The High Court · 2024
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 592 of 2007 Gokul Das The State of Jharkhand --------- -Versus- --------- ... Appellant … Respondent CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State --------- : Mr. Pankaj Verma, Advocate :Mr. Manoj Kr. Mishra, A.P.P. --------- JUDGMENT C.A.V. on 21.09.2023 Pronounced on 15/02/2024 This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 14.05.2007 and sentence dated 18.05.2007 in S.T. No. 340 of 2005 passed by Sri Ram Narayan Singh , the then learned Additional Judicial Commissioner-FTC, Khunti .by which the appellant has convicted for the offence under section 395 and 120 -B of the I.P.C. and sentenced to undergo R.I. for the period of seven (07) years and to pay fine of Rs. 5,000/- for the offence under section 395 of I.P.C. and R.I. for the period of two (02) years and for the offence under section 120 –B of the I.P.C. 2. The prosecution case, in brief, is that on 19.12.2004 at around 11:30 P.M. , while the informant was sleeping in his shop then some unknown miscreants entered into his Courtyard of the main gate after breaking the lock and they started threatening and assaulted them to hand over cash money, jewelleries otherwise they will be killed and assaulted him and threatened to assault his wife, sons and daughter. It is alleged that 3-4 miscreants, who were having pistol , had broken the box from another room and looted Rs. 20,000/- cash jewelleries silver and gold worth Rs. 30,000/- and they also threatened the 2 near by people . It is also alleged that the miscreants were 12 to 15 in numbers and all miscreants were speaking in Bangla and Hindi (mix language) and they were aged between 20 to 30 years. The informant has further alleged that one month ago Chand Parmanik had informed him that Gokul Das (i.e. the appellant) had called four persons for committing dacoity in his house and he also informed him that they will also commit dacoity in the house of Birbal Das i.e. the informant. It is alleged that the Lantern was burning and the informant had identified 3-4 miscreants properly and claimed to identify them again on seeing them and the miscreants were wearing Pant, Shirt, and Sweater and some of the miscreants had concealed their face putting Towels and muffler. The Informant further alleged that Gokul Das i.e. the appellant had got committed docoity in his house through some unknown miscreants and after the dacoit had fled away, the informant raised alarm and they had gone to the house of Gokul Das i.e. the appellant and then they learnt that he was available in the day but had gone somewhere from the evening. 3. On the basis of fardbayan of the informant Birbal Das Baba je. i.e the informant , the Officer In-charge had instituted Sonahatu P.S. Case No. 50 of 2004 dated 20.12.2004 against the appellant Gokul Das and 12-15 unknown persons. 4. Heard learned counsel for the appellant and learned counsel for the State.
Legal Reasoning
5. Learned counsel for the appellant has submitted that the impugned judgment and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in eye of law. It is submitted that the appellant is named in the F.I.R. on mere suspicion. It is submitted that the allegation against the appellant 3 by the informant are false and concocted. It is submitted that evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4 namely Sumitra Bala, Maheshwar Das , Amilo Das and Gouri Bala is not reliable and they are interested witnesses and they had merely supported the case of the informant under the influence . It is submitted that none of the witnesses had identified the appellant during commission of offence of dacoity and as such the identification of the appellant in the Court is doubtful. It is submitted that P.W. 2 and P.W. 3 admitted during cross examination that they had not disclosed about identification of the appellant to their father at the time of lodging F.I.R. It is submitted that evidence of the P.W. 4 is not reliable as she had identified the appellant in the Court, although she was sleeping with her mother. It is submitted that the informant was examined as P.W. 5 who has named the appellant for committing dacoity in his house through some miscreants at the instance of Chand Parmanaik . It is submitted that the I.O, who was examined as P.W. -6, was not fair in submitting the charge- sheet. It is submitted that no looted articles was recovered from the house of the appellant and even the lantern, which was burning in the house of the informant, was not seized. It is submitted that no witness said about the identification of the appellant at the time of occurrence. It is evident from the F.I.R. that the informant had not identified him during commission of docoity in his house, but the family members of the informant have tried to develop the prosecution case by stating about the participation of the appellant and about his identification. It is submitted that all the witnessed had admitted and stated that the dacoits had covered their faces by mask as such the identification of the appellant is not possible. It is submitted that this is a case of conspiracy and as such in absence apprehension of any accused or any miscreants on subsequent day, 4 the prosecution case is doubtful for the offence under section 120- B I.P.C. It is submitted that even learned Court below failed to consider that the appellant was aged about 70 years on the date of
Decision
passing of the judgment. It is submitted that in view of the above, the evidence of the prosecution witness may be rejected and judgment and sentence passed by the learned Court below may be set-aside and this Criminal Appeal may be allowed. 6. On the other hand , learned A.P.P. has submitted that the impugned judgment and sentence passed by the learned Court below require no interference .It is submitted that appellant is named in the F.I.R. and strong suspicious has been shown against him by the informant in the F.I.R. for commission of docoity and the informant is the main Conspirator . It is submitted that P.W. 5 is Birbal Das Baba Jee. i.e. the informant of this case and he has fully supported his case by stating in F.I.R. and during even his evidence and he has also stood the cross-examination and had stated that the appellant had hired dacoits for committing dacoity in his house Even the informant learnt from Chand Parmanik that the appellant had brought four (04) dacoits for commission of dacoity in his house and had threatened Chand Parmanik for not informing the informant and the informant had fully stood the test of cross-examintion . It is submitted that P.W. 1 Sumitra Bala, P.W.2 Maheshwar Das, P.W. 3 Amilo Das and P.W.4 Gori Bala respectively have fully supported the occurrence of dacoity and they had identified the appellant as one of dacoits in the Court. It is submitted that the P.W. 6 namely Satya Narayan Rai i.e I.O. of this case and he also supported and corroborated the prosecution case. It is submitted that although the articles have not recovered but the documents have proved and as such the prosecution has successfully proved the case under sections 395 and 120-B of the 5 I.P.C. against the appellant and hence this Criminal Appeal may be dismissed. 7. Perused the Records of this case and considered the submission of both the sides. 8. It transpires that the informant P.W. 5 Birbal Das Babajee had lodged FIR on 20.12.2004 for commission of Dacoity taking place in his house on 19.12.2004 at around 11.30 P.M. in the night . 9. It transpires that the police, after making investigation, had submitted charge-sheet against the appellant under sections 395 and 120- B of the I.P.C. on 04.05.2005 before the learned A.C.J.M., Khunti and investigation remained pending in respect of other unknown accused and the learned A.C.J.M. Khunti had taken cognizance under section 395/120-B of the I.P.C.by the learned Additional Judicial Commissioner-III, Khunti on 04.05.2005 against the appellant. 10. After supplying police paper to the appellant the case has committed to the Court of sessions. 11. It transpires that the charges were framed against the appellant on 23.06.2005 for the offence under section 395/120-B of the I.P.C. by the learned Additional Judicial Commissioner-III, Khunti and to which he pleaded not guilty and claimed to be tried. 12. It transpires that the prosecution had got examined six (06) witnesses in support of its case as follows:- (i) P.W. -1 is Sumitra Bala( wife of informant), (ii) P.W.-2 is Maheshwar Das ( Son of Informant ), (iii)P.W. 3 is Amilo Das ( Son of Informant), (iv) P.W. 4 is Gauri Bala ( Daughter of informant), (v) P.W. 5 is Birbal Das ( i.e. the Informant ) and (vi) P.W. 6 is S.N. Rai i.e I.O. of this case. 6 13. The prosecution had got marked the Exhibit as follows:- (i) Exhibit 1 is signature of informant on FIR, (ii) Exhibit 2 is endorsement on FIR and (iii) Exhibit 3 is formal FIR 14. Thereafter the appellant was examined under section 313 Cr.P.C on 22.03.2007 by the learned Court below and to which he denied the circumstances put forth before him. 15. Neither any defence witness was examined on behalf of the appellant nor any document was marked as an Exhibit on behalf of the appellant. 