Badri Singh, son of Meghu Singh, resident of village Mahaudohar, P.S. Chauparan Out post v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No.1395 of 2005 --------- Badri Singh, son of Meghu Singh, resident of village Mahaudohar, P.S. Chauparan Out post Chandwara, District-Hazaribagh ..… Appellant State of Jharkhand Versus ….. Respondent ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State --------- : Mr. Salona Mittal, Amicus Curiae : Mr. Prabir Kr. Chatterjee, Spl.P.P. --------- JUDGMENT Reserved on 18.06.2024 Pronounced on 06.12.2024 This Criminal Appeal has been filed on behalf of the appellant challenging the Judgment of conviction and sentence dated 22.10.2005, passed in S.T. No. 324 of 2003 by Shri Rajesh Kumar Pandey, the Additional Sessions Judge, F.T.C.-VI, Hazaribagh, whereby the appellant has been held guilty for the offence under Section 216-A I.P.C. and was sentenced to undergo Rigorous Imprisonment for Four (04) years and to pay the fine of Rs.1,000/- and in case of default in payment of fine, the appellant has been further directed to undergo simple imprisonment for Three months. 2. On 05.11.2002 at 21 hours of the day at police station Chouparan, the fard-bayan was lodged by the Informant, namely Arjun Prasad informing that on the auspicious festival of Dipawali, dated 04.11.2002, at about 8 p.m. in the night, while the informant was sitting along with other villagers, namely Mahadeo Yadav, 1 Basudeo Yadav, Laxman Yadav, Damodar Paswan, Ishwar Rabidas, Sahdeo Yadav, Bansi Yadav, Latoo Yadav, Ashok Paswan, in the Verandah of Primary School, Brinda, who were negotiating about road under construction there. By that time, Five persons, who were said to be party men, armed with pistol, gun etc. arrived there and confined them in a room and thereafter, searched each of them one by one, took money, watch and thereafter name of Birju Yadav, Mahadeo Yadav and that of the Informant were called and their hands were tied and then they were taken to the village. Then the dacoits entered into the house of Birju Yadav, Damodar Yadav, Gurudayal Mahto and the valuables, as mentioned in the First Information Report, were looted and then they entered into the house of Sobran Mahto, from where cash ornaments, valuable papers and Rajdoot Motorcycle bearing registration no. JH 12 A 2381 were also looted on the point of pistol and on which they fled away. He further disclosed that Badri Singh, i.e. the appellant was taking round of the village with new men, who committed dacoity at 6 places. On being pressurized, Badri Singh told about Mahendra Singh and Surendra Singh, who came to village Brinda, took meals, stayed for two to three days and also confessed about loot in the house of Nakul Kumar Mahto of Piprahi and his Motor Cycle No. BR 4 A 0857. The Informant further informed to have seen the miscreants in the light of Bulldozer. 3. Heard Mr. Salona Mittal, learned Amicus Curiae and Mr. Prabir Kumar Chatterjee, learned Sp.P.P. for the State. 2 4. It is submitted that the judgment of conviction and sentence are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Trial Court has passed this judgment without looking into the evidence. It is submitted that the learned Trial Court has passed the judgment on the basis of surmises and conjectures. It is submitted that the learned Trial Court has failed to consider the delay in sending the F.I.R. to the Court below. It is submitted that the learned Trial Court has failed to consider the suppression of the very First Information Report along with the Station Diary entries. It is submitted that the intimation (Ext.2) is not the First Information Report. It is submitted that the learned Trial Court has failed to consider the contradictory deposition of witnesses that the accused Badri Singh, i.e. the Appellant was among the dacoits, whereas in the F.I.R. and in the deposition of other witnesses it has been stated that he was not among the dacoits and hence the prosecution case is doubtful. It is submitted that the learned Trial Court has failed to consider the fact that the appellant was arrested in his house on 06.11.2002 in the morning and nothing was recovered from his house and so his conduct shows that he was not aware of the involvement of his name in the occurrence. 3 It is submitted that the learned Trial Court has failed to consider the fact that the appellant had a Ration, Cigarrete-Biri shop and used to repair cycle as per statement of P.W.3 and also as per statement of P.W.6 and P.W.9, he has a Tasa Party (Banjo Master) and hence, many persons may come in his contact.
Legal Reasoning
It is submitted that the learned Trial Court has failed to consider the fact that as per deposition of P.W.7, the house of Badri Singh is situated at the main route (Rasta) through which the people of several villages used to cross. It is submitted that the learned Trial Court has failed to consider the fact that the appellant has a lot of plots of land in the village Mahaudohar as per statement of P.W.10 and hence many persons have tried to implicate him in the case of dacoity and grab his landed property. It is submitted that the learned Trial Court has failed to consider the deposition of P.W.11 in Para-6 that the appellant was beaten by the Officer-in-Charge, Chhota Babu and Constable with sticks on 06.11.2002 and hence, this Criminal Appeal may be allowed and the Appellant may be acquitted. 5.
