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2013 DIGILAW 374 (PAT)

Sundeshwar Lal Deo v. State of Bihar

2013-03-18

HEMANT KUMAR SRIVASTAVA

body2013
HEMANT KUMAR SRIVASTAVA, J.:–Heard learned counsel for the appellant as well as learned Additional Public Prosecutor for the state and perused the record. 2. The sole appellant namely, Sundeshwar Lal Deo was convicted and sentenced by IInd Assistant Sessions Judge, Darbhanga in Sessions Trial No. 220 of 1991 passing the impugned judgment of conviction dated 09-05-2001 and sentence order dated 10-05-2001 for the offence punishable under Section-395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. In brief, the prosecution case is that, P.W. 7 namely, Ramashraya Rai gave his fardbeyan to S.I. of Baheri Police Station on 26-02-2991 at about 11.30 hours to this effect that while he alongwith his wife namely, Meena Devi were sleeping in his house, some dacoits entered his house and committed dacoity in his house. The aforesaid dacoits committed dacoity in the house of several other persons also and in course of dacoity; P.W. 5 Satyanarayan Yadav sustained fire-arm injury. 4. On the basis of aforesaid fardbeyan, Baheri P.S. Case No. 13 of 1991 was registered and formal FIR for the offence under Section-395 of the Indian Penal Code was drawn up against unknown dacoits. 5. The matter was investigated by the police and after completion of investigation; charge sheet was submitted against the appellant and several other persons. 6. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 7. The appellant alongwith other accused were charged for the offence punishable under Section-395 of the Indian Penal Code whereas; one co-accused, namely, Brahmdeo Lal Deo was separately charged for the offence punishable for the offence under Section-412 of the Indian Penal Code. 8. In course of trial, altogether, 12 prosecution witnesses were examined and prosecution also got exhibited some documents. The statements of the appellant and other accused were recorded under Section-313 of the Cr. P.C. in which, they pleaded their innocence. No evidence was adduced by the appellant and other accused in support of their defence but from perusal of the statements recorded under Section-313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, it appears that the appellant and other accused denied their participation in the alleged crime. 9. The learned trial court, having relied upon testimonies of P.Ws. 2 & 5 coupled with Ext. 9. The learned trial court, having relied upon testimonies of P.Ws. 2 & 5 coupled with Ext. 5/1, convicted the appellant in the manner, as stated above. 10. It is not out of place to mention here that co-accused who had faced trial alongwith the appellant, were acquitted by learned trial court by the impugned judgment itself. 11. Learned counsel appearing for the appellant assailed the impugned judgment of conviction submitting that P.W. 2 admitted at paragraph-9 of his cross-examination that the appellant used to visit his village and the aforesaid admission of P.W. 2 indicates that the appellant was well-known to P.W. 2 prior to the alleged Test Identification Parade and, therefore, Test Identification Parade of appellant becomes doubtful. He further submitted that so far as P.W. 5 is concerned, admittedly, he is co-villager of the P.W. 2 and he admitted in his cross-examination that he had not identified the appellant at the time of alleged dacoity, rather the name of the appellant was disclosed by his family members. He further submitted that except the aforesaid two prosecution witnesses, there is nothing on the record to show the involvement of the appellant in the alleged dacoity and, therefore, the learned trial court committed error in convicting and sentencing the appellant. 12. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that the appellant was identified by two witnesses and, therefore, learned trial court rightly convicted and sentenced the appellant. 13. As I have already stated that altogether 12 witnesses were examined on behalf of the prosecution and except P.W. 2 and P.W. 5, none of the prosecution witnesses stated about the involvement of the appellant in the alleged crime. No doubt, P.W. 2 and P.W. 5 stated that they had identified the appellant in Test Identification Parade but P.W. 2 admitted in his cross-examination that the appellant used to visit his house and, therefore, the aforesaid admission clearly indicates this fact that P.W. 2 had occasion to see the appellant prior to the alleged dacoity. No doubt, P.W. 2 and P.W. 5 stated that they had identified the appellant in Test Identification Parade but P.W. 2 admitted in his cross-examination that the appellant used to visit his house and, therefore, the aforesaid admission clearly indicates this fact that P.W. 2 had occasion to see the appellant prior to the alleged dacoity. Furthermore, P.W. 2 admitted at paragraph-12 of his cross-examination that the informant of this case i.e. P.W. 7 is his son-in-law, so, if the P.W. 2 had identified the appellant at the time of alleged dacoity, he would have certainly disclosed the name of the appellant before P.W. 7 at the time of recording his fardbeyan but as I have already stated that the formal FIR of this case was drawn up against unknown dacoits and P.W. 7 had not disclosed the name of any dacoits in his fardbeyan. 14. P.W. 5 Satyanarayan Rai stated that he identified the appellant in Test Identification Parade and admitted that he had not identified the appellant at the time of dacoity rather his family members had identified the appellant at the time of dacoity. Furthermore, it is an admitted position that P.W. 5 is a co-villager of P.W. 2 who has admitted in his cross-examination that the appellant used to visit his village, so, in view of the aforesaid statements, it is apparent that P.W. 5 had also occasion to see the appellant prior to the alleged dacoity and in my view, no reliance can safely be placed on the testimonies of P.W. 2 & P.W. 5 and the appellant is entitled to get the benefit of doubts. 15. On the basis of aforesaid discussions, this Criminal Appeal is allowed and the judgment of conviction and sentence order is hereby set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds.