Jharkhand High Court
Chandrai Pahariya And Ors. vs State Of Bihar (Now Jharkhand) on 14 August, 2007
Equivalent citations: [2008(1)JCR63(JHR)], 2008 CRI. L. J. (NOC) 660 (JHAR.) = 2008 (1) AIR JHAR R 828, 2008 (1) AIR JHAR R 828
Author: D.P. Singh
Bench: D.P. Singh
JUDGMENT
1. Criminal Appeal (DB) No. 313 of 2000 has been preferred by the appellants from jail whereas Cr. Appeal (DB) No. 361 of 1997 (P) has been filed through lawyer. Since both the appeals arise out of the same order of conviction and sentence, both of them have been taken up together for disposal.
2. All the four appellants have preferred these appeals against the judgment and order dated 28.4.1997 and 30.4.1997 passed by Sessions Judge Sahibganj in Session Trial No. 99 of 1994 whereby and whereunder all the four appellants have been convicted under Section 396 of the Indian Penal Code and sentenced to undergo RI for life.
3. Brief facts leading to these appeals are that in the night of 23/24.12.1991, mauza Dhanbhitta P.S. Barhait situated in interior of Sahibganj was raided by dacoits. As further stated many houses were ransacked and household articles including cash were looted from the hamlets. During this dacoity the house inmates were assaulted on resistance made by them. The police arrived at the village next day in the after noon and recorded the statement of informant Bhima Pahariya son of Maisa Pahariya in presence of Margo Parhiya and one Maisa Pahariya. According to the informant at about 12 at night on alarm raised by villagers, he came out of the house, he was caught hold by six persons and relieved of his writ watch as well as house holds articles, two cocks, two umbrella. He named the appellants as four of dacoits carrying lathi in their hands. He further asserted that after the dacoits fled away Maisi Paharin has narrated that her house was also invaded in which dacoits assaulted the house inmates and took away valuables. He further asserted when Surya Pahariya resisted, he was badly assaulted resulting in his death. According to him the dacoits have taken away two bags of bar-bati, one radio and other house hold articles from other houses as well. He further asserted that the appellants of village Barmasa were known to them. Barhalt police registered Barhait P.S. Case No. 100 of 1991 under Section 396 of the Indian Penal Code and started investigation to finally submit charge-sheet against the five persons including the appellants. All the five persons were committed for trial before the Court of sessions, Sahebganj. During trial one Dharma Pahariya died thereafter four appellants faced the trial under Section 396 of the IPC. The appellants had pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held all of them guilty for the offence as per charge framed against them and sentenced them to serve RI for life.
4. The present appeals have been preferred on the grounds that the learned trial Court has failed to consider the contradictions apparent on the records, ft is further asserted that none of the witnesses examined before the trial Court has asserted that they saw the appellants committing the offence. It is further mentioned that the contradictions available on record itself makes the whole prosecution story doubtful. Learned amicus curiae Sri Raj an Kumar Singh submitted that the appellants could not be identified, as there was no source of light in the dead of night. According to Sri Singh the whole prosecution version becomes doubtful as the appellants residing by the side of the village could not have come to commit dacoity without concealing their faces. Sri Singh further asserted that non-examination of the I.O. has caused material prejudice to the defence. Therefore, the appellant who have already remained in custody for last more than 13 years may be acquitted of the charges.
5. We have gone through the materials on record to appreciate the submissions made on behalf of the appellants. The factum that some dacoity has taken place in the cluster of the houses situated at Dhanbhitta and near hillocks in the night of 23/24.12.1991 is not disputed. According to the informant Bhima Pahariya PW 7 has identified the appellants when dacoity was being committed in his house. He specifically named them having the weapons in their hands. He proved the fardbeyan recorded by the I.O. as Ext. 3 for the prosecution. He has admitted during cross-examination that on alarm raised by villagers he woke up and could identify the appellants. However he further admitted that he could not identify any one else than these appellants out of 40 to 45 dacoits. PW & is the doctor who has conducted the postmortem examination on the dead body of Surya Pahariya and found the cause of death rupture of spleen due to assault on the back and abdomen. PW 9 has submitted supplementary charge-sheet and proved the fardbeyan, charge-sheet and case diary in the writing of Manikant Mishra S.I. However, he admitted that he has not visited the place of occurrence nor examined the witnesses. PW 10 Dr. Suresh Kumar has formally proved the injury report on different persons marked as Ext. 3 series examined by one Dr. Akhilesh Kumar. The I.O. has not been examined in his case. PW 1 is another formal witness, he proved the FIR as Ext. 1.