Legal Reasoning
On the other hand, learned counsel for the State has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is fit and proper and no interference is required. It is submitted that the reasoning of the learned Court below is proper and based on proper facts. It is further submitted that there is no delay in lodging the F.I.R. 4 It is submitted that P.W. 1, P.W.2, P.W.3 and P.W.4, namely Gurudayal Mahto, Mahadeo Yadav, Sobran Yadav, Nakul Kumar Mahato respectively have fully supported the prosecution case on the point of occurrence of dacoity. It is submitted that even the P.W.4, namely Nakul Kumar Mahato has identified the Appellant- Badri Singh during the commission of offence of dacoity. It is submitted that P.W.2, namely Mahadeo Yadav has also identified the appellant as one of the dacoits. It is submitted that the Investigating Officer has also supported and corroborated the prosecution case. It is submitted that although P.W. 5, P.W. 6, P.W.7, P.W.9, P.W.10, P.W.11 and P.W. 12, namely Iswar Rabidas, Ashok Paswan, Damodar Paswan, Basudeo Yadav, Banshi Yadav, Birju Yadav and Arjun Prasad, i.e. Informant respectively have turned hostile, but several other prosecution witnesses, i.e. P.W.1 to P.W.4, namely Gurudayal Mahto, Mahadeo Yadav, Sobran Yadav and Nakul Kumar Mahato, have fully supported the prosecution witnesses and hence, this criminal appeal may be dismissed. 6. Perused the Lower Court Record and considered the submission of both the sides. 7. It transpires that the F.I.R. was lodged on 05.11.2002 for the offence under Sections 395 and 216-A I.P.C. 5 8. It transpires that the police, after investigation, has submitted chargesheet on 31.01.2003 under Sections 395, 216-A of the I.P.C. against the Appellant and unknown and thereafter, the learned C.J.M. took cognizance on 03.02.2003 under section 395 and 216-A of the I.P.C. against the Appellant. 9. After supplying the police papers to the Appellant the case was committed to the Court of Sessions. 10. The charges were framed against the Appellant under Section 395, 216-A of the I.P.C. on 21.08.2003 by Shri S.K. Prasad, 8th Addl. Sessions Judge, Hazaribagh, to which the Appellant pleaded not guilty and claimed to be tried. 11. It transpires that the prosecution, in support of its case, has got examined 13 (Thirteen) witnesses, who are as follows:- (i) P.W. 1 is Gurudayal Mahto, (ii)P.W. 2 is Mahadeo Yadav, (iii)P.W.3 is Sobran Yadav, (iv)P.W.4 is Nakul Kumar Mahato, (v)P.W.5 is Iswar Rabidas, (vi)P.W.6 is Ashok Paswan, (vii)P.W.7 is Damodar Paswan, (viii)P.W.8 is Ravi Kant Prasad, (ix)P.W.9 is Basudeo Yadav, (x)P.W.10 is Banshi Yadav, (xi)P.W.11 is Birju Yadav, (xii)P.W.12 is Arjun Prasad, i.e. Informant, (xiii)P.W.13 is Binay Kumar Singh, 6 12. It transpires that the prosecution, in support of its case, has got certain documents marked as Exhibits, which are as follows:- (i) Ext.1 is the signature of witness Mahadeo Yadav on the Fardbayan, (ii) Ext. 1/1 is the Signature of Birju Yadav (P.W.11) on the backside of the Fardbayan, (iii) Ext. 2 is the Entire Fardbayan including signature of the Informant and witnesses. 13. Thereafter, the Appellant was examined under Section 313 Cr.P.C. on 02.08.2005, to which he denied the circumstances put forth before him. 14. Neither any defence witness has been examined nor any document has been examined by the defence in support of its case. 15. Thereafter, the learned Court below has acquitted the appellant under Section 395 I.P.C. and convicted him for the offence under Section 216-A of the I.P.C. and sentenced him to undergo R.I. for Four (04) years and to pay a fine of Rs. 1,000/-. 16. It transpires that the F.I.R. was lodged on 05.11.2002 for the occurrence taking place on 04.11.2002 against Seven persons, namely Badri Singh, i.e. the Appellant, Mahesh Yadav, Surendra Singh, Bharat Gupta and Bal Govind Pandey, Bablu, Shubhalal Singh. 17. It transpires that the chargesheet was submitted against the Appellant only for the offences under Sections 395, 216-A of the I.P.C. and investigation was kept pending with regard to the other accused persons by the I.O. 7 18. It transpires from the impugned judgment that the Court below has acquitted the Appellant under Section 395 I.P.C., but sentenced him to undergo R.I. for Four (04) years for the offence under Section 216-A I.P.C., hence appreciation of evidence of prosecution witnesses is necessary. 19. It transpires that the Informant Arjun Prasad has lodged the F.I.R. against the Appellant and six others and unknown persons on 05.11.2002 under Sections 395 and 216-A of I.P.C., but it was seen by the learned A.C.J.M., Hazaribagh on 07.11.2002 and the delay has not been sufficiently explained by the prosecution for sending the F.I.R. late as the occurrence is alleged to have taken place on 04.11.2002. 