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2013 DIGILAW 1435 (PAT)

Kamlesh Singh v. State of Bihar

2013-12-11

ANJANA PRAKASH

body2013
JUDGMENT Smt. Anjana Prakash, J. - The appellant has been convicted for the offence under Section 395, Indian Penal Code and sentenced to rigorous imprisonment for five years passed by the 1st Additional Sessions Judge, Saran in Sessions Trial No. 222 of 1999 by a judgment and order of conviction dated 30.6.2001. 2. The case of the Informant Daroga Singh, PW 6, is that a Dacoity was committed in his house all 12.12.1996 in which course several of his household articles were looted away. In this transaction. PW 4 Manju Devi who happened to be daughter-in-law and Rekha Kumari, PW 5, are said to have identified the present appellant who got removed blanket from her person. 3. During Trial, the prosecution examined seven witnesses. PW 1 Thakur Singh is a hear-say witness who supported the prosecution story. PW 2 Mukti Nath Singh is also hear-say witness who supported the factum of occurrence. PW 3 Santosh Kumar is another hear-say witness and he is son of the Informant. 4. PW 4 Smt. Manju Devi is an eyewitness and cousin daughter of the Informant supported the prosecution story as also identified the appellant. PW 5 Rekha Kumari is another eye-witness and daughter-in-law of PW 2 who also identified the appellant. PW 6 Daroga Singh is the Informant who supported the factum of dacoity. PW 7 is the Investigating Officer. 5. The defence version is that the accused was co-sharer of the Informant and he was not being given of the shares of trees which had caused a quarrel between the two. In this background of enmity the story of identification does not appear probable since the appellant has not challenged the factum of dacoity but only that of the identification. 6. This Court thus would think it wise to refer to the statement with two identifying witnesses. PW 4 Manju Devi stated that at 11.00 P.M. when she woke up on some sounds. he saw some dacoits in the courtyard. The dacoits were lighting the torch and committed loot. A number of household articles were looted away in this transaction. In paragraph-8 she stated that the family of the appellant was separate from her in-laws meaning thereby that they were all agnates, even though, she stated that she was pardanashin lady, the fact that she identified appellant even while the others, did not do so which evidently appears improbable. A number of household articles were looted away in this transaction. In paragraph-8 she stated that the family of the appellant was separate from her in-laws meaning thereby that they were all agnates, even though, she stated that she was pardanashin lady, the fact that she identified appellant even while the others, did not do so which evidently appears improbable. It was suggested to her that there was animosity between of father-in-law and the appellant on account of partition. 7. PW 5 Rekha Kumari, the other identifying witness has supported the factum of the occurrence. She stated in paragraph 2 itself that the appellant was a close relative. In her cross-examination, also it was indicated that the appellant and the Informant belonged to the same family. 8. Considering the aforesaid evidence which is suspicious on the point of identification, I would be inclined to allow the appeal. The order of conviction and sentence dated 30.6.2001 passed against the appellant in Sessions Trial No. 222 of 1999 by the 1st Additional Sessions Judge, Saran is, hereby, set aside. 9. The appellant is discharged from the liability of his bail bond. Appeal allowed.