16. Thereafter, learned Court below, after hearing both the sides had convicted the appellant for the offence under section 395 and 120B of the I.P.C. and sentence him on different Counts and hence the appreciation of evidence of prosecution witnesses will be necessary. 17. It transpires from the FIR , the informant has named the appellant for calling the miscreants i.e. the dacoit for committing dacoity in his house who were 12-15 persons and they were aged around 20 -30 years and he had identified 3-4 miscreants in lantern light . He also alleged that one month ago , Chand Parminik had informed him that his villager Gokul Das i.e the appellant had invited /called four persons for committing dacoity in his house and who had informed him that they will also commit dacoity in the house of the Birbal Das. 18. He had claimed that the appellant i.e. Gokul Das has got committed dacoity in his house and he alongwith Co-villagers had gone to his house and learnt that although he was present in house in the morning but he had gone somewhere from the evening. However none of his family members had 7 stated before him that they had identified the appellant at the time of occurrence of dacoity. 19. P.W.1 is Sumitra Bala i.e. the wife of the informant and she stated during her evidence that the occurrence took place in the night and at that time she alongwith her children was in the house and miscreants who were 25-30 in number had broken the door of his house and entered into her house who were having armed with gun, pistol and bombs and lantern was burning in her house. Thereafter, all the dacoits had broken the box and had looted gold and silver ornaments and the other articles and also taken away Rs. 20,000/- cash and in the value of gold and silver jewelleries and article to be around Rs. 50,000/- , Rs.51, 000/- and thy identified two (02) dacoits and one of them was Gokul Das and other is Chand Parmanik and claimed to have identified the appellant in the Court. 20. During her cross examination, she stated that one Durlav Das, Dada( brother ) and he had been married with Nanad and her house and house of Durlav Das are situated in one place and house of Durlav Das, does the work of agriculture . She further stated that some days prior to the occurrence, there was dispute between Durlav Das, Gokul Das, Birbal Das and Ravindra Devi i.e wife of Gokul Das used to say “Dain”. She also stated that police took her statement with regard to this case but the police had not asked her that 25-30 persons entered into her house , however she stated before the police that the dacoit were carrying pistol , bomb but the police had not asked about burning of lantern or dibri and hence she had not disclosed the fact before the police, while taking contradiction under section 161 of the Cr.P.C recorded by the police, she stated before the police that 10-12 miscreants had 8 arrived who were wearing towel and muffler and covered their faces due to which she could not identify them. She further stated that Rs. 30, 000/- cash and jewelleries, which were kept in her house were looted and even the box was taken away. Her husband was sleeping in other room and she was sleeping with her daughter Gouri Bala and her son and was sleeping in the other room which was locked by the miscreants and after departure of the dacoit they had opened the locked and brought outside her son. Thereafter her husband came to her after the dacoits had departed away and thereafter villagers also came. In the morning her husband went to the police station and she stated to her husband that she identified two (02) dacoit Gokul Das and Chand Parmanik @ Chand Hazam. She asserted that the dacoit had gone after locking their residence and then on the noise of 10-15 persons came out side house. Even dacoit had locked them inside the house while they were fleeing away, then later on the local villagers had come and had broken the lock and then they came outside the house. She claimed that she had not identified the voice of anyone except Gokul Das and the voice of villagers were mixed. She further stated that Chand Hazam lives in the village. However she could not say as to how much the quantity of gold and silver were looted. She stated that the police had arrived on her residence after 15-20 days of the occurrence but the police has not seized Lantern. 