20. So far as oral evidence is concerned, P.W.1 is Gurudayal Mahto, who has stated that on the date of occurrence, while he was playing cards near the School then the appellant along with Mahesh Yadav, Khublal Singh, Balgovind Pandey and one unknown person came there armed with gun and took away the money from the persons playing cards and thereafter accused Mahadev Yadav assaulted Birju Yadav and Informant Arjun Prasad by slap and fists and confined them in the room of the school. Thereafter, they took all of them to the house of Birju and got his door opened and has looted money and jewellery from the house of Birju and threatened the family members of Birju. Thereafter, they arrived at the house of Mahadev and Shobram Mahto and his house and looted jewellery and 8 cash from their house. He claimed to have identified the dacoits, however, during cross-examination he admitted that it was a dark night and on being confronted by the defence, he denied to have stated before the Police that he was sleeping in his house after performing Diwali and had taken the name of only appellant Badri Singh. He further contradicted his statement given to the police and stated that the Dacoits had also assaulted him, Mahadev, Birju and Arjun. However, he also admitted that he is aware of accused Badri Singh since his childhood, who lives in village Mahuadohar. He had also not disclosed the fact of looting of articles. In Para-6 of his cross- examination he stated that his land and the land of appellant Badri Singh are adjoining to each other. He also admitted that he is not aware of articles looted from other persons. Thus, from scrutinizing the evidence of P.W.1, it is evident that he has tried to implicate the appellant in the case of dacoity, but his evidence is different and contradictory to the statement recorded before the Police because he stated during his evidence before the police as a hear-say witness, but he stated before this Court as an eye-witness. From his cross-examination it transpires that he is acquainted with the appellant since childhood and their agricultural fields are situated in the adjoining areas and hence commission of dacoity in the house of P.W.1 is completely ruled out and cannot be believed. 9 It also appears that on the occasion of Diwali, he was playing cards in the School, i.e. he was gambling in a School and therefore his statement of committing dacoity in his house and in the house of others is completely un-believable. 21. P.W. 2 is Mahadeo Yadav, who also stated that the occurrence took place in the night, at around 7-8 P.M. on the eve of Diwali in the year 1992 and he along with other villagers were playing cards and the Informant Arjun Prasad, Gurudayal Mahto, Sobran Yadav, Iswar Ravidas, who is a driver and several other persons were present, then the five persons including the appellant Badri came there, however, P.W. 2 could not identify other persons and they threatened them in the name of M.C.C. and confined them in the room of the middle school and looted cash amount from them. He also alleged that some of the dacoits took them to the house of Birju Yadav, his house and Gurudayal Mahto and Sobran Mahto and looted articles and jewellery. Thereafter, they went to the house of the informant and looted the articles. He proved the signature on the Fardbayan marked as Ext.1. During cross-examination he was confronted by the defence to the effect that his statement was recorded as a Hear-say witness, upon which he stated that the dacoits including the appellant Badri Singh had looted his house. However, he also admitted during cross-examination that he is acquainted with Badri Singh since his childhood and his 10 house is situated at a distance of Two (02) kilometers from his house. He also could not say the name of articles allegedly looted from the house of P.W.1, namely Gurudayal Mahato, P.W.2, namely Mahadeo Yadav, Informant Arjun Sao and Sobran. Thus, the evidence of P.W.2 is also not reliable and the Court below has rightly disbelieved the evidence of P.W.2. 22. P.W.3 is Sobran Yadav, who has stated that while he was sleeping in his house on the day of Diwali, he opened the door hearing voice of the Informant Arjun Prasad and then 4-5 dacoits entered into his house and looted cash and jewellery after assaulting him. However, during cross-examination he admitted that two persons had assaulted him, but he could not identify the dacoits, who were sitting in the courtyard. He further admitted in Para 4 of his cross- examination that he is acquainted with appellant Badri Singh since his childhood, who has got the shop of cigarette and repairs cycle. He was also confronted by the defence side that his statement was recorded by the police as hear-say witness, but he tried to give evidence as an eye witness, hence, evidence of P.W.3 is not reliable. 23. P.W.4 is Nakul Kumar Mahato, who stated the same fact as stated by P.W.3 and hence, the same is not repeated here. 11 During cross-examination, he also admitted to be acquainted with the appellant Badri Singh. He also stated that his articles were also not recovered by the police. He also admitted that he had not disclosed the name of any dacoit in the Police Station at the time of giving Fardbayan. Thus, evidence of P.W.3 is not reliable. 24. P.W.5 is Ishwar Rabidas, who is a hear- say witness and has stated that while he was sitting in the School, these five dacoits came there and threatened them and looted their cash and thereafter, they had gone to the house of Arjun, Mahadeo Yadav and Birju, however, he could not identify any dacoit. He refused to identify appellant Badri present in the Court. During cross-examination, he admitted in Para-4 that he could not identify any of the five dacoits. He also stated that 17-18 persons were present in the school. Thus, evidence of P.W.5 is not reliable as he could not identify appellant and no specific overt act was attributed to the Appellant. 