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2020 DIGILAW 61 (JHR)

Baleshwar Sah v. State of Jharkhand

2020-01-13

RAJESH KUMAR

body2020
JUDGMENT : 1. Heard Mr. Aashish Kumar, learned counsel for the appellant and Ms. Amrita Kumari, learned A.P.P., appearing for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 20.03.2006 passed by Sri Rama Shankar Shukla, 4th Additional Sessions Judge, (F.T.C.), Dumka in Sessions Cases No. 248/2004 and 125/2004 whereby and whereunder the appellant has been sentenced to undergo R.I. for six years for the offence u/s 395 of the IPC and to pay a fine of Rs.500/-. In default of payment of fine, further imprisonment R.I. for one month. 3. On the fardbeyan (Ext.3) of the informant, namely, Md Harun Ansari (P.W.-3) recorded by S.I., N.L.Choudhary, Officer-in-Charge of Jarmundi P.S. on 19.02.2004, F.I.R. has been registered being Jarmundi P.S. Case No. 28/2004 under Sections 395 and 397 of the IPC against the appellant alongwith 12 unknown dacoits. As per F.I.R., the informant was sleeping in the night on 18/19.02.2004 in his house. At about 01:00 A.M. the brother-in-law of the informant, namely, Rafique Ansari raised hulla about dacoits and thereafter the informant saw four miscreants assaulting his brother-in-law and they were demanding money. On being raised hulla by the informant two miscreants wearing full pant and shirt aged about 30 years came to the informant and hit on his head by iron rod due to which he sustained injury. The informant and his brother-in-law have been hitted by iron rod and have sustained injury. On hulla, many villagers have gathered, and then the miscreants have hurled bombs which caused injuries to brother-in-law of the informant. Thereafter, several bombs have been hurled by the miscreants and thereafter they fled away. The description of the looted articles had not been described in the F.I.R. As per allegation, only one torch had been looted. On the basis of above F.I.R., investigation has been completed and allegation has been found true. 4. Thereafter, cognizance has been taken. Case has been committed to the court of sessions and ultimately, charge has been framed under Sections 395 and 397 of the IPC to which appellant pleaded not guilty and claimed to be tried. 5. On the basis of above F.I.R., investigation has been completed and allegation has been found true. 4. Thereafter, cognizance has been taken. Case has been committed to the court of sessions and ultimately, charge has been framed under Sections 395 and 397 of the IPC to which appellant pleaded not guilty and claimed to be tried. 5. The defense has been taken by the appellant that he has been falsely implicated in the present case as he had lodged a complaint case being P.C.R. Case No.421/2000 against one S.I., namely, Arun Singh and four other constables of Jarmundi P.S. The appellant is a businessman having a jewellery shop and due to filing of case, he has been falsely implicated in the present case and in fact he has been assaulted badly and to save police himself lodged a false case under Section 309 of the IPC being Jarmundi P.S. Case No.56/2004 against the appellant in which he has been acquitted. 6. To substantiate the claim, prosecution has examined altogether five witnesses. P.W-1, Jalil Ansari is a family member and has supported the allegation made in the F.I.R. He has deposed that he has sustained injury and 7-8 bombs have been exploded by the miscreants. P.W. 2, Md. Rafique Ansari (informant) has also deposed on the same line and in his cross-examination, he has deposed that they got treated at Hansdiha Clinic, Dumka. P.W. 4, Sri Gopal Pandey, who has conducted the T.I. Parade, is a witness to the identification of the appellant by P.W.1, P.W.2 and P.W.3. P.W. 5, Bhola Paswan, has partly investigated the case. In his cross-examination, he has deposed that neither he has visited the place of occurrence nor examined any witness of the village. 7. From perusal of the evidence of P.W.1, P.W.2 and P.W.3., it appears that all are co-villagers and in fact as per narratives, the villagers were assembled but none of them have been examined. In fact, the court below has not proved the ingredients of Section 397 of the IPC. No injury report has been brought on record and no firearm has been recovered. 8. From perusal of material available on record, it transpires that the factum of dacoity itself has not been proved. No evidence has been brought on record to prove the commission of dacoity. The I.O., who has lodged the F.I.R. has not been examined. No injury report has been brought on record and no firearm has been recovered. 8. From perusal of material available on record, it transpires that the factum of dacoity itself has not been proved. No evidence has been brought on record to prove the commission of dacoity. The I.O., who has lodged the F.I.R. has not been examined. Whether Investigating Officer has visited/seen the place of occurrence or not ?, has not been brought on record and no villagers have been examined. 9. Per contra, P.W.5 has admitted in cross-examination that P.C.R. Case No.421/2000 has been lodged against the S.I., namely, Arun Singh and four constables in Jarmundi Police Station. It has also been admitted that the appellant is a businessman having a jewellery shop in the locality. No recovery has been made. The only evidence has been brought on record that P.W.1, P.W.2 and P.W.3 have identified the appellant in T.I. Parade. 10. Thus, this Court finds that the prosecution has failed to prove the factum of dacoity itself, and as such, the conviction of the appellant for the offence under Section 395 is not sustainable. Consequently, the appellant is discharged from the charge under Section 395 for which he has been convicted. Accordingly, the judgment of conviction and order of sentence dated 20.03.2006 passed by Sri Rama Shankar Shukla, 4th Additional Sessions Judge, (F.T.C.), Dumka in Sessions Cases No. 248/2004 and 125/2004 is set aside. The appeal stands allowed. 11. Since the appellant is already on bail, he is discharged from the liability of his bail bonds.