21. Thus from scrutinizing the evidence of P.W. 1 i.e. the wife of the Informant, it would appear that she claimed to identify the appellant Gokul Das and Chand Das at the time of commission of dacoity and she also shown dispute that the wife of Gokul Das was taunting her “Dain” word due to which there 9 were disputes between Gokul Das on one hand and Durlav Das on the other hand. However the informant has not stated in the F.I.R. that his wife had identified the appellant at the time of dacoity while lodging the F.I.R. Hence the evidence of P.W. 1 will be tested after the evidence of P.W. 5 i.e the informant. 22. P.W. 2 Maheshwar Das i.e. son of the informant who stated during his evidence that on 19.11.2005 while they were in residence at around 11:30 pm. in the night then dacoits having armed with Tangi and pistol and entered into house and looted jewelleries clothes and copper article etc. and looted articles valued approx. Rs. 50,000/- and dacoit were 25-30 in numbers and they identified two (02) dacoit one of them Gokul Das Baba jee and other dacoit was Chand Parmanik and Chand Parmanik is still absconding and the witness had have identified the appellant in the Court. During cross-examination he stated that they were sleeping in different room on the date of occurrence and his father was in the Shop and his sister was sleeping in other room and his younger brother was sleeping with him in his room and dacoit had not taken any article from his room and he alongwith his younger brother was watching T.V ,however , loot-pat had taken place in the room of his mother and his father and there is way between his room and room of his father and dacoit had locked his room on the outside and his father broken the lock after the dacoit had departed and he had identified two dacoits from the inside the room and he was awoke on hearing alarm out of fear both he and his brother had remained inside the room but after departure of dacoits he claimed to have identified the appellant Gokul Das Baba jee. He admitted that from the time of his birth he identify the appellant in para 13 of his cross- 10 examination. When he informed the villagers that he had identified two (02) dacoits one of them was Gokul Das and other was Chand Parmanik, however he not aware as to whether his father had identified whom but he had not disclosed this fact to his father . He admitted that house of Gukul Das and Durlav Das are in front of each other but he was not aware that prior to occurrence there was some dispute between his family and family of appellant with regard to allegation of “Dain”. 23. Thus from scrutinizing the evidence of P.W. 2 it would appear that he also claimed to identify the appellant Gokul Das and Chand Parmanik . However he was not aware that his father had identified the appellant or not . However, he denied the suggestion for implicating the appellant Gokul Das on the point of dispute between wife of Gokul Das and his family members. Thus from the evidence of P.W. 2, it is evident that he had claimed to identify the appellant during commission of offence of dacoity in his house but he was inside the room of his house and he has stated in para 9 of his evidence that the room was locked from outside by the dacoits and such the identification of the accused by P.W. 2 is doubtful because his father had not attributed any over act in the F.I.R for committing dacoity in his house rather the informant had named him in the F.I.R. on mere suspicion . He apparently is an interested witness however his evidence will be tested after the evidence of P.W. 5 i.e the Informant. 25. P.W. 3 is Amilo Das @ Chota Lalu and who stated during his evidence that on 19.11.2004 around 11.30 P.M. in the night , while he was sleeping in his house then the dacoits had broken the door of his house and assaulted his father , mother 11 and sister and threatened them and assaulted them and looted silver jewelleries ,clothes etc.. He had identified the dacoit from the window and had seen Gokul Das Baba jee i.e. the appellant and had identified them and appellant Gokul Das had been identified by voice also who was shouting “Bhago-Bhago” ( i.e. Flea away) and they had identified also Chand Parmanik in the light of torch and the dacoits fled away after committing dacoity then they went to the house of Gokul Das and Chand Parmanik but both of them were not present in their house and they were not seen from the evening from that day . 