25. Thus, evidence of P.W.4 and P.W.5 i.e. Nakul Kumar Mahato and Iswar Rabidas respectively contradicted the evidence of P.W.1, P.W.2 and P.W.3, i.e. Gurudayal Mahto, Mahadeo Yadav and Sobran Yadav respectively. 26. P.W.6 is Ashok Paswan, who is also a hear-say witness and stated that on the day of Diwali in the year 2002, 40-50 persons had assembled near 12 Primary School Brinda and they were playing cards, then suddenly Five persons came there, but he had not seen their faces and they have confined them in a room and miscreants took Mahadeo Yadav, Arjun Prasad and Birju Yadav and had gone somewhere, but he is not aware where they had gone. He further stated that a lamp was burning at the time of occurrence, but he could not identify any dacoit. He further stated that Badri Singh was not present at the time of dacoity. Even during cross-examination he admitted that he is acquainted with appellant Badri Singh since his childhood. Thus, evidence of P.W.6 is not reliable for convicting the Appellant. 27. P.W.7 is Damodar Paswan, who has stated that Five dacoits have arrived on Diwali in the year 2002 and they had confined 15-16 persons in the room of the School, where they have been playing cards. On being shown accused Badri Singh, the witness has stated that appellant Badri Singh is not involved in dacoity and he is acquainted with him since childhood. During cross-examination he stated that dacoits had opened their faces and he had seen their faces. Thus P.W.7 does not support the prosecution case and he contradicted the evidence of P.W.1, P.W.2 and P.W.3 and the evidence of P.W.7 is not reliable for convicting the Appellants. 28. P.W.8 is Ravi Kant Prasad, who was the part Investigating Officer of this case and he stated that 13 on 30.12.2002, while he was posted as S.I.-cum-Officer- in-Charge, Chouparan Police Station, he got the record of Chouparan P.S. Case No. 144 of 2002 under Section 395, 216-A of I.P.C and then he started the investigation. He stated that earlier Sub-Inspector Binay Kr. Singh, then Officer-in-Charge of Chouparan P.S. conducted investigation of this case. He further stated that on perusal of the Case Diary he found that as per F.I.R. and investigation on all points there was enough evidence against accused Badri Singh and therefore, on the direction of the higher officials, he submitted chargesheet against accused Badri Singh for the offence under Section 395 and 216-A I.P.C. and then he continued with the investigation. However, during his cross-examination, he stated that he was posted at Chouparan Thana from 14.12.2002 to 28.03.2003 and he had no knowledge as to whether chargesheet was filed against other accused persons or not because he had been transferred. He further stated that at the time of submitting chargesheet against accused-Appellant Badri Singh neither he examined any witness nor he went to the place of occurrence nor he met the accused. He denied the suggestion that he sent chargesheet against innocent Badri Singh, i.e. the Appellant-accused. Thus, from scrutinizing the evidence of P.W.8, namely Ravi Kant Prasad, it is evident that he sent the chargesheet only against accused-Appellant Badri Singh and not against other accused persons 14 named in the F.I.R. and whose name came during investigation carried out by the earlier Investigating Officer of this case and he sent the chargesheet without meeting the accused Badri Singh and without examining any witness and hence, evidence of P.W.8 cannot be relied upon. 29. P.W.9 is Basudeo Yadav, who had also stated that the occurrence took place on the day of Diwali and they were playing cards in the Varandah of the School at night and Arjun Sao, i.e. the Informant- P.W. 12, Birju Yadav, i.e. P.W.11, Mahadeo Yadav, P.W.2, Lakshman Yadav (Not examined), Damodar Paswan etc. were present and then suddenly, at around 7 P.M., Five dacoits came there, who were having pistol and gun and described themselves as M.C.C. people and they confined them in a room. However, they had taken away three persons, i.e. Arjun Sao, i.e. the Informant- P.W.12, Mahadeo Yadav, i.e. P.W.2 and Birju Yadav, i.e. P.W.11 with them and assaulted them. Then after two hours villagers came and broke their door and they learnt that a dacoity was committed in four-five houses of the village. Although, they were playing cards in the light of the Lantern, but he had not identified any of the miscreants during the occurrence. He further stated that he is acquainted with appellant Badri Singh, who resides in Mahuadohar village, which is at a distance of Two kilometers from his house. Later on, he learnt that the dacoits lived in the house of appellant Badri Singh. 15 During cross-examination, he admitted to be acquainted with appellant Badri Singh since long. He further admitted to have not seen appellant Badri Singh in course of commission of occurrence and he identified the appellant Badri Singh as being a co- villager and during Court question, he had stated that he had seen appellant Badri Singh alone on the date of occurrence at around 10-11 a.m. He has also admitted to have disclosed before the police that dacoits were living in the house of Badri Singh at the instance of persons of village Mahuadohar, but he did not know their name. He also admitted that appellant Badri Singh have shop of rice and pulses, i.e. Grocery shop. 30. Thus, from scrutinizing the evidence of P.W.9, i.e. Basudeo Yadav, it is evident that he had not seen the accused-appellant Badri Singh