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2014 DIGILAW 1045 (PAT)

Rudal Yadava v. State of Bihar

2014-10-09

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard the learned counsel for the petitioner and the State. 2. The appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged in the first information report by the informant, Mahanth Prasad, P.W. 7, is that on 22.03.1979 at about 11.30 p.m. while he got up in the night to meet call of nature, he saw that about 20-25 persons were coming to his house and, then, he entered into the verandah and, then, two dacoits surrounded him in the verandah and one of them pointed gun and asked that who is the owner, then, he pointed to Bhagelu Prasad and addressed himself as the servant. In the meantime, the dacoits started broking the door and some entered into the verandah. On hulla (alarm) several witnesses as Bhola Thakur, Umesh Sah and several others collected and at the time when dacoits came out of the house he identified Lal Bahadur Rao and Rudal Yadav in the light of torch and his brother, Ramjee Prasad, P.W. 3, also identified Rudal Yadav at the time of dacoity and Bhagelu Prasad, P.W. 4, also identified and has given the description of property, which has been taken away by the dacoits. It is, further, alleged that the dacoits decamped with the looted articles. 4. On the fardbeyan, the first information report lodged and the police after investigation submitted the charge sheet on which cognizance taken, case committed to the Court of sessions and after commitment charge framed under Section 395 of the Penal Code against Rudal Yadav and Suraj Rao. 5. During the trial, eight witnesses were examined on behalf of the prosecution out of which P.W. 1 is Suraj Rao, P.W. 2 is Bhola Thakur, P.W. 3 is Ramjee Prasad, P.W. 4 is Bhola Sah, P.W. 5 is Ganesh Prasad (tender), P.W. 6 is Gopal Prasad (formal), P.W. 7 is Mahanth Prasad, the informant, and P.W. 8 is Sri Ram Prabhu Pandey. Judicial Magistrate, 1st Class, Bettiah, who conducted the test identification parade. Two witnesses have been examined as D.W. 1, Sabha Singh, and D.W. 2, Roja Mia. The occurrence took place on 21.03.1979 at about 11.30 p.m. whereas the first information report lodged on 22.03.1979 at about 12.15 a.m. 6. Judicial Magistrate, 1st Class, Bettiah, who conducted the test identification parade. Two witnesses have been examined as D.W. 1, Sabha Singh, and D.W. 2, Roja Mia. The occurrence took place on 21.03.1979 at about 11.30 p.m. whereas the first information report lodged on 22.03.1979 at about 12.15 a.m. 6. The trial Court, after considering the evidence of witnesses convicted the appellant and sentenced, as mentioned above. 7. The learned counsel for the appellant, however, contends that three witnesses have identified the appellant, who are family members of same family whereas the appellant is co-villager and it is not expected that co-villager will go bare face to be identified. It has, further, been contended that the informant has stated that at the time of occurrence, on his hulla (alarm), several persons of the village collected and it is also stated that the some co-villagers set on fire the heap of straw and when the appellant came out of the house he was identified, but, except the informant and his family members of the villagers have come forward to identify the appellant while fleeing away. It has, further, been contended that only material against the appellant in deposition of the witnesses is that they have identified, but, no act of commission has been mentioned that at the time of identification what role was being played by the appellant and has been asserted that the appellant has falsely been implicated for prior enmity and contended that the order of conviction and sentence recorded by the trial Court is not sustainable. It has, further, been submitted that the occurrence is of the year 1979 and about 35 years have already elapsed and appellant has remained in jail for eight months having no criminal antecedent. 8. However, from the perusal of the record eight witnesses have been appeared to be examined, but, the investigating officer has not been examined in the case, hence, the objective evidence of dacoity has not been brought on record. However, out of eight witnesses, examined, P.Ws. 1 and 2 have not stated about the implication of this appellant, P.W. 5 is tender and P.W. 6 is formal witnesses. P.W. 8 is the Magistrate, who conducted the test identification parade. However, test identification parade conducted by the Magistrate is not concerned with this appellant, hence, only three witnesses are relevant against this appellant. 