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2013 DIGILAW 1360 (PAT)

Bishwambhar Tiwari v. State of Bihar

2013-12-02

ANJANA PRAKASH

body2013
JUDGMENT : Smt. Anjana Prakash, J. The appellants have been convicted under Section 395, IPC and sentenced to R1 for seven years by the 1st Additional Sessions Judge, Rohtas at Sasaram in S.Tr. No. 211/94/26/95 by judgment and order dated 6.8.1999. 2. The case of the informant is that on the night of 24/25.6.1992 while he was sleeping on his terrace 8-10 persons committed dacoity in his house. In the light of electric bulb he claimed identification of the appellant No. 1 who was his co-villager and could identify the rest if given an opportunity. 3. During trial the prosecution examined eleven witnesses out of whom PW 11, is the informant himself who has supported the fact that 8-10 dacoits committed dacoity in his house in course of which several households articles were looted away. He identified two dacoits one of whom was his co-villager. He further identified appellants No. 2 and 3 in the Test Identification Parade held later. 4. PW 1, Anirudh Tiwary is a hearsay witness who supported both the factum of dacoity as well as on the point of identification of the appellant No. 1. 5. PW 2, Gupteshwar Tiwari is co-villager who supported once again both the factum of the occurrence as well as the identification as a hearsay witness. 6. PW 3, Poonam Devi and PW 4, Kumari Dharamshila are the sisters of the informant. PW 3 did not identify the appellants. 7. PW 4 identified appellants No. 2 and 3. PW 5 also supports the factum of dacoity and that he participated in the Test Identification Parade where he identified the appellants No. 2 and 3. 8. PW 10 is a formal witness. PW 8, Bishwa Prakash Srivastava and PW 9, Prakash Chandra Shukla are the two Judicial Magistrates who conducted the Test Identification Parade of accused Dhanjee Kahar (acquitted) and appellants No. 2 and 3 wherein the witnesses, Surendra Kumar Tiwary i.e. the informant and Binod Upadhyay. PW 5 identified the two appellants. 9. The main thrust of the argument of the appellants is that it is unbelievable that the appellant No. 1 being co-villager would have committed dacoity in the house of the informant without taking pains to conceal his identity. In such circumstances, his identification appears to be highly doubtful. 10. PW 5 identified the two appellants. 9. The main thrust of the argument of the appellants is that it is unbelievable that the appellant No. 1 being co-villager would have committed dacoity in the house of the informant without taking pains to conceal his identity. In such circumstances, his identification appears to be highly doubtful. 10. As for the appellants No. 2 and 3, the submission is that even while they were arrested on 26.6.1992 they were put on Test Identification Parade only on 29.7.1992 i.e. more than a month later. Also, the admitted position is that in the meanwhile, the informant and other witnesses had been informed by the Investigating Officer about their arrest. The further submission is that three defence witnesses were examined on the point of enmity between the parties hence the appellants should be accorded benefit of doubt. 11. On going through the evidence of the witnesses, I am inclined to accept the submission raised on behalf of the appellants raised above. 12. Hence giving benefit of doubt to the appellants, the appeal is allowed and the order of conviction and sentence passed against the appellants on 6.8.1999 by the 1st Additional Sessions Judge, Rohtas at Sasaram in S.Tr. No. 211/94/26/95 is set aside. The appellants are discharged of the liability of their bail bonds. Appeal allowed.