for committing dacoity and he had also not seen accused-appellant Badri Singh amongst the five dacoits, who came to the school where he along with other villagers were playing cards. Therefore, it is evident that he has named appellant Badri Singh for keeping dacoits in his house at the instance of the Informant without any basis and he could not say even the name of the villagers from whom he learnt about the dacoits residing in the house of the appellant Badri Singh. Thus, evidence of P.W.9, namely Basudeo Yadav, is full of concoction and cannot be relied upon. 16 31. P.W.10 is Banshi Yadav, who claimed to have gone to Government school for taking back his cattle, where he had seen 03-04 persons, who had covered their faces with clothes and came with revolver- Banduk and he along with other persons were confined in the room of the school. Later on, he learnt in the morning that dacoity was committed in the house of Gurudayal Mahto, i.e. P.W.1, Mahadeo Yadav, i.e. P.W.2, Birju Yadav, i.e. P.W.11, Sobran Yadav, i.e. P.W.3, Arjun Sao, i.e. Informant-P.W.12. However, he could not identify any of the dacoits and later on he learnt that Badri Singh was involved in the dacoity, but he did not identify the persons, who had disclosed this fact to him. During cross-examination he admitted that the police had not recorded his statement. He further admitted of being acquainted with appellant Badri Singh for a long time and hence, he had identified him in the Court. He also stated of accused Badri Singh having huge land in village Mahuadohar. 32. Thus, from scrutinizing the evidence of P.W.10, it is evident that he claimed to be a chance witness of the occurrence, but his evidence is also full of concoction and cannot be relied upon and he is a Hear- say witness. He himself admitted during his cross- examination to have not stated before the police that appellant Badri Singh was involved in the dacoity. Even P.W.10, namely Banshi Yadav had not named the 17 appellant Badri Singh as one of the dacoits for having arrived in the school. Thus, evidence of P.W.10 is also not reliable and cannot be considered for convicting the appellant even for harbouring to commit dacoity. 33. P.W.11 is Birju Yadav, who also stated that on the occasion of Diwali, at around 7 p.m. in the evening, he along with 15-16 persons were playing cards in a government school, then suddenly Five persons came there with big and small guns and they confined them in the room of the school and took some money from them. Then, they had assaulted Arjun Sao, i.e. Informant-P.W.12, Mahadeo Yadav, i.e. P.W.2 and him and tied their hands and other remaining persons were confined in a room. Thereafter, the dacoits took them to their house and got their doors opened at gun point and had looted Rs.3,500/- cash and some articles from his house and had threatened his mother. Thereafter, the dacoits took them to the house of Mahadeo Yadav, i.e. P.W.2 and took away certain articles from there and they confined him in the said house with the brother of Mahadeo Yadav and the widowed daughter-in-law. Later on, he learnt that dacoity was committed in the house of Gurudayal Mahto, i.e. P.W.1, Sobran Yadav, i.e. P.W.3 and Arjun Sao, i.e. the Informant-P.W.12 and even the Rajdoot Motorcycle of Arjun Sao was looted. However, he admitted that during course of commission of dacoity he had not identified any dacoit. He also admitted that he had not seen accused 18 Badri Singh at the time of commission of dacoity. However, later on he learnt from Mahadeo Yadav, i.e. P.W.2 and Gurudayal Mahto, i.e. P.W.1 that appellant Badri Singh was also involved in the dacoity. Thereafter, they had gone to the house of accused-appellant Badri Singh in the morning and asked him for involvement in dacoity, but he had stated nothing and thereafter, they had gone to police station and he put his signature in the written application, which is marked as Ext.1/1. However, during cross-examination he admitted that although 30-40 persons had gone to the police station, but not all of them given in writing and only those persons gave in writing in whose place the dacoity was committed. He further admitted that he had not seen the accused-appellant Badri Singh amongst those Five dacoits. He admitted to be acquainted with appellant Badri Singh since his childhood. He further admitted that appellant Badri Singh was assaulted in the police station by the Officer-in-Charge, Sub- Inspector and Constables. 34. Thus, from scrutinizing the evidence of P.W.11, it is evident that during the course of examination-in-chief as well as cross-examination, he had not identified the accused-appellant Badri Singh for committing dacoity in the house of P.W.1, namely Gurudayal Mahto, P.W.2, namely Mahadeo Yadav and P.W.3, namely Sobran Yadav and P.W.12, namely Arjun Sao, i.e. the Informant, however, he deliberately and falsely stated before the police by taking the name of 19 appellant Badri Singh to be involved in the dacoity. Thus, it is evident that his evidence could not be relied upon. He has also not supported the evidence of P.W.1, i.e Gurudayal Mahto, P.W.2, i.e. Mahadeo Yadav and P.W. 3, i.e. Sobran Yadav, who had stated that appellant Badri Singh was involved in the dacoity. Thus, evidence of P.W.11 cannot be relied upon as he had implicated appellant Badri Singh at the instance of P.W.1, i.e. Gurudayal Mahto, P.W.2, i.e. Mahadeo Yadav and P.W.3, i.e. Sobran Yadav. Thus, evidence of P.W.11 is not reliable. Further, evidence of P.W.11 contradicts the evidence of P.W.1, namely Gurudayal Mahto, P.W.2, namely Mahadeo Mahto, P.W.3, namely Sobran Yadav and P.W.12, namely Arjun Prasad i.e. the Informant. 