1 and 2 have not stated about the implication of this appellant, P.W. 5 is tender and P.W. 6 is formal witnesses. P.W. 8 is the Magistrate, who conducted the test identification parade. However, test identification parade conducted by the Magistrate is not concerned with this appellant, hence, only three witnesses are relevant against this appellant. Now reverting back to the evidence regarding the implication, P.W. 3 in his examination-in-chief has stated that on the sound of hulla (alarm) he got up and the dacoits broke open the main gate and taken away the tools and utensils. However, he has stated that he identified two dacoits, one was Lal Bahadur Yadav and other was Rudal Yadav. He has stated that he has identified the dacoits in the light of torch being lighted by the dacoits. However, in cross examination he has stated that Rudal Yadav was taking out clothes. He has, further, stated that Rudal Yadav was armed with D.B.B.L. gun though he has stated that he has not stated in the first information report that Rudal Yadav was armed with D.B.B.L. gun. However, having regard to the evidence of this witness, so far the means of identification is concerned, has been shown to be the light of torch lit by the dacoits. However, the identification in the light of torch lit by dacoits apparently appears to be doubtful and, further, there is contradiction that this witness stated that he was taking out the clothes and same time also stated that this appellant was armed with gun. 9. P.W. 4 has stated that he identified Lal Bahadur Yadav and Rudal Yadav amongst the dacoits in the examination-in-chief. He has also stated that he identified them in the light of torch lit by a dacoit. He has, further, in cross examination, has stated that Rudal Yadav was bare handed not armed with any weapon. However, P.W. 4 has not stated that at the time of identification what act of omission and commission was being done by this appellant and, further, there is a contradiction of evidence of P.W. 4 and P.W. 3 whereas P.W. 3 has stated that Rudal Yadav was armed with D.B.B.L. gun whereas this witness stated that Rudal was bare handed. However, P.W. 4 has not stated that at the time of identification what act of omission and commission was being done by this appellant and, further, there is a contradiction of evidence of P.W. 4 and P.W. 3 whereas P.W. 3 has stated that Rudal Yadav was armed with D.B.B.L. gun whereas this witness stated that Rudal was bare handed. More over, there is no mention that what act was being done by Rudal Yadav at the time when he identified and, more over, the infirmity regarding the means of identification with the appellant was identified in the light of torch lit by dacoits, itself, creates a shadow of doubt. 10. P.W. 7 is the informant. He also has claimed to have identified the appellant. However, in his evidence he stated that on his hulla (alarm) the villagers have come and he along with the villagers set on fire the heap of straw and that given sufficient light and in the said light he identified Rudal Yadav and Lal Bahadur Yadav. However, he also has not stated that what act of omission and commission has been committed by the appellant and only stated that when he lit the heap of straw, then, the accused persons came out of the house, but, act of omission and commission has not been stated against the appellant. He has stated in paragraph 14 that Rudal Yadav was neighbour and his house is only at a distance of 4-5 bigha. However, the witness claimed to have identified and has stated that he did not disclosed about the fact of identification of the dacoit to any one though he claimed that the villagers chased the dacoits along with him, but, has not disclosed the name of dacoits. 11. Hence, having regard to the fact that since the investigating officer has not been examined in the case and none of the witnesses has come forward to support the dacoity and only three witnesses, who have been examined and supported are the members of the same family and their evidence regarding the means of identification is apparently torch light lit by the dacoits doubt the identification and, further, the identified in the light of torch of dacoit without any specific act mentioned at the time of identification creates doubt in the identification. 12. 12. Hence, having regard to the facts and circumstances of the case, I find and hold that the prosecution has not been able to prove the charge beyond reasonable doubt and the identification has not also established, hence, the appellant is entitled for reasonable benefit of doubt. 13. In the result, this appeal is allowed.