6. PW 2 Ghasi Pahariya, PW 3 Bhima Pahariya. P.W. 4 Deva Pahariya, PW 5 Sundra Pahariya and PW 6 another Bhima Pahariya have come to assert that dacoity was committed in their houses and they could identify the appellants Dornba, Kapli, Chandrai and Bhogna. However during cross-examination PW 2 admitted that he has not named any of the dacoits before the police. He further admitted vide para 4, he named the appellants as advised by other persons. He admitted that the night was dark and he could identify them in the light of torch. PW 3 admitted that his father deceased Surya was assaulted by appellant Domba. However during cross-examination he admitted that when dacoits entered in the house he was sleeping and got up when the dacoits have fled away. He admitted that he named the appellants before the police and he only named them non-else. PW 4 Deva Pahariya admitted that when dacoits came he was sleeping and when he came out he found the dacoits have already flew away. However he tried to name the appellants as dacoits after seeing them from a distance of 1/2 k.m. PW 5 Sundra Pahariay after naming the appellants admitted in cross-examination that when dacoits came he fled away and could see them concealing himself in a ditch. Another Bhima Pahariya PW 6 named the appellants Kapli to have assaulted him. He also admitted in cross-examination that when he woke up on alarm raised by villagers he saw the appellants from some distance.
7. Appellants Chandrai Pahariya has asserted that due to dispute and opposition from the informant side they have been named falsely to have committed the offence. The prosecution have tried to support that allegations on the basis of the identification of these appellants at the time of the dacoity. It is undisputed fact on record that the appellants belong to a neighbouring village and identification of them could not be difficult. However in these facts the appellants if participated in the dacoity, the normal conduct would have been a conceal their faces. The evidence on record does not show that there were any source of light which may enable the witnesses to identify five or six dacoits out of 45 persons committing dacoity in the dead of night. All the witnesses have admitted that they woke up on alarm raised by villagers when their houses were invaded by dacoits. In such circumstances the panicked inmates of the houses in the dark night could not be in a position to identify any dacoits unless they were, close enough to provide them the opportunity to identify them. Though PW 2, PW 3, PW 5, PW 6 and PW 7 have named different appellants, they have admitted during cross-examination that they could see the appellants from a distance. The informant has admitted that he has not named the appellants before the villagers. PW 2 admitted that he has not named any of the appellants before the police. PW 3 has admitted that when he woke up the dacoits have already fled away and he has not named the appellants earlier. PW 4 himself admitted that he has fled away out of the house and claimed to identify the appellants from a distance. PW 5 ran away out of the house whereas PW 6 claimed to identify them in the dark night from a distance.
8. In the admitted facts when the witnesses had no chance to come in close proximity of the dacoits, they may not have any opportunity to identify them particularly in the dark night and in panicky condition when dacoits were assaulting and invading their house. We further find that the prosecution version regarding the appellants committing the dacoity without concealing their identity or face appears improbable. No dacoits would like to be identified. As such, we find and hold that the identification of the appellants by the prosecution witnesses is doubtful and cannot be relied upon in the particular facts of this case.
9. Having considered the facts and circumstances discussed above, we find that the prosecution has not been able to prove beyond doubts that the appellants have participated in the dacoity committed in the night of 23/24.12.1991. Accordingly the appellants deserve the benefit of doubt. Accordingly, we find and hold that the present appeals have got merit in it and deserve to be allowed.
10. In the result, both the appeals are allowed. The judgment of the trial Court passed against the appellants is set aside and they are accordingly acquitted of the charge levelled against them. Since the appellants are in jail custody, they are directed to be set free forthwith, if not wanted in any other case.