35. P.W.12 is Arjun Prasad, who is the Informant of this case and stated that on the day of Diwali on 04.11.2002, at around 8 p.m., while he, along with Lakshman Yadav (Not examined), Damodar Paswan, Iswar Rabidas, i.e. P.W.5, Mahadeo Yadav, i.e. P.W.2, and around 10-15 persons were playing cards in the Primary School, Brinda and work was going on for construction of road through the Dozer, in which some employees are present, then suddenly five persons, being armed with Revolver and Carbine and also two Bombs came there and described themselves as M.C.C. people and enquired about the persons involved in killing of their Area commander Guptaji and threatened them of dire consequences and thereafter, they put a 20 small towel on the floor and asked them to keep their cash, watch etc. and took away the said articles and they confined them in the room of the school and thereafter, he, Birju Yadav, i.e. P.W.11 and Mahadeo Yadav, i.e. P.W.2 were brought in a room and were assaulted and thereafter they took them to the house of Birju Yadav i.e. P.W.11 and committed dacoity by taking their jewellery. Thereafter, the dacoits went to the house of P.W.2, i.e. Mahadeo Yadav and where they also looted silver and gold jewellery and clothes and assaulted their family members. From there they have committed dacoity in the house of Gurudayal Mahto, i.e. P.W. 1 and had assaulted his sons Raju and Birendra. Thereafter, Gurudayal Mahto, i.e. P.W.1, Mahadeo Yadav, i.e. P.W.2 and Birendra were confined in the room in the house of Gurudayal Mahto, i.e. P.W.1. They further committed dacoity in the house of Sobran Yadav, i.e. P.W.3 and lastly they came to his house, i.e. the house of the Informant, namely Arjun Prasad and looted 75 gm of silver jewellery and a Rajdoot Motorcycle, bearing No. JH 12 A 2381 and also looted cash and approximately Rs.25,000/- and threatened them of dire consequences and fled away. Thereafter, he raised alarm, then the villagers came and rescued them and thereafter, the lock of the school was also opened by Khanti (Iron instrument). 36. However, during cross-examination he stated and admitted that accused Badri Singh was not involved with those Five dacoits at the time of 21 occurrence in night and appellant Badri Singh was not involved at the time of commission of dacoity also. However, he stated that appellant Badri Singh along with one person came and roamed in his village for the whole day and hence, this person must have committed dacoity with his four companions. He further claimed that his Bayan was recorded by the police and he also claimed that all Five dacoits took food in the house of appellant Badri Singh. 37. During further cross-examination, he admitted that in the night of commission of dacoity appellant Badri Singh was not present. He further admitted that so far as the person, who came with appellant Badri Singh in the village, is concerned he cannot disclose his colour and no one was with him when he had seen them. He also admitted that the Iron instrument (Shabal), by which Kundi of the door was broken was not shown to the police. He also admitted for whispering that the dacoits had taken meal in the house of accused Badri Singh by the villagers, but he could not say the name of people of the village. He also could not say as to what articles were looted by the dacoits from each person. He also admitted that all the five dacoits have fled away on his Motor Cycle. 38. However, he, i.e. the Informant further admitted that the accused-appellant Badri Singh had not committed dacoity in his house and his hand was also not tied by appellant Badri Singh and he had also not confined them in the room of the school. He further 22 admitted that appellant Badri Singh plays Banjo since last 10-15 years and hence, he is acquainted with him. He further admitted that he has no suspicion upon appellant Badri Singh for committing dacoity. 39. Thus, from scrutinizing the evidence of P.W.12, i.e. Arjun Sao-Informant, it is evident that he had not supported the prosecution case as made out in the F.I.R. He admitted during his examination-in-chief as well as cross-examination that the appellant Badri Singh was not present at the time of commission of dacoity and he was also not involved in tying their hands and confining them in the room of the school. He even had gone to the extent by stating that he had no suspicion upon the appellant Badri Singh for committing dacoity in his house or at the time of occurrence. He further failed to state the name of the villagers for whispering before him that dacoits had taken meal in the house of appellant Badri Singh. Thus, it is evident that P.W.12, i.e. the Informant had not supported the evidence of P.W. 1, i.e. Gurudayal Mahto, P.W.2, i.e. Mahadeo Yadav, P.W.3, i.e. Sobran Yadav and P.W.4, i.e. Nakul Kumar Mahato. Thus, in view of the evidence of the Informant, the evidence of P.W.1, namely Gurudayal Mahto, P.W.2, namely Mahadeo Yadav, Sobran Yadav, i.e. P.W.3 and P.W.4, namely Nakul Kumar Mahato has no evidentiary value. Even P.W.1, namely Gurudayal Mahto, P.W.2, namely Mahadeo Yadav, P.W.3, namely Sobran Yadav and P.W.4, i.e. Nakul Kumar Mahto have not described 23 the articles and materials, which were taken away by the dacoits and not even the cost and weight of silver and gold jewellery. 