(Against the judgment of conviction and the order of sentence, both dated v. For the Resp.-State

--------- : Mr. Prakash Kr. Sahay, Advocate Mr. Navneet Sahay, Advocate : Mr. Sanjay Kr. Srivastava, APP -------- 11/ 22.03.2023 Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and the order of sentence, both dated 20.09.2003, passed by the learned 3rd Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 204 of 1998, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for six years and fine of Rs.1,000/- under Section 395 of the Indian Penal Code and in default of payment of fine, further imprisonment for three months.

3. The prosecution case in brief is that on 10.03.1997 at 10 P.M., the appellant and other four accused persons came to the house of the informant and looted Rs. 5000/-, and some household articles such as silver ornaments, utensils, one radio and titan wrist watch and fled away.

4. Learned counsel for the appellant submits that the impugned judgment is bad in law as well as on facts. He further submits that the learned trial court had based its judgment on conjecture and surmises. The learned trial court has not considered the evidence brought on record by the prosecution in the right perspective and has arrived at an erroneous finding. Admittedly, there was no light at the time of occurrence and there is no independent witness of the case. There was no hue and cry after the occurrence. The appellant is of the same village and due to enmity, the appellant has been falsely implicated in the case. The informant has given contradictory statement and as such he cannot be relied upon. The learned trial court ought not to have convicted the appellant on the basis of the evidence on record. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside. 2

5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the appellant; as such, if the sentence is modified, then the same should be modified in lieu of fine.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that the miscreants on point of pistol took Rs.5,000/-, silver ornaments and utensils. It further transpires from record that the two miscreants were identified by voice as Bishwanath Mahto (the appellant herein) and Bindeshwari Mahto; however, he has been acquitted in S.T. Case No. 204A/1998 on 09.02.2007. Though it has been alleged that the dacoits also looted the house of Shiv Paswan P.W.5 & Vinay Kumar Mehta, but he has not been examined in this case as a witness. It further transpires that the appellant has been identified by voice and convicted, whereas; two other miscreants namely Girja Kumar Mahto and Arvind Mahto along with Bindeshwari Mahto, all have also been identified by the voice but have been acquitted on 09.02.2007 in S.T. Case No. 204A/1998.

7. Altogether 7 witnesses have been examined in this case. P.W.1-Dineshwar Mahto at para-5 of his evidence has stated that he did not recognize any dacoits and also refused to identify appellant Bishwanath Mahto. At para-7 this witness has stated that the son of the informant namely Birju Mahto (P.W.3) has gone in jail for rape of niece of appellant Bishwanath Mahto. This statement clearly goes to show the personal enmity between the parties. P.W.2-Kiran Devi, who is the wife of P.W.1 at para-2 has stated that she has not identified any dacoits at the time of occurrence. P.W.3-Birju Mahto is informant of the case. At Para-2, this witness has stated that he has identified the appellant as well as Bindeshwari Mahto by voice, but as aforesaid, Bindeshwari Mahto has been acquitted with other miscreants in S.T. Case No. 204(A)/ 1998 by the court of Additional Sessions Judge-FTC No. 1, Palamu. At para -7 this witness has stated that he identified the miscreants in torch light. Here it is pertinent to mention here that the claim of P.W 3 that he has identified the appellant by voice and in torch light but for the reason best known to prosecution no torch was exhibit before trial court. As such, very identification of appellant becomes doubtful. From record it also transpires that in the FIR, the informant has not stated regarding identification by face in torch light and there was allegation that this accused was identified by voice only. But in deposition, P.W. 3/informant has stated that he has identified the accused by voice 3 identification as well as by face identification light. Hence, improvisation of the case cannot be ruled out. P.W.4 Anil Mahto- He is son of the informant (P.W-3). At para-4 this witness has identified the appellant and Bindeshwari Mahto, however, as stated herein above Bindeshwari Mahto has been acquitted. At para-9 this witness has stated that niece of appellant Bishwanath Mahto was blind and she was raped by son of the informant (P.W.-3) and because of that the son of informant was in jail for about 10 months. Further, P.W.5- Sheo Manjhi has stated that his house was also looted by dacoits. At Para-4 he stated that he did not identify any of the dacoits. At Para-5 this witness states that he knows the appellant Bishwanath Mahto who has not participated in dacoity in my house. P.W.7- Mukhtar Singh is I.O. of the case. At Para-11 this witness has stated that the informant (P.W.3) has not stated that he identified Bishwanath Mahto in torch light. At Para-14, this witness states that no T.I.P. has been held for any of the dacoits.

8. By going through the aforesaid depositions of PWs and facts of the case it is clear that the allegation of prosecution is that five dacoits have participated in dacoity in the house of the P.W.3 and P.W.5 but out of them 3 dacoits have been acquitted namely Bindeshwari Mahto, Girja Kumar Mahto, Arvind Mahto in S.T. Case NO. 204(A)/1998 on 09.02.2007 in a separate trial. The conviction of the appellant under Section 395 appears to be bad in law as it emerges from the depositions of the PWs referred to in the preceding paragraph and the judgment impugned is liable to be set aside. Moreover, P.W. 3 who is informant in the instant case and the same P.W.3 has been examined in S.T. Case No. 204A/1998 has been declared hostile and he has not supported the prosecution case. Since it is admitted fact that there is enmity between Bishwanath Mahto (appellant) whose niece has been raped by the son of informant, so false evidence given by the P.W. 3 cannot be ruled out. As stated herein above, P.W 3 in his deposition has stated that he has identified the appellant by voice and in torch light but for the reason best known to prosecution no torch was exhibit in trial court. As such, very identification of appellant becomes doubtful. Reference in this regard may be made to a decision in the case of Mangal Singh and others versus State of Bihar and others reported in 1990 0 Supreme (Pat) 155 at para 30 which is reproduced herein below:- “30. .................... The means of identification i.e., torch has not been produced either in the court or during the course of investigation before I.O. as stated by him. Therefore, the factum of identification also becomes doubtful. In this connection reference may be 4 made to a decision in the case of Amirchand Ahir and others vs. State of Bihar, 1977 B.B.C.J. 400, where it has been held that non-production of the only means of identification, namely, the torch in question in the present case, makes the prosecution case all the more doubtful. The Hon’ble Supreme court in the case of State of Uttar Pradesh vs. Hari Prasad and others AIR 1974 SC 1740 has observed that where the occurrence had taken place in a dark night and witnesses claimed to have identified the accused in the light of a lantern, the existence whereof had been found to be doubtful, the accused was entitled to the benefit of doubt. In the instant case, the means of identification has not been produced in the court or during the course of investigation. Therefore, on this ground also, in our opinion, the appellants are entitled to the benefit of doubt."

9. Having regards to the aforesaid discussion, this application requires interference. Consequently, the instant criminal appeal stands allowed and the judgment of conviction and the order of sentence, both dated 20.09.2003, passed by the learned 3rd Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 204 of 1998 is quashed and set aside.

11. The appellant shall be discharged from the liability of his bail bond. Let a copy of this order and the lower court record be sent to the court concerned forthwith. Pramanik/ (Deepak Roshan, J.)