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2013 DIGILAW 1174 (PAT)

Ramashish Paswan v. State of Bihar

2013-09-24

AKHILESH CHANDRA

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JUDGMENT Akhilesh Chandra, J. Heard the learned counsels appearing on behalf of the parties. 2. All the five appellants, who faced trial for the offences punishable under Sections 395 and 412 of the Indian Penal Code, but stand convicted only for the offence punishable under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years on 24th Day of June, 1999 by 3rd Additional Sessions Judge, Darbhanga passed in Sessions Trial No. 409 of 1998 Raiyam P.S. Case No. 12 of 1998, have preferred this appeal. 3. The prosecution has come out with a case as mentioned in Exhibit-3, the fardbeyan of Raj Kumar Sah (PW 6) recorded on 27.7.1998 at about 8.30 p.m. at police station in presence of his cousin Anand Kumar (PW 5) and Shanker Sah (PW 3) that on his return from normal agricultural work when he entered in his house for dinner suddenly the miscreants nine in numbers including the five appellants entered and appellant No. 1, Ramashish Paswan, while assaulting him by lathi enquired about the cash and ornaments, he avoided to reply, so brutally assaulted, anyhow escaped, but on return learnt from the inmates of the family about loss of Rs.10,000/- in cash, different ornaments and other house hold articles worth Rs.21,000/-, as detail mentioned therein, which may be identified by the family members at appropriate stage and the miscreants were the co-villagers wearing lungi and ganji and armed with lathi, fled away towards West with the booty. 4. The police after completion of the investigation submitted charge-sheet. However, all the five appellants were charged for the offence punishable under Section 395 of the Indian Penal Code and the appellant Nos. 1, 4 & 5, namely, Ramashish Paswan, Jitan Paswan and Sukhlal Paswan were also charged for the offence punishable under Section 412 of the Indian Penal Code. In order to substantiate the charges, the prosecution examined altogether ten witnesses besides producing following documents:- 1. Exhibits-1 to 1/3 : signature of Jagdish Sah on seizure lists dated 28.7.1998. 2. Exhibit-1/4 : signature of Satan Sahu on seizure list dated 28.7.1998. 3. Exhibit-1/5 : signature of Raj Kumar Sah on fardbeyan dated 27.7.1998. 4. Exhibits-1/6 to 1/8 : signature of Raman Kumar Mishra on seizure list dated 28.7.1998. 5. Exhibit-2 : T.I. Parade chart. 6. Exhbit-3 : Fardbeyan. 7. Exhbit-4 : Formal F.I.R. 8. 2. Exhibit-1/4 : signature of Satan Sahu on seizure list dated 28.7.1998. 3. Exhibit-1/5 : signature of Raj Kumar Sah on fardbeyan dated 27.7.1998. 4. Exhibits-1/6 to 1/8 : signature of Raman Kumar Mishra on seizure list dated 28.7.1998. 5. Exhibit-2 : T.I. Parade chart. 6. Exhbit-3 : Fardbeyan. 7. Exhbit-4 : Formal F.I.R. 8. Exhbits-5 to 5/3 : seizure list of accused Ramashish Paswan, Jitan Paswan, Ratan Paswan and Sukhlal Paswan. 9. Exhbit-6 : confessional statement of accused identified by the witness. No oral or documentary evidence was produced by the defence and on consideration of the materials available learned trial Court convicted and sentenced the appellants in the manner aforestated. 5. It is vehemently contended by learned counsel for the appellants that there is absolutely no material against them and the majority of the prosecution witnesses including the informant have already been declared hostile, but only on the statements of the official witnesses, though not on the point, the appellants have been convicted. On the other hand, the learned Additional Public Prosecutor representing the State hesitantly tried to support the findings of the trial Court. 6. Out of the total ten prosecution witnesses, PW 6, namely, Raj Kumar Sah, is the informant, who stated about arrival of the miscreants, his assault by them and their running away, but bluntly denied to indentify any of the miscreants and further said about obtaining his signature on blank paper (Exhibit-1/5) by the police when regained senses for a while. Further, in test identification parade, he said about identification of the looted articles by him and his wife. This witness was declared hostile and in spite of drawing attention of his earlier statement nothing could be taken from the prosecution by him and, in cross-examination by the defence, he further explains that due to darken night he was unable to identify anyone and since he was brutally assaulted he continued to be out of sense for several days and when for a while he was in his senses his signature was obtained. Further, whatever articles he identified, it was earlier shown and identified by the Investigating Officer to him. 7. One of the attesting witnesses to Exhibit-3, PW 5, namely, Anand Kumar Sah, said nothing and declared hostile. Further, whatever articles he identified, it was earlier shown and identified by the Investigating Officer to him. 7. One of the attesting witnesses to Exhibit-3, PW 5, namely, Anand Kumar Sah, said nothing and declared hostile. Another PW 3, namely, Shankar Sah, is the father of the informant and non-official prosecution witness and not declared hostile, but whatever has said learnt through his son, the informant (PW 6), who remained senseless. Thus, though this witness has named the appellants, but only on basis of identification claimed by the informant, who during trial, as stated above, has not identified anyone. So, the statement of this witness PW 3 lost significance. 8. PW 4, namely, Sajja Devi, is the wife of the informant, who states about the commission of Dacoity, but further claims that soon on arrival of the miscreants she also left the house. She did not name anyone, but claimed to identify the articles recovered during test identification parade. In cross-examination, she denies witnessing her husband being assaulted and further says that she could not see any of the assailants or miscreants taking away the articles. Further, whatever articles she identified, in test identification parade, she cannot say. PW 2, namely, Satan Sahu, is the witness on seizure list, proved Exhibit-1/4, but declared hostile. Similar is the position of PW 1, namely, Jagdish Sah, another witness on seizure list, proved Exhibits-1, 1/1, 1/2 and 1/3, but he also declared hostile and both claims to put their signatures on blank sheet under police pressure. 9. PW 7, namely, Raman Kumar Mishra, is the another witness on seizure list, proved his signature, marked as Exhibits-1/6, 1/7 and 1/8, but clearly denying any recovery and seizure in his presence. He also declared hostile. PW 8, namely, Manoj Kumar Tiwary, is the Judicial Magistrate in whose presence test identification parade of the articles said to have been recovered was conducted. He proved Exhibit-2, but in face, of the evidence, as stated above, no practical purpose is to be served from his testimony. 10. PW 9, namely, Ravi Kumar, is the police official, who proved Exhibits-3 recorded by Officer-in-Charge, Shyam Kumar Singh. He further proved Exhibit-4 and 5 series. He investigated the case as authorized by the Officer-in-Charge, but in spite of his efforts finds no support from any independent witness including alleged victim. 10. PW 9, namely, Ravi Kumar, is the police official, who proved Exhibits-3 recorded by Officer-in-Charge, Shyam Kumar Singh. He further proved Exhibit-4 and 5 series. He investigated the case as authorized by the Officer-in-Charge, but in spite of his efforts finds no support from any independent witness including alleged victim. Thus, scribe of Exhibit-3 has not been examined, so the statement of the informant on the point of obtaining his signature without he being in senses cannot be rebutted. PW 10, namely, Nitya Gopal Tiwary, is another Investigating Officer, who submitted charge-sheet etc. 11. Thus, on overall consideration of the materials discussed above, it is crystal clear that the prosecution has not been able to substantiate its case rather it can be said that not even attended to substantiate the charges against the appellants. Consequently, the judgment of conviction and order of sentence as recorded by the trial Court is set-aside. The appeal is hereby allowed. All the above-named five appellants are set free from the liabilities of bail-bonds furnished on their behalf. Appeal allowed.