40. It would appear from the evidence of the prosecution witnesses that the appellant Badri Singh is having landed property and even the land of P.W.1, i.e. Gurudayal Mahto adjoins the land of appellant Badri Singh in which cattle is grazed. Similarly, the land of P.W.2 is also close to the land of accused Badri Singh. Even P.W.2, namely Mahadeo Yadav has admitted that he is acquainted with appellant Badri Singh since childhood and appellant Badri Singh played Harmonium/Tasha etc. He could not say about the articles looted by the dacoits from the family members in the house. Thus, the evidence of the P.W.1, namely Gurudayal Mahto and P.W.2, namely Mahadeo Mahto are wholly unreliable. 41. Similarly, P.W.3, namely Sobran Yadav had also admitted that he is acquainted with accused- appellant Badri Singh since his childhood, who is having a shop of cigarette and Biri and also a cycle repair shop, however, in view of the evidence of P.W.12, the evidence of P.W.3 is contradictory and hence, evidence of P.W.3 is also not reliable. Similarly, P.W.4 has also admitted that his land and land of accused-appellant Badri Singh is situated at some distance. 42. P.W.13 is Binay Kumar Singh, Sub- Inspector, who is the Investigating Officer of this case 24 and who stated during his evidence that on receiving information of dacoity in village, he went to the place of occurrence and learnt that some villagers had gone to the house of accused Badri Singh at village Mahuadohar. Then he went there and met the witnesses and there he had recorded the Fardbayan of the Informant Arjun Prasad, i.e. P.W.12, which was also signed by Mahadeo Yadav, i.e. P.W.2, Birju Yadav, i.e. P.W.11 and P.W.1, i.e. Gurudayal Mahto. He proved the Fardbayan in his writing and signature marked as Ext.2, then he conducted raid in the house of appellant Badri Singh and found him absconding. Then he inspected the place of occurrence at the instance of the Informant and witnesses. He further stated that the place of occurrence is situated to be at Six places. The first is at the Verandah of Primary School, Brinda, the second Place of occurrence is the house of Birju Yadav, i.e. P.W.11. The third Place of occurrence is the house of Mahadeo Yadav, i.e. P.W.2. The fourth Place of occurrence is the house of P.W.1, namely Gurudayal Mahto. Fifth place of occurrence is house of P.W.3, namely Sobran Mahto and Sixth place of occurrence is the house of P.W.12, i.e. Arjun Prasad, i.e. the Informant. Then he further inspected the house of P.W.4, i.e. Nakul Kumar Mahto, where also the dacoity was committed. Thereafter, he inspected the place of occurrence and recorded the statement of witnesses and then he arrested accused Badri Singh at village 25 Mahuadohar and brought him to police station where the accused appellant admitted his guilt, but he could not produce the said confessional statement. In the meantime, he was transferred. Then, he had handed over his investigation of this case to one Ravi Kant Prasad, Sub-Inspector as Officer-in-Charge, Chouparan Police Station. 43. During cross-examination, he admitted that the Informant Arjun Prasad, i.e. P.W.12 had not stated during his statement that the accused- appellant Badri Singh, along with one person was moving around the village one day prior to the occurrence. He further admitted that this Informant, i.e. P.W.12, namely Arjun Prasad had not stated in his statement before him that accused Badri Singh came at his house with one person before the occurrence and was moving with one person in the village. He further admitted that P.W.1, namely Gurudayal Mahto, in Para 17 of cross-examination, had stated before him that he was sleeping in his house after taking meal after celebrating Diwali. He further admitted that witness Mahadeo Yadav, i.e. P.W.2 had not stated before him that accused Badri Singh was involved with those Five dacoits. He admitted and stated on his own that P.W.2, namely Mahadeo Yadav had not stated the name of any villager before him, rather he merely stated that villagers were at the school. 44. He further admitted in Para 19 that none of the witnesses had stated before him in their 26 statement that accused-appellant Badri Singh was involved in the dacoity. Even he admitted that witness Basudeo Yadav, i.e. P.W.9 had not stated before him that when he searched the dacoits in the morning then they learnt that four-five dacoits used to live in the house of accused-appellant Badri Singh. He further admitted for not mentioning the place of occurrence with time in his case diary. He could not say as to whether there was Kundi in the door of the school-place of occurrence or not and he had not seized any article from any place of occurrence. 