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2012 DIGILAW 1482 (PAT)

Md. Sahabuddin @ Kaila v. State of Bihar

2012-10-17

SHEEMA ALI KHAN

body2012
ORAL JUDGMENT Sheema Ali Khan, J.––Nobody appears on behalf of the appellants to press this appeal. Accordingly, Ms. Abha Singh, Advocate is appointed as Amicus Curiae to assist in this appeal on behalf of the appellants. 2. The appellants have been found guilty under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years by the Assistant Sessions Judge, Araria in Sessions Trial No. 338 of 1990. 3. The prosecution case has been instituted on the fardbayan of Madan Lal Rajak (PW-1) alleging that around midnight, he woke up because he heard his sister-in-law crying loudly. He saw that some miscreants had entered his house and the house of his Bhabhi and the brother. He raised alarm whereupon the miscreants threatened them. It is said that they took away ornaments, clothes etc. belonging to the informant. 4. On 11.7.1989, the Police raided the house of Md. Afazal and Md. Hasib and recovered articles suspected to have been belonging to the informant and others. A Test Identification Parade of the articles was held in which the witnesses had been able to identify some of the articles put up for Test Identification Parade. 5. During the trial, eight witnesses have been examined in this case on behalf of the prosecution. PW-1 Madan Lal Rajak is the informant of this case, who supports tile factum of dacoity. He also supports the fact that he had identified certain clothes belonging to him in the Test Identification Parade, however, he does not claim to have identified any of the accused persons in this case before the Trial Court. 6. Similar is the evidence of PW-2 Vijay Nand Rajak, brother of the informant, PW-3 Nirmala Devi, PW-4 Gajanand Rajak, PW-5 Leela Devi (Bhabhi of the informant) and PW-6 Dinesh Rajak. None of these witnesses have identified any of the appellants in this case. The Trial Court has considered that PW-3 had identified Mahafuz and Yasin during the investigation, whereas PW-4 had identified Sahabuddin and Rajabul. 7. PW-7 Sharwan Rajak has supported the factum of dacoity but has not identified the dacoits and has thus been declared hostile. It has been observed by the Trial Court that PW-7 had identified Sahabuddin, Mahafuz and Yasin in the statement under Section 161 of the Code of Criminal Procedure. 8. PW-8 Md. 7. PW-7 Sharwan Rajak has supported the factum of dacoity but has not identified the dacoits and has thus been declared hostile. It has been observed by the Trial Court that PW-7 had identified Sahabuddin, Mahafuz and Yasin in the statement under Section 161 of the Code of Criminal Procedure. 8. PW-8 Md. Mujibur Rahman is a formal witness who has proved the handwriting of the Officer-in-charge, who had signed on the First Information Report. 9. In this case, the Court finds that none of the witnesses have claimed to have identified any of the accused persons in Court and as such, this Court cannot on the basis of the statements recorded in the case diary, convict the appellants. The statement recorded in the case diary can be looked into only for the purposes of aiding the Court and not for the purposes of coming to a conclusion regarding the conviction or acquittal of the persons facing trial. 10. Considering the facts aforesaid, the appellants are acquitted of the charges under Section 395 of the Indian Penal Code levelled against them. They are also discharged from the liabilities of the bail bonds furnished earlier in this case. 11. In the result, this appeal is allowed.