 3 A.M. in the morning, when he woke up, he saw that the accused persons were demanding the key of the shop from Islam Mian. He further identified the accused persons namely Badri Kumhar, Basant Dusadh, Anwar Mian and Chando Kumhar in the light of lantern. They were demanding the key from Islam Mian, but the key was not given by him then Islam Mian was assaulted by Basant Dusadh and Budhuwa Mian was assaulted by Chando Kumhar. When he saw this, he wanted to raise hulla, but Basant Dusadh closed his mouth and cut his tongue and also assaulted him on his head. Thereafter, Anwar Mian opened the lock and took the cash box containing Rs. 24/- and fled away. When all the accused persons left the place, he noticed that Islam Mian and Budhuwa have been done to death and he was also having injuries on his tongue and neck. Due to fear he kept quite during the night, but in the early morning when Bhutka came and called Budhuwa, he disclosed about the incident and the name of the assailants to Bhutka and thereafter, both of them raised nullah, which attracted the villagers and Mukhiyaji to whom they had narrated the incident. 6. On the basis of the said fardbeyan, police registered a case under Sections 394, 302 and 307 of the Indian Penal Code against Badri Kumhar, Basant Dusadh, Anwar Mian and Chando Kumhar and after investigation, police submitted charge-sheet in the case against Basant Dusadh and Anwar Mian under Sections 394, 302 and 307 of the Indian Penal Code. Since, the case was exclusively triable by the court of Sessions, after taking cognizance learned Magistrate committed the case to the court of Sessions and subsequently, the case was tried by learned 1st Additional Sessions Judge, Giridih, who found the appellants guilty u/s 394 of the I.P.C. and sentenced them as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as five witnesses. P.W. 1, Fakruddin Ansari. P.W. 2, Somer Mian, the informant of the case. P.W. 3, Md. Safique @ Bhutka Mian P.W. 4, Mobarak Mian. P.W. 5, Parmanand Prasad. P.W. 1, Fakruddin Ansari, is a formal witness he proved his signature on the seizure list of blood stained bricks, lantern and one wooden box. P.W. 1, Fakruddin Ansari. P.W. 2, Somer Mian, the informant of the case. P.W. 3, Md. Safique @ Bhutka Mian P.W. 4, Mobarak Mian. P.W. 5, Parmanand Prasad. P.W. 1, Fakruddin Ansari, is a formal witness he proved his signature on the seizure list of blood stained bricks, lantern and one wooden box. He further proved his signature on the inquest reports with regard to the two deceased. He has proved his signature as Ext. 1, 1/1 and 1/2. P.W. 2, Somer Mian, the informant of the case. He has supported the prosecution case. P.W. 3, Md. Safique @ Bhutka Mian, has not supported the prosecution case and turned hostile. P.W. 4, Mobarak Mian, has also turned hostile and not supported the prosecution case. P.W. 5, Parmanand Prasad, is a formal witness, who has proved the formal, F.I.R and fardbeyan, which is marked as Ext. 2 and 3. It appears that neither I.O. nor the Doctor has been examined in the case nor the post-mortem report has been produced in Court. Even out of five witnesses only P.W. 2, Somer Mian has supported the prosecution case and all other prosecution witnesses turned hostile. P.W. 2, Somer Mian, informant, stated in the Court that he was an employee of the shop of Islam Mian and in the night of occurrence he was sleeping in the shop of Islam Mian along with Islam Mian and Budhuwa Mian @ Mansur and there was burning a lantern. Time was about two hours before the "Azan", about 2 to 3 A.M. in the morning. When he woke up, he saw that somebody were demanding the key of the shop from Islam Mian. He identified the accused persons namely Badri Kumhar, Basant Dusadh, Anwar Mian and Chando Kumhar in the light of lantern. Anwar Mian was demanding the key from Islam Mian, but the;key was not given by him then Islam Mian was assaulted by Basant Dusadh and Budhuwa Mian was assaulted by Chando Kumhar. When he saw this, he wanted to raise hulla, out Basant Dusadh closed his mouth and cut his tongue and also assaulted him on his head. Thereafter, Anwar Mian opened the lock and took the cash box containing Rs. 24/- and fled away. When he saw this, he wanted to raise hulla, out Basant Dusadh closed his mouth and cut his tongue and also assaulted him on his head. Thereafter, Anwar Mian opened the lock and took the cash box containing Rs. 24/- and fled away. When all the accused persons left the place, he noticed that Islam Mian and Budhuwa have been done to death and he was also having injuries on his tongue and neck. Due to fear he kept quite during the night, but in the early morning when Bhutka came and called Budhuwa, he disclosed about the occurrence and the name of the assailants to Bhutka and thereafter, both of them raised hullah, which attracted the villagers and Mukhiyaji to whom they had narrated the incident. Thereafter, police arrived at the shop and recorded the same. He also identified the accused Anwar Mian in the Court. During the course of cross-examination he admitted that the night was dark and initially he had identified three persons namely Basant, Chando and Budhuwa. He identified firstly the Anwar Mian, when Anwar Mian had taken the cash box. He further said that he had identified Anwar Mian from his voice, but simultaneously he says that he had seen Anwar Mian from the distance of ten yards from the back. He had also seen the face of Anwar at the time of occurrence. In paragraph-7, he stated that he was sleeping on the verandah alongwith deceased Budhuwa and Islam. He has also stated that in the evening kerosene oil was filled in the lantern, which was burning during the whole night and as such, the glass of the lantern became blacken in the morning and thin light was coming. He further stated that the accused persons had covered their face by Chadar. 8. Thus, it appears that as far as identification of this appellant is concerned, P.W.2, who is the solitary eye-witness, has given contradictory statement in the Court. Firstly, he said that he identified the accused when he had taken the cash, box, subsequently he said that he saw the appellant from a distance of 10 yards: from the back. Again he said that he identified the accused by his voice and he, also submitted in F.I.R. that the lantern was burning in the verandah outside the shop. According to him, lantern was fluctuating and thin light was coming. Again he said that he identified the accused by his voice and he, also submitted in F.I.R. that the lantern was burning in the verandah outside the shop. According to him, lantern was fluctuating and thin light was coming. As per the F.I.R., occurrence took place at about 3 A.M. in the morning. In that view of the matter, learned trial Court had wrongly relied on the contradictory solitary evidence of the informant P.W. 2 because his statement is not supported by the any person, whose name was taken by him in the F.I.R. and in the Court he admitted that he told about the occurrence to P.W. 3, Bhutka Mian. In that view of the matter, conviction dated 26th February, 1999 and sentence dated 27.02.1999 passed by the trial Court in S.T. No. 24 of 1979 is bad in law and fit to be set aside. 9. Accordingly, this appeal is allowed and conviction dated 26th February, 1999 and sentence dated 27.02.1999 passed by the trial Court in S.T. No. 24 of 1979 is set aside. Since, the appellant is on bail, he is released from the bondage of bail.