45. He further admitted in Para 21 that he along with other police officials, had visited the village Mahuadohar on 05.11.2002, but he had not made them witnesses. However, he had searched the house of the accused-appellant, but he could not say boundary and number of rooms of the house. He has arrested the accused on 06.11.2002 at his house in the morning while he was fleeing away, but he has not mentioned the direction of his house and the height of his house in the case diary. He also admitted that the accused was injured at the time of arrest, but he could not say the injuries and had not mentioned it in the case diary. He has not prepared the injury certificate of the accused- appellant. He admitted to have not seized any article from his house although he had searched the house of the accused twice. He had also not got done T.I. Parade of the accused-appellant Badri Singh. He had also not recorded the statement of any witness of village 27 Mahuadohar and village Sardhwa Tanr. He had also not recorded the statement of nearby persons, who are living nearby the house of appellant Badri Singh. He admitted to have mentioned the Fardbayan of Nakul Mahto in para 15 of the case diary, but neither the original Fardbayan or carbon copy of that Fardbayan is enclosed with the case diary and no separate case was instituted on the basis of said Fardbayan. He admitted that Nakul Mahato had neither identified the accused nor disclosed his name. He denied the suggestion to have obtained the confessional statement of appellant Badri Singh by assaulting him in the Police Station and for falsely submitting the chargesheet against him. 46. Thus, from scrutinizing the evidence of P.W.13, namely Binay Kumar Singh, i.e. the I.O., it is evident that he is part Investigating Officer of this case. He had assaulted the appellant Badri Singh before arresting him. However, it is admitted by the Investigating Officer, i.e. P.W. 13, namely Binay Kumar Singh himself that the appellant was injured at the time of his arrest. It is further evident from the evidence of P.W.13 that nothing was recovered from the house of accused Badri Singh when he has visited his house on 05.11.2002 and 06.11.2002. 47. He also could not produce the confessional statement of the appellant Badri Singh recorded by him during evidence and it was not even enclosed with the case diary. Therefore, it is evident that the Investigating Officer had arrested the accused Badri 28 Singh on mere suspicion at the instance of some villagers, who were in inimical terms and having jealousy with him as he has some landed property and was running a Grocery shop and playing Banjo, Harmonium etc. 48. From the evidence of P.W.13, i.e. the Investigating Officer, evidence of P.W.1, namely Gurudayal Mahto and P.W.2, i.e. Mahadeo Yadav got falsified and got contradicted as the Investigating Officer has stated during evidence at Para 17 that Gurudayal Mahto, i.e. P.W.1 has merely stated before him that he was sleeping along with his family members after celebrating Diwali in his house, whereas P.W. 1, namely Gurudayal Mahto, in his evidence, has specifically named the appellant Badri Singh as one of the Five dacoits. Even the evidence of P.W.1, namely Gurudayal Mahto is contradicted by the evidence of P.W.5, P.W.6, P.W.7, P.W.9, P.W.11, P.W.12, namely Iswar Rabidas, Ashok Paswan, Damodar Paswan, Basudeo Yadav, Birju Yadav and Arjun Prasad, i.e. the Informant respectively on the point of participation in the dacoity of appellant Badri Singh. 49. Similarly, the evidence of P.W.2, namely Mahadeo Yadav is falsified and contradicted from the evidence of Binay Kumar Singh, i.e. the Investigating Officer, i.e. P.W.13, who has stated in Paragraph 18 that P.W.2, namely Mahadeo Yadav had 29 not stated before him that appellant Badri Singh was involved in dacoity and was one of those five dacoits. Thus, Even the evidence of P.W.1, namely Gurudayal Mahto is contradicted by the evidence of P.W.5, P.W.6, P.W.7, P.W.9, P.W.11, P.W.12, namely Iswar Rabidas, Ashok Paswan, Damodar Paswan, Basudeo Yadav, Birju Yadav and Arjun Prasad, i.e. the Informant respectively on the point of participation in the dacoity of appellant Badri Singh. 50. It is further evident that the I.O. has himself admitted that the appellant was assaulted and even P.W.11, namely Birju Yadav has also stated that the accused was assaulted by the Police, i.e. the Investigating Officer, Sub-Inspector and the Constables. 51. From going through the L.C.R. it appears that at the time of remanding the accused on 07.11.2002 by the learned A.C.J.M./S.D.J.M. on 07.11.2002, the accused appellant Badri Singh had complained before the Court that he was assaulted by the police. Thereafter, the learned A.C.J.M. had directed the Jail doctor to provide him proper medical facility. 52. Therefore, in view of glaring contradiction in the evidence of prosecution witnesses and also in view of several inconsistencies in the evidence of the prosecution witnesses, this Court is of 30 the view the prosecution has failed to prove charge under Section 216-A I.P.C. for harbouring of dacoits and commission of dacoity by the appellant, as such Judgment of conviction and sentence dated 22.10.2005, passed in S.T. No. 324 of 2003 by Shri Rajesh Kumar Pandey, the Additional Sessions Judge, F.T.C.-VI, Hazaribagh, is set aside and the appellant, namely Badri Singh is acquitted of the charges under Section 216-A of I.P.C. and is discharged from the liability of his bail bonds.. 53. Thus, Criminal Appeal (S.J.) No. 1395 of 2005 is allowed. 54. Hence, fee of Rs.5,500/- be paid by the learned Member Secretary, JHALSA to Mr. Salona Mittal, learned Amicus Curiae appearing for the petitioner in this Criminal Appeal (S.J.) No. 1395 of 2005. 55. Let a copy of this judgment be communicated to the learned Court below forthwith along with the original Lower Court Records. Jharkhand High Court, Ranchi Pronounced on 06.12.2024 A.F.R./s.m. (Sanjay Prasad, J.) 31