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2013 DIGILAW 32 (PAT)

Bhim Yadav @ Bhimal Yadav v. State Of Bihar

2013-01-08

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT 1. This criminal appeal has been preferred by the appellant, Bhim Yadav @ Bhimal Yadav against the judgment of conviction dated 15.01.2001 and sentence order dated 16.01.2001 passed by 3rd Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No. 328 of 1997 by which and whereunder he convicted the appellant under Section 395 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and also imposed fine of rupees ten thousand and furthermore, in default of payment of fine, the appellant was directed to undergo simple imprisonment for one year more. The appellant was acquitted under Section 412 of the Indian Penal Code. 2. P.W.3., Madan Yadav gave his Ferdbeyan on 18.07.1996 before the A.S.I., Yogendra Yadav of Sahodara Police Station to this effect that in the night of 17.07.1996 he was sleeping in his house and at about 11:30 P.M. he heard the sound of firing and someone knocked his door upon which he opened the door out of fear and after that three to four persons having deadly weapons entered into his house and committed dacoity and after that the aforesaid persons entered the room in which his son was sleeping and the aforesaid persons assaulted him and committed loot. The aforesaid persons took away the belongings of the house. He claimed to have identified the aforesaid culprits by their faces. 3. On the basis of above stated Ferdbeyan, Sahodara (Gaunaha) P.S. Case No. 45 of 1996 under Section 395 of the Indian Penal Code was registered against unknown and formal first information report was prepared. The matter was investigated by the police and after investigation, police submitted charge sheet against the appellant and some other persons. The cognizance of the offence was taken and the case was committed to the court of Sessions in usual way. 4. The appellant was put on trial and he was charged for the offences punishable under Sections 395 and 412 of the Indian Penal Code. The charges were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. Three other accused persons were also charged for the above stated offences along with the appellant but in course of trial, the above stated co-accused persons absconded and, accordingly, the trial of the appellant was separated from the trial of the above stated co-accused persons. Three other accused persons were also charged for the above stated offences along with the appellant but in course of trial, the above stated co-accused persons absconded and, accordingly, the trial of the appellant was separated from the trial of the above stated co-accused persons. 5. In course of trial, prosecution examined, altogether, ten witnesses and got exhibited search-cum-seizure list, signature of the informant on Ferdbeyan and signature of witnesses on the seizure list. 6. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he denied the prosecution story. No evidence was adduced by the appellant in support of his defence. The learned trial court having considered the evidences available on the record convicted the appellant in the manner as stated above. 7. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that except prosecution witness no. 3, none of the prosecution witnesses claimed to have identified the appellant committing the alleged crime and so far as prosecution witness no. 3 is concerned, he has, specifically, admitted in his cross-examination that appellant was well known to him prior to the alleged occurrence and the appellant used to visit his shop from before the alleged occurrence and, therefore, the identification of the appellant in Test Identification Parade becomes meaningless because had the appellant participated in the alleged dacoity, the prosecution witness no. 3 would have certainly disclosed the name of the appellant at the time of recording his Ferdbeyan. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that in course of investigation, looted articles were recovered from the house of the appellant and the aforesaid looted articles were put on Test Identification Parade in which witnesses identified the looted articles and apart from this, prosecution witness no. 3 has identified the appellant in Test Identification Parade. 9. The prosecution has examined, altogether, ten witnesses as stated above out of whom P.W.1., Md. Haroon is said to be witness of seizure list but this witness has clearly stated that nothing had been recovered in his presence and the police had taken his signature on plain paper. P.W.2., P.W.4, P.W.5, P.W.6 and P.W.7 have supported the factum of dacoity but they could not identify the culprits. 10. P.W.3. Haroon is said to be witness of seizure list but this witness has clearly stated that nothing had been recovered in his presence and the police had taken his signature on plain paper. P.W.2., P.W.4, P.W.5, P.W.6 and P.W.7 have supported the factum of dacoity but they could not identify the culprits. 10. P.W.3. also supported the factum of dacoity and stated that after the alleged dacoity he lodged the present case. He further stated that looted articles had not been recovered in his presence and he had identified the looted articles at police station. He further stated that he participated in Test Identification Parade and identified the appellant and two others but at para 5 of his cross-examination, he, frankly, admitted that the appellant was well known to him from before the alleged occurrence and the appellant used to visit his shop. This witness further admitted at para 6 of his cross-examination that before holding of Test Identification Parade of the articles, the police called him at police station and the seized articles were not shown to him and after that the Test Identification Parade of the articles was held. 11. P.W.9, Satish Chandra Rai is a Judicial Magistrate and he stated that P.W.3 had identified the appellant in his presence. 12. P.W.10 is A.S.I., who recorded the Ferdbeyan of P.W.3 and this witness proved the Ferdbeyan of P.W.3. This witness conducted investigation partly and before completion of the investigation, he handed over charge of investigation to another police official. 13. After scrutinizing the evidences available on the record, it is explicit clear that not a single prosecution witness, except P.W.3, claimed to have identified the appellant committing the alleged crime. Although, P.W.3 claimed to have identified the appellant in Test Identification Parade but admittedly, P.W.3 had not disclosed the name of the appellant as one of the dacoits at the time of recording his Ferdbeyan particularly, in the circumstance when the appellant is well known to him from before the alleged occurrence and, therefore, I do agree with the submission of learned counsel for the appellant that had the appellant participated in the alleged crime, the P.W.3 would have certainly disclosed the name of the appellant at the time of recording his Ferdbeyan. 14. 14. On the basis of aforesaid discussions, I am of the opinion that prosecution has miserably failed to prove his case beyond all shadow of reasonable doubts and the learned trial court has committed error in convicting and sentencing the appellant. 15. On the basis of aforesaid discussions, this criminal appeal is allowed and, accordingly, judgment of conviction dated 15.01.2001 and sentence order dated 16.01.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liability of bail bonds. Appeal allowed.