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2012 DIGILAW 1064 (PAT)

JITENDRA SINGH v. STATE OF BIHAR

2012-08-02

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. This appeal arises out of the judgment of conviction and the order of sentence dated 19th January, 1994 passed in Sessions Trial No. 33 of 1982 by the 2nd Additional Sessions Judge, Begusarai whereby the Trial Court has found and held the appellants guilty for the offence punishable under Section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of ten years each. 2. The prosecution case has been instituted by Shankar Mistri, P.W. 4 alleging therein that between the night of 12th -13th of July, 1977, 20-22 two persons entered in his house and began to commit dacoity. The informant claims to have identified Jitendra Singh. He further claims that his uncle Nebo Sharma, P.W.2, disclosed the name of Baleshwar Tanti, Rajendra Singh, Kartik Tanti, Bhiku Mahto, Ramchandra Tanti and Ram Padarath Yadav who are all residents of village Samastipur. It is also said that alarm had been raised by the informant and then the persons of the village came to the place of occurrence. Some of the looted articles were found lying outside the house. The details have been mentioned in the First Information Report regarding the items that have been stolen from the house of the informant. 3. The appellants have filed Exhibit-A by way of defence, to show that Bhikho Mahto i.e. appellant no. 4 had instituted a case against Nebo Sharma (P.W. 2) in which Ram Chandra Tanti, Bhikho Mahto and Kartik Tanti are witnesses. It is said that on account of enmity the appellants have been implicated in this case. 4. Mr. Shakil Ahmad Khan, Counsel appearing for the appellants submits that the appellants and the witnesses are from the neighbouring village and are well known to each other. The appellants know all the residents and the fact that they have come without hiding their identity indicates that their names have been deliberately dragged in this case of dacoity. It is further submitted that the means of identification was a lantern and the torch, both which have not been produced before the Investigating Officer. 5. Five witnesses have been examined in this case. P.W.1, Baleshwar Sharma is the cousin of the informant. He has identified Jitendra Singh, Baleshwar Tantni and Ram Padarath Yadav in the lantern light. It is further submitted that the means of identification was a lantern and the torch, both which have not been produced before the Investigating Officer. 5. Five witnesses have been examined in this case. P.W.1, Baleshwar Sharma is the cousin of the informant. He has identified Jitendra Singh, Baleshwar Tantni and Ram Padarath Yadav in the lantern light. He said that Nebo had disclosed the names of all the appellants, except Jitendra Singh to him. Attention of this witness has been drawn to the statement given by him before the Investigating Officer. He has stated in Court that he stated before the Investigating Officer that he does not remember whether he had told the Investigating Officer that he identified the dacoits in the lantern light which was burning in the courtyard of the house. The Investigating Officer at paragraph-17 contradicts this aspect of the matter and states that this witness have not stated that he had identified the appellants in the lantern light or that the miscreants were carrying weapons and a torch in their hands. Bhola Sharma also denied that there were enmity between P.W. 2 and the appellants and that Ram Padarath, Kartik and Ramchandra are witnesses against Nebo Tanti in a case filed by Bhikho Mahto. 6. P.W.2 had identified appellants no. 2, 3, 4, 5 and 6. He denies the suggestion that there was enmity between him and Bhikho Mahto. He had accompanied the informant at the time of lodging of the case at the Police Station. According to Nebo Tanti the Daroga had pulled him up (scolded him) for lodging a false case at the time he went to institute a case. P.W.3 Mahadeo Mahto is the uncle of the informant he does not identify any of the witnesses as he lives in West Bengal. His evidence is not of much use to the prosecution or the defence except to establish the factum of the occurrence. 7. P.W.4, Shankar Sharma, the informant has proved Exhibit-1 the formal First Information Report and Exhibit-2 the seizure list of the articles which were found outside the house. At paragraph-9 this witness has stated that Ambika Prasad Singh, Daroga of the Police Station had assaulted him for the reason that he wanted the informant to implicate certain persons. Surprisingly, after assaulting this witness that Daroga completed the recording of the fardbeyan. At paragraph-9 this witness has stated that Ambika Prasad Singh, Daroga of the Police Station had assaulted him for the reason that he wanted the informant to implicate certain persons. Surprisingly, after assaulting this witness that Daroga completed the recording of the fardbeyan. The case made out by the informant against the Daroga, seems rather unbelievable, as the Daroga has recorded the fardbeyan of the informant, which according to the informant is the correct version of the occurrence. He had said that P.W.4 had stated that he lodged a complaint against the Daroga of the Police Station but no document has been produced to substantiate this statement. According to this witness, he had identified the appellants in the torch light. He claims to know Jitendra Singh from his student life. At paragraph 24 he denies the suggestion that Bhikho Mahto had lodged a case against him in which Kartik, Rampadarath and Ramchandra were the witnesses. Lastly, the Investigating Officer has been examined as P.W.5 in this case. The most important feature of his evidence is that the Superintendent of Police has asked the Investigating Officer to conduct an enquiry on 31st of July 1997 as he suspected that the informant has lodged a false case against these appellants. The Investigating Officer, P.W.5 has stated that he did not conduct any enquiry after the direction of the Superintendent of Police as he has already questioned the accused on 14.07.1977 regarding their involvement in the present case. According to the Investigating Officer, they were not able to produce any document to show enmity between the informant and this witness. The Investigating Officer has also stated that since lanterns and Dhibries are available in all house of the village, he did not think it important to seize the lantern which was the source of identification in this case. The conduct of the Investigating Officer does not appear to be fair. The Investigating Officer ought to have at least recorded in the Case Diary that the source of light by which the accused were identified was shown to him, especially as it is admitted by the witnesses that it was the Dark Night. The Investigating Officer ought to have conducted an independent enquiry as per the directions of the Superintendent of Police to determine as to whether the appellants had been implicated in this case. The Investigating Officer ought to have conducted an independent enquiry as per the directions of the Superintendent of Police to determine as to whether the appellants had been implicated in this case. Questioning the accused who were probably in police custody, as they were named accused in the First Information Report cannot be held to be an enquiry in terms of the direction of Superintendent of Police, the supervising authority. 8. On perusal of the evidence of all the witnesses, it would appear that the appellants were well known to all three witnesses who have identified them since they come from the neighbouring village. The evidence also reveals that the prosecution and specifically the informant and Nebo Tanti, P.W.2 have deliberately suppressed the fact that there was some sort of enmity between the appellants and the informant in order to ensure that the appellants would not get away on the ground that the implication was because of some previous cases pending between the parties. Ordinarily, in a case of dacoity, persons who were well known, who take precaution for hiding their identity, unless they were veteran criminals. The judgment of the Trial Court indicates that these appellants were not involved in any other case and, therefore, it would be expected that they would have not been bold enough to commit the act of dacoity without concealing their identity. Exhibit-A is a certified copy of the order sheet/proceedings before the Panchayat wherein the cause of the enmity has been recorded indicating that Bhikho Mahto had complained against Nebo Tanti. It also indicates that some of the witnesses to this case, are the witness before panchayat and as such an explanation has been given by the appellants for being dragged in the present case, which appears to be plausible to this Court. 9. Considering the aforesaid facts and for the reasons discussed above, this Court finds that the evidence of the witnesses does not inspire the confidence of the Court, as such, this Court acquits all the appellants in this case. They are discharged from the liabilities of their bail bonds furnished earlier in this case.