26. During cross-examination he stated that he has come for giving evidence with his brother -in -law but he does not know his name. The dacoits had not entered inside the room in which he was sleeping, however dacoit had exploded bomb and from the sound of the same, he wake-up at the time of fleeing away and they were exploded bomb and then he come outside hearing sound of bomb . He had come outside the Aagan in the western side and dacoits had fled away from the eastern side. He also stated that 50-60 people had assembled after dacoity but he cannot say the name of any person. However, he had gone to the house of Gokul Das with his father and brother but none of the villagers had gone there. He is acquainted term with Durlav Das who is his Fufa and he admitted that house of Durlav Das and Gukul Das are in front of each other. He had not informed Durlav Das regarding commission of dacoity and his house is situated at the distance of 60-70 steps from the house of Gokul Das, the appellant and he was aware of the Gokul Das i.e. the appellant since his birth, however he identified Gokul Das from the window and he disclosed the fact first time to his mother and then his father and his brother also identified the appellant. He also 12 disclosed before the police that he identified the dacoits from the window. He again asserted that he identified the appellant Gokul Das by voice, however he had not but seen the window of his room of his house. He learnt from his father that Rs. 20,000/- cash and jewelleries and Rs. 30,000/- were taken away by dacoits and dacoits had broken the key of box of his house. He claimed that his brother was sleeping in his room on the date of occurrence and his sister also in the house. However he admitted before the police that dacoits had covered their faces and towel and Muffler and the dacoits were 25-30 in numbers. 27. Thus from scrutinizing the evidence of P.W. 3, it is evident that at the time of commission of dacoity, he was sleeping with his brother in the room and said room was locked from outside but he claimed to identify the dacoits from the window of his room and also at the time of fleeing away of the dacoits, he came outside from his room to the Courtyard in the western side while the dacoits were fleeing in the eastern sides. As such assertion of the P.W. 3 is clearly doubtful and he had falsely identified two (02) persons including the appellant and one Chand Parmanik who were Co- villagers. When his father failed to state in the F.I.R. that his son had also identified the appellant. He had not stated any specific fact against the appellant, was alleged by shouting for fleeing away. Thus, the evidence of P.W. 3 is doubtful on the point of identification and also fact that he is well aware of the appellant from his birth. No known person will commit dacoity in the house of a known person. Even identifying the appellant by his voice is also doubtful. 28. P.W. 4 is Gauri Bala i.e. the daughter of the informant aged about 12 years and she stated that the dacoit had come to her 13 house at around 11:30 P.M. in the night on Sunday and who were 20-25 persons having with Tangi , Lathi , Pistol , torch etc . She stated that while she was sleeping with her mother , she woke-up on hearing alarm and had seen that the dacoit were assaulting her mother and father and with her and she was scolded and after . The dacoits had taken away Rs. 20,000/- cash and gold and silver jewelleries worth Rs. 30,000/- and she was weeping due to assault and she was slapped by Chand Parmanik and Gokul Das whom she had identified. The dacoits had fled away after assaulting them and after looting the articles but she was not treated as his father had lodged FIR in the morning. She claimed that the dacoits had not assaulted her brother. She stated that Durlav Das is her Fufa and his house is in front of Gokul Das. During cross-examination she stated that the police has taken her statement and she stated that she was caught of her hair and assaulted and dacoits had taken Rs. 20,000/- cash and jewelleries worth Rs. 30,000/- . She had denied the suggestion for not stating this fact before the police. Even the father and mother were assaulted by Gokul Das and Chand Parmanik, however she was not treated by the Doctor and her father had gone to police station in the next morning and she had disclosed her father that she had identified Gokul Das i.e. the appellant and Chand Parmanik at the time of dacoity. On the date of occurrence she was sleeping with her mother in the room but the dacoits had not locked the door of the room of her brother and father. 