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2013 DIGILAW 235 (PAT)

Md. Sabbir Alam v. State of Bihar

2013-02-20

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J.- Heard learned counsel appearing for the appellant and learned Additional Public Prosecutor for the State. 2. The above-stated sole appellant has been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and was also fined of Rs. 5000/- and in default of payment of fine, he was ordered to further undergo simple imprisonment for four months. 3. The aforesaid conviction and sentence order was passed by Sri Nageshwar Prasad, 1st Additional Sessions Judge. Araria on 17-01-2001 in Sessions Trial No. 112 of 1999/Trial No. 63 of 1999. 4. The brief fact, which lies to file this Cr. Appeal, is that PW 7 Mahendra Narayan Das gave his fardbeyan to Officer-in-charge (R.S. O.P.) Araria on 22-06-1998 at 6.15 a.m. in injured condition at Araria hospital to this effect that he alongwith his other family members was returning Araria by his Maruti Car bearing Registration No. WB-74-2405 and in the midnight of 22-061998, he reached near Harya Bara bridge, he noticed that the road was blocked by a tree. He stopped his car but in the meantime, 30-40 persons being armed with lethal weapons, encircled his car and started pelting stones. The aforesaid persons also made firing and exploded bombs. He further stated that the aforesaid persons committed loot and in course of loot, they snatched cash, wrist watch, gold chain, gold ring, gold ear ring and other ornaments from his wife and sister-in-law. The aforesaid dacoits also snatched other belongings of the occupants of the car. In the meantime, one Tata 407 also came there. The aforesaid dacoits committed loot from the occupants of the aforesaid Tata 407. In the meantime, he as well as his other associates, anyhow, eluded from the clutches of the dacoits and came in a village, where they informed the villagers and after that, villagers came on the place of occurrence and removed the tree from the road. PW 7 further stated that when he tried to see the face of dacoits, one miscreant put dagger on him. He further stated that after committing the loot, dacoits fled away from the place of occurrence. On the basis of aforesaid fardbeyan of PW 7. PW 7 further stated that when he tried to see the face of dacoits, one miscreant put dagger on him. He further stated that after committing the loot, dacoits fled away from the place of occurrence. On the basis of aforesaid fardbeyan of PW 7. Araria P.S. Case No. 233 of 1998 under Section 395 of the Indian Penal Code was registered and accordingly, formal FIR under the aforesaid sections was drawn up against 30-40 unknown persons. 5. The police investigated the case and after completion of the investigation, police submitted charge-sheet against the appellant and some other accused persons, Cognizance of the offence was taken and the case was committed to the Court of Sessions. 6. The appellant was put on trial and, accordingly, he was charged for the offence punishable under Sections 395 and 412 of the Indian Penal Code. Charges were read over and explained to him to which, he pleaded not guilty and claimed to be tried. 7. In course of trial, prosecution examined, altogether 14 witnesses and also got exhibited some documents including the seizure list and fardbeyan of the informant PW 7. The statement of the appellant was recorded under Section 313 of the Cr PC in which, he reiterated his innocence. No evidence was adduced by the appellant in support of his defence but it appears that defence of the appellant was total denial of the prosecution story. 8. The learned trial Court having relied upon the testimony of PW 7,convicted the appellant for the offence under Section 395 of the Indian Penal Code whereas: appellant was acquitted of the charge framed against him under Section 412 of the Indian Penal Code. 9. In course of trial, the investigating officer was examined as PW 13. This witness stated that in course of investigation, he raided the house of appellant and recovered one gold ring and two red colour bangles from the house of appellant in presence of PW 4 Md. Islamuddin and PW 5 Md. Naeem Akhtar, Admittedly. PWs 4 & 5 have been declared hostile and PW 4 has stated that nothing had been recovered in his presence and he had put his signature on seizure list. Similarly, PW 5 has stated that police had recovered nothing in his presence. Islamuddin and PW 5 Md. Naeem Akhtar, Admittedly. PWs 4 & 5 have been declared hostile and PW 4 has stated that nothing had been recovered in his presence and he had put his signature on seizure list. Similarly, PW 5 has stated that police had recovered nothing in his presence. Moreover, the learned trial Court disbelieved the story of recovery of gold ring and bangles from the house of the appellant and accordingly, acquitted the appellant of the charge framed under Section 412 of the Indian Penal Code. 10. PWs 1, 2 & 3 stated that they knew nothing about the alleged occurrence nor had made any statement before the police. PW 6 admitted this fact that he had heard about the alleged dacoity but had not made statement before the police. PW 8 Mamta Devi, wife of PW 7. and PW 9 Minu Kumari Karn. sister-in-law of PW 7, have supported the factum of dacoity but they did not identify the appellant nor disclosed his name in their deposition. Although PW 8 Mamta Devi stated that she had identified gold ring and two bangles in course of Test Identification Parade of the articles before the Magistrate but as I have already discussed that the learned trial Court doubted the factum of recovery from the house of the appellant. So, even if PW 8 Mamta Devi claimed to have identified the articles in test identification parade, then also, it does not make any difference. 11. PW 10 Abdul Wahab stated that he came to know about the alleged dacoity from injured Ajay Jha and others and admittedly, this witness had not seen the dacoity. PW 11 & PW 12 were also the victim of the aforesaid dacoity and they supported the factum of dacoity but not stated about the participation of the appellant in the alleged dacoity. PW 4 is a doctor who had examined the injuries of injured persons who sustained injury in the alleged dacoity. ] 2. PW]2 Mahendra Narayan Das is informant of this case. He supported the factum of dacoity and claimed to have identified the appellant in dock. This witness stated that the appellant was very active at the time of alleged dacoity. ] 2. PW]2 Mahendra Narayan Das is informant of this case. He supported the factum of dacoity and claimed to have identified the appellant in dock. This witness stated that the appellant was very active at the time of alleged dacoity. Furthermore, this witness stated that though he had participated in test identification parade of the articles but he did not go to take part in test identification parade of accused because he was engaged in treatment of his wife. This witness further stated that at the time of alleged occurrence, there was a dark night and furthermore, he stated at paragraph-3 of his cross-examination that before recording his statement in course of trial, he had visited the Court one or two times. Therefore, it is apparent from the aforesaid discussions that the conviction of the appellant has been based by the learned trial Court only on the basis of identification of the appellant by PW 7 in course of trial. 13. No doubt, PW 7 claimed to have identified the appellant in course of trial but admittedly, the aforesaid identification was done by PW 7 after more than one year of the alleged occurrence and furthermore, the identification of the appellant by PW 7 is not corroborated by any other witness. Furthemore, the PW 7 has himself admitted in his cross-examination that before recording his deposition in course of trial, he had visited the Court and, therefore, this possibility cannot be ruled out that in course of the aforesaid visit, the appellant was shown to him. Therefore, I am of the opinion that only on the basis of single identification that is too in 'course of trial, it is unsafe to convict the appellant. 14. On the basis of aforesaid discussions. I am of the opinion that appellant is entitled to get the benefit of doubt and, accordingly. this Criminal Appeal is allowed and impugned judgment of conviction and sentence order dated 17.1.2001 are hereby, set aside. 15. The appellant is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.