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2012 DIGILAW 1337 (PAT)

Panchu Rai v. State of Bihar

2012-09-20

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The appellant has been found guilty and convicted under Section 395 read with Section 397 of the Indian Penal Code and awarded a sentence to undergo rigorous imprisonment for ten years by the 6th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 585 of 1996. The appellant has remained in custody for 4 years 1 month and 20 days during the pendency of this case. 2. The occurrence took place on 03.05.1992. Dwarika Tiwary (PW 3), the informant has stated that there was a puja in his house because his niece was getting married. There were several family members staying in the house and after the puja, they had all dispersed and were sleeping at different places, such as courtyard, verandah etc. Preparations were being made inasmuch as ‘MARWA’ was being prepared for performing the marriage. In the mean time, about 30-35 persons entered the house of the informant. One of the miscreants shot him which hit him on his chest. Thereafter, they entered the courtyard and began to remove all the valuable items, money etc. from the house. During the said occurrence, the informant claims to have identified Mahendra Rai and one Lattoo, who are co-villagers of the informant amongst the miscreants. It has also been alleged that the nephew of the informant, namely, Ram Babu Tiwary (PW 4) was injured by one of the miscreants. The informant was taken to the hospital along with Ram Babu Tiwary for their treatment. 3. On the basis of the aforesaid statement, the trial began in which four witnesses have been examined on behalf of the prosecution. Unfortunately, the Investigating Officer of this case could not be examined. The prosecution has also failed to prove the injury report, if any, much less, examine the doctor who treated the injuries of PWs 3 and 4. 4. PW 1 Mathur Tiwary is the family member of the informant. He claims to have identified three persons during the occurrence, namely, Mahendra, Lattoo Tiwari and Panchu Rai. This witness admits at paragraph 13 that he had not named the dacoits in front of the Investigating Officer in the statement recorded under Section 161 of the Code of Criminal Procedure. This Court, therefore, finds that the evidence of this witness with respect to the identification of the miscreants cannot be believed. This witness admits at paragraph 13 that he had not named the dacoits in front of the Investigating Officer in the statement recorded under Section 161 of the Code of Criminal Procedure. This Court, therefore, finds that the evidence of this witness with respect to the identification of the miscreants cannot be believed. A suggestion was also given that there was a dispute between Pashupati Tiwary, relative of PW 1 and the appellant which has been denied. 5. PW 2 Lal Babu Tiwary, although present at the time of the occurrence, claims to have hid himself and as such, he admits that he was not able to identify any of the miscreants. 6. PW 3 Dwarika Tiwary is the informant of this case. He supports his case in the examination-in-chief but admits in paragraph 16 that he had not named the appellant in the First Information Report. At paragraph 22, it has been stated that he was informed by his nephew (PW 4) the name of the appellants, while they were going to the hospital for treatment. It thus appears that the informant had not named the appellant initially but had named him in his further statement before the Investigating Officer, when the name of the appellant was disclosed to him by his nephew. 7. PW 4 Ram Babu Tiwary was also supposedly injured during the occurrence. It is his case that Panchu Rai, the appellant, had fired at him which hit him near his waist. According to this witness, he had identified Panchu Rai. It is important to note that PW 4 has specifically stated that he had not disclosed the name of Panchu Rai to the informant Dwarika Tiwary nor had he told him regarding the manner in which he had received the injury. I may quote the relevant portion, which is ^^bl chp lwpd lkFk esjk ?kVuk ds lEcU| esa dksbZ ckrphr ugha gqvkA bl vku ds dze esa }kjdk frokjh ikpw jk; dk uke ugha fy;k Fkk ?kVuk esa gksus dkA** At paragraph 5, this witness has stated that ^^}kjdk frokjh dks eSaus ugha dgk Fkk ?kVuk ds pkj ik¡p fnu ckn fd ikWapw jk; Hkh ?kVuk esa lfEefyr FkkA** It would thus appear that PW 4 who has supposedly identified the appellant had not disclosed the name of the appellant till 4 to 5 days of the occurrence. It may be noted here that PW 3 states that he has named Panchu Rai in the further statement, which was recorded on the next day, whereas PW 4 states that he had not disclosed the name till 4 to 5 days after the occurrence. A suggestion has been given to PW 4 that he has named Panchu Rai because there is a dispute between the backward and the forward category of persons in the village. 8. The evidence referred to above would lead this Court to conclude that the name of Panchu Rai, appellant, has been added as an afterthought by the informant. Not a single witness had disclosed the name of this appellant at the time of lodging of the First Information Report which was lodged at the Sadar Hospital. This Court cannot conclude that it was the natural conduct of the informant to disclose the name of the miscreants, after getting an opportunity to interact with them after the dacoity, however, the evidence of PW 4 quoted above suggests otherwise. Therefore, the only evidence that remains against the appellant is the evidence of PW 4 Ram Babu Tiwary who alleges that it was Panchu Rai who had participated in the dacoity and had fired at him. The prosecution has not been able to establish the injury supposedly inflicted by the dacoits on the informant and PW 4, and therefore, some doubt is raised in the mind of this Court regarding the allegation as levelled by PW 4. The other family members do not support the case of PW 4 inasmuch as if it was true, then the natural conduct of Ram Babu Tiwary would be to disclose the name of the appellant to all his family members considering that there is specific allegation against him. 9. In the circumstances aforesaid, this Court considering these aspects acquits the appellant by giving him the benefit of doubt. The appellant will be discharged from the liabilities of the bail bonds furnished earlier in this case. 10. In the result, this appeal is allowed.