29. Thus, the evidence of P.W. 4, who is also a child witness, is also not reliable. She had claimed to identify the dacoits who assaulted her, her father and her mother but her evidence is full of contradiction and cannot be relied upon as her 14 evidence 30. is contradicted by the evidence of P.W. 5. P.W. 5 is the Informant Birbal Das Baba Jee who stated during his evidence that while he was sleeping in his house on 19.12.2004 at around 11:30 P.M. at night on Sunday, then the dacoits started breaking the kundi in main door and entered into the Aagan of his house who were 20-30 in numbers and they got shop opened after giving threatening and one of the dacoits pointed pistol at him and he was assaulted and his wife was also assaulted and they were threatened by the dacoits and the dacoits had looted jewelleries , cash , house article . After departure of the dacoits he raised alarm and came outside then they gone to the house of Gokul Das i.e. the appellant and Chand Parmanik who not present in their house. He also stated that prior one month before the occurrence Chand Parmanik had informed him that the appellant Gokul Das had brought four (04) persons to commit dacoity in his house and Chand Parmanik also informed him that he will not go to his house. He asserted that Gokul Das had committed dacoity in his house, thereafter the police came to his house and recorded his statement and Fardbyan and he put his signature of the fardbyan which is marked as Exhibit -1. He also identified the accused in the Court. 31. During his cross-examination he stated that he is aged about 47 years and the appellant Gokul Das is elder in age to him but he is not aware of the age of the appellant and he identified the appellant Gokul Das from the time of his birth who is Uncle in his relation. The police inquired him on the next day at 12:00 noon. Amilo Das i.e. P.W. 3 is his Son, Gauri Bala i.e. P.W. 4 is his daughter and Sumitra Balai.e. P.W. 1 is his wife. He had gone to the house of Gokul Das but his wife and children had not accompanied them but 40-50 persons had gone to his house and 15 seen that he was not present in the house but his wife was present in his house but he had not taken his wife and daughter before going the house of Gokul Das , however after returning from the house of Gokul Das, his wife, son and daughter talked with him about the occurrence .He also stated about the occurrence before the police and stated that he dacoits were 12- 15 in number and aged about 20-30 years , thereafter the police had recorded his statement again after 10-15 days after his fardbayan . He had not disclosed before the police and has stated that Chand Parmanik and Birbal Das had arrived in the evening from the jungle and live in company of thief of anti-social elements. He also admitted for not suspecting upon Gokul Das i.e. the appellant. He further stated that the police had seen the box in his house but not seized them however he was not aware as to what quantity of gold jewelleries and silver jewelleries were stolen. He had also not disclosed before the police the cost of jewelleries but stated the price by estimation. He stated that at the time of dacoity he was sleeping in the shop and his wife and daughter were sleeping in other room. The box of money was in his shop and he has got shop of grocery. Box of jewelleries was in the room of wife. He had raised the alarm after 20-25 minutes after departure of dacoits. Durlav Das is his Bahnoi and his house is in front of Gokul Das. He admitted that there was dispute with regard to “Dain” taunting by the wife of Durlav Das and wife of Gokul Das and there was no such dispute of Dain. He stated that the dacoits had assaulted his wife on her hand and back and he was also assaulted by the dacoits on his arm but they had not got treated as they had sustained only simple injury. 16 Chand Pramanik had stated one month ago prior to the occurrence that Gokul Das had called the dacoits for committing Dacoity in his house but he had not informed this matter before the police. He had gone to police station with Choukidar Arun Lohra but his statement was not recorded at that time. 32. Thus from scrutinizing the evidence of P.W. 5 i.e the Informant, it would appear that he had supported the prosecution case for commission of dacoits in his house and for assaulting his wife and daughter and looting about Rs. 20,000/- cash and jewelleries worth Rs. 30,000/- but he had not named the appellant Gokul Das for committing dacoity in his house . 33. Although P.W. 1 Sumitra Bala and P.W. 4 Gauri Bala had stated that they had identified the dacoit Gukul Das and dacoit Chand Parmanik for committing dacoity, but the evidence of P.W. 5 does not support the evidence P.W. 1 and P.W. 4 on the point of identification of the appellant Gokul Das and one Chand Parmanik rather the evidence of P.W. 5 is contradicted from the evidence of P.W. 1 and P.W. 4 namely Sumitra Bala i.e. wife of the informant and Gauri Bala daughter of informant respectively. 34. It is also evident that P.W. 5 the informant had not stated any overt act against the appellant for committing dacoity in his house at the time of commission of dacoity while lodging the F.I.R. on 20.12.2004 .However he raised suspicion against the appellant Gokul Das . He claimed that he had gone to his house after commission of dacoity after 20-25 minutes and he had not found him. Even during cross-examination, he admitted that he is aware of Gokul Das by birth who is aged more then him. Even the witness i.e. the Informant was aged about 47 years at the time of 17 evidence. He alleged that the dacoits were aged of 20-30 years and the appellant was aged about 65-70 years at the time of commission of evidence and as such the identification of the appellant by P.W. 1 and P.W. 4 Sumitra Bala and Gauri Bala respectively is doubtful and it does not support the prosecution case. 35. P.W. 6 is the Investigating Officer (i.e. I.O.) of this case who has proved the endorsement on the FIR marked as Exhibit 2 and has proved the formal FIR marked as Exhibit 3. He stated after institution of the case, he started investigation and recorded the statement of the witnesses and had visited the P.O. and at the time of investigation at the place of occurrence , he found that main door of Varanda, the house of the informant had been broken and the dacoits had entered into his house through this main door by breaking the door from the hammer and the shop of the informant is just main door and one gate is opened in the north side and one gate towards the south side of Courtyard and shop of the informant is a Grocery Shop keeping rice , pulse and even clothes . There are four(04) rooms apart from the Courtyard and shop in which the family members of the informant were residing and miscreants had allegedly looted Rs. 20,000/- cash and jewelleries and articles worth around Rs. 30,000/-. He also described the place of occurrence and that he had not stated about the room of the son and daughter of the informant from which they claimed to identify the appellant Gokul Das and Chand Parmanik from the window of the room. Then he submitted the charge-sheet against the accused under sections 395 and 120-B of the I.P. C 36. During cross-examintion he admitted that even the informant had suspected against the appellant Gokul Das regarding commission of dacoity in his house. However, he had 18 not seized the broken box and kundi. He had also not seized lantern in the light of which miscreants as said to have been identified. He had arrested the appellant Gokul Das but had not seized any objectionable substance from his house. He stated that Sumitra Devi i.e. P.W. 1 had merely stated before him that the miscreants had concerned their faces by Towel and Muffler and she had seen 10-12 dacoits but she had not identified any one . He further stated that the witness Maheshwar Das i.e. P.W. 2 has not stated before him that there were 25-30 dacoits whom he had identified the appellant Gokul Das and Chand Parmanik by voice and shape of his body. He denied that P.W. 2 had stated before him to identify the appellant Gokul Das and Chand Parmanik from the window of room and not identified the Gokul Das in the lantern light. 37. He i.e. P.W. 6 has contradicted the evidence of P.W. 4 Gauri Bala that she had not stated before him that the dacoits had caught and assaulted her and looted jewelleries of Rs. 30,000/- and Gokul Das assaulted her by slap. He further stated that Birbal Das i.e. P.W. 5 had stated before him that some dacoits were taking names of each other and one of the miscreant was identified by his daughter by shape of his body. He also stated that the witness had not stated about pointing pistol, Bhujali . He also stated that Chand Pramanik had not been arrested during his evidence but Gokul Das was arrested and he could know about other dacoits. He admitted that none of the looted article were recovered. 38. Thus from the scrutinizing the evidence of P.W. 6 , it is evident that he had merely recorded the statements of the witnesses and submitted the charge-sheet against the appellant under section 395 and 120-B of the I.P.C. . However he had not seized the box, kundi and the lantern which was burning in the 19 house of the Informant and which was shown the contradiction and he seized the Torch by which the P.W. 2 and P.W. 3 namely Mahehwar Das and Amilo Das respectively had claimed to identified the appellant Gokul Das and one Chand Parmanik by torch light. He had also contradicted the evidence of P.W. 1, P.W. 2 and P.W. 4 namely Sumitra Bala, Maheshwar Das and Gauri Bala receptively on the point of identification. 39. Thus, in view of non-seizure of lantern, Torch, box and kundi, the prosecution case suffers from lacuna. It is also evident that P.W. 1 and P.W. 5 namely Sumitra Bala and Birbal Das Baba Jee respectively have merely stated that they cannot say about the quantity of gold and silver jewelleries which were stolen and could not say about the details of said jewelleries . Therefore the allegation the of dacoity of jewelleries in the house of the informant by the appellant Gopal Das is clearly doubtful. 40. It transpires from the evidence of P.W. 6 i.e I.O. of this case that there is not mention of window of the room of P.W. 2 and P.W. 3 namely Sumitra Bala and Maheshwar Das respectively by which they claimed to have identified the appellant Gokul Das and one Chand Parmanik in lantern light. Thus the prosecution case is doubtful on the point of identification of the accused- the appellant Gokul Das. 41. Mere absence of the appellant Gokul Das from his house on the night of the occurrence does not suggest that the appellant Gokul Das was instrumental in commission of dacoity in the house of the informant. 42. It is well settled that no person can be convicted on the basis of mere suspicion. 20 43. It has been held in the case of the ( 2024) 3 SCC 481 reported in Supreme Court that the person could not held in the guilty of on the basis of suspicion. 44. It has been held by Hon’ble Supreme Court in the case of Raja Naykar Vs State of Chhattisgarh reported in (2024) 3 SCC 481 at para 30 as follows: “Para 30- As already discussed hereinabove, merely on basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. WE find that the prosecution has utterly filed to do so.” 45. It is further evident that the T.I.P of the appellant was conducted . Although the appellant had raised suspicion against him , however the evidence cannot be used against the appellant and there is contradiction of the evidence of P.W. 5 namely Birbal Das on the one hand and P.W.1 and P.W. 4 namely Sumitra Bala and Gauri Bala respectively on the other hand . 46. It is well- settled that charge under section 120 B of the I.P.C. cannot proved in absence of arrest of any other accused person and hence framing of charges under section 120 B of the I.P.C is completely illegal . 47. case of Subhash Alias Dhillu Vs. State of Haryana with It has been held by Hon’ble Supreme Court in the Mukesh Alias Billu Vs. State of Haryana reported in (2015) 12 SCC 444 at para 6 as follows: “Para -6: To make out the offence under Section 120-B IPC, the prosecution must lead evidence to prove the existence of some agreement between the accused persons. There is no specific evidence as to where and when the conspiracy was hatched and what was the specific purpose of such conspiracy. No such evidence has been adduced in the present case. Therefore, in our opinion, the conviction and sentence of the appellants have to be set aside.” 48. It is evident that the witnesses P.W. 1, P.W. 4 namely Sumitra Bala and Gauri Bala respectively had given exaggerated version to the evidence of the informant . Even the FIR does not 21 mention that the wife , two sons of the informant and daughter of the informant had identified the appellant at the time of commission of dacoity and then the informant gone to the police station for lodging the FIR , but P.W. 1 namely and P.W. 4 namely Sumitra Bala and Gauri Bala respectively have claimed to identify the appellant for the first time during the Court and it was not supported by P.W. 5 i.e. the informant of this case . Thus the evidence of P.W. 1 and P.W. 4 namely Sumitra Bala and Gauri Bala respectively are not reliable. 49. Thus in view of the discussion made above , it is evident that there is several inconsistences and contradictions in the evidence of prosecution witnesses and as such the learned Court below has committed illegality by convicting the appellant for offence under section 395 and 120-B of the I.P.C. 50. Accordingly the judgment or conviction dated 14.05.2002 and sentence dated 18.05.2007 passed by the learned Additional Judicial Commissioner, F.T.C. , Khunti in S.T. No. 340 of 2005 are set-aside and the appellant Gokul Das is acquitted for the offences under section 395 and 120- B of the I.P.C. and the appellant namely Gokul Das is discharged from the liability of his bail bonds. 51. Accordingly, this Criminal Appeal (S.J.) No. 592 of 2007 is allowed. 52. sent to the learned court below by the Office at once. Let the entire Original Lower Court Records be (Sanjay Prasad, J.) Bibha/