Patna High Court
Suba Yadav And Ors. vs State Of Bihar on 24 March, 2001
Equivalent citations: 2001CRILJ3816
JUDGMENT Indu Prabha Singh, J.
1. All the appellants have been convicted under Section 395 of the Indian Penal Code and have been sentenced to undergo R.I. for ten years each.
2. The prosecution case in short is that on 18/19th October, 1984 while the informant was sleeping in his 'Dalan' in the night and his son Mahendra Yadav and two labourers were also sleeping there. It has been alleged that in the midnight, one person came near the 'Chauki' of the informant and enquired from him that who he was. On being asked, he disclosed his identity as a policeman and in the meantime, three other persons also came there and they tied the hands and feet of the informant, his two sons and the two labourers. They also threatened that if they will raise alarm, they would be killed. It has been stated that the informant identified four miscreants by face in the light of 'Lantern' which was lit and was there in the 'Dalan. It has been stated that two of the miscreants had 'Lathi' in their hands and other two had country made gun. The in formant also heard the sound of the other dacoits, who had entered the house. It has been stated that the dacoits remained in the house for about fourty five minutes and they were 12-13 in numbers. When dacoits fled away the female members of the house raised alarm and villagers came on 'dalan' and untied their hands and feet. Thereafter, they ran and chased the dacoits to scare them and get frightened and did not chase them further. The informant went inside his house and he found all the boxes were broken inside the house and the dacoits had taken away silver ornaments and clothes from the boxes. It has also been stated that the informant was told by his nephew, namely, Satendra Yadav and female members, who were inside the house during the commission of dacoity, about the identification of the appellants, namely, Suba Yadav, Ramanuj Yadav, Ram Chandra Yadav, Kameshwar Yadav and Bijoy Yadav. It has been stated that the family members of the informant also disclosed the identity of the dacoits to the Dafadar and other persons of the village. It has also been stated that the dacoits had painted their faces with black paint and were speaking local language. On the basis of the Fard beyan of the informant, an F.I.R. was registered and a . case was instituted and charge-sheet was submitted against the appellants. Thereafter, cognizance was taken and subsequently the trial concluded with the result as indicated above. Appellants pleaded not guilty and stated that they were falsely implicated in this case due to enmity with the informant.
3. The prosecution in support of its case examined altogether twelve witnesses. P.W. 1 is Suraj Mani Devi, P.W. 2 is .Satyendra Yadav, P.W. 3 is Mahendra Yadav, P.W. 4 is AJay Kumar Singh, P.W. 5 is Ram Kalia Devi, P.W. 6 is Kisun Yadav, P.W. 7 is Ramkali Devi, P.W. 8 is Somar Yadav, the informant, P.W. 9 is Motilal Yadav, P.W. 10 is Rajdeo Singh, P.W. 11 is Chandra Bhushan Sharma, who is the officer-in-charge and P.W. 12 Chabi Narayan Singh, who is a formal witness.
4. P.W. 8, the informant had fully supported the case of the prosecution. He had stated that on 18/19th October, 1984 in the night he was sleeping with his son, Mahendra Yadav and two labourers on Dalan, one person came near his 'Chouki' and having seen him, he enquired his identity and thereupon he disclosed that he was a policeman. In the meantime, three more miscreants came there and they tied the hands and feet of the informant as well as his son and two labourers. He stated that all the four miscreants threatened them not to raise alarm, otherwise they will be killed. He also stated that he identified four miscreants in the light of Lantern which was burning in the Dalan. He stated that two dacoits were armed with lathi and two were having country made guns in their hands. He stated that he also heard the sound of dacoits who had entered inside the house. According to him, the dacoits stayed there for forty five minutes and opened the main door from inside and came out through dalan and went towards north. The number of dacoits in all was 12/13. He stated that when the female members raised alarm, the villagers came and untied the hands and feet of the informant as well as his son and two labourers. Thereafter they chased the dacoits but since firing was made by the dacoits, they get frightened and could not apprehend them. When they went to their home, the informant found all the boxes of the family members were broken inside the house and dacoits had taken away silver ornaments from the boxes. He further stated that the female members, who were inside the house, identified the appellants, namely, Suba Yadav, Ramanuj Yadav, Ram Chandra Yadav, Kameshwar Yadav and Bijoy Yadav. They also stated that the dacoits had painted their face with black paint. Other witnesses P.Ws. 2, 5 and 7 have also fully supported the version of the informant as narrated in the F.I.R.. P.W. 1 has stated that she had identified the dacoits and also named them. She stated that she went to the Dalan where hands and feet of the informant, his son and two labourers were tied. She had stated that she was sleeping in the western room along with her son, Satyeridra Yadav (P.W. 2), on knocking at the door, she opened the door and when she opened the door seven-eight dacoits entered her room and started flash-Ing torches. Some of the dacoits started breaking boxes and snatching articles. She stated that they took away silver Hasuoli from her neck and other ornaments. P.W. 5, who is the another eye-witness, stated that she was sleeping in her room with her child when some persons dashed the door and opened it. According to her, four persons entered into the room and she identified Suba Yadav and Sudeshwar Yadav in the torch light, flashed by the dacoits. She had also stated that the dacoits had painted their face with black colour. P.W. 7, who is another eye-witness on the factum, in paragraph 4 of the deposition has stated that she identified the appellant, Ramanuj Yadav, Suba Yadav, Sudheshwar Yadav and Vijay Yadav. P.W. 11 is the I.O. of the case. "He has stated that on 19 10-1984 he was posted as officer-in-charge, Goh and he recorded the Fard Beyan of the informant. P.W. 8, Somar Yadav at 2 p.m. and on the basis of his statement an F.I.R. was lodged against the appellants. He also visited the place of occurrence and remained there till late hours and he found that the doors of the house were broken and articles from the boxes were scattered. He also seized the broken boxes and made the seizure list.
5. Learned counsel appearing on behalf of the appellants has submitted that the appellants have been falsely implicated because of the enimity in collussion with the police. It has been further submitted that although the dacoits were identified by P.Ws. 1, 5 and 7 but their names were not disclosed to the villagers who came after the hulla and chased the dacoits. It has also been submitted that the occurrence took place at night and the F.I.R. was lodged on the next day at 2.00 p.m. and for which no plausible explanation has been put forth.
6. Altogether twelve P.Ws. have been examined in this case including the informant out of which P.Ws. 1, 2, 5 and 7 have been examined on factum of dacoity and also identified the appellants P.W. 1, Sura) Mani Devi, P.W. 2, Satyendra Yadav, P.W. 5, Ramkalla Devi and P.W. 7 Kisun Yadav, who were inmates of the house where dacoity has been alleged to have been committed. P.Ws. 3 and 8 are also members of the same family but they were sleeping at Darwaja along with P.W. 10 and other labourer. P.W. 9 also reached the place of occurrence after hearing 'Hulla' of the dacoity. P.W. 11 is the I.O. of the case. P.W. 12 is a formal witness. Defence has also examined four witnesses to prove that there was some dispute be-tween the informant, Somar Yadav and the appellant, Suba Yadav on the question of opening of door towards the south of the house which was objected by the appellants. The said dispute was settled by the intervention of the Panchas.
7. On the point of identification, prosecution examined three witnesses, who were inside the house, P.Ws. 1 and 2 were sleeping together and identified all the dacoits. P.W. 5 identified all the appellants. All the witnesses have also stated that the face of the dacoits were painted by black colour and even then they identified them in the torch light, flashed by the dacoits. P.Ws. 3, 8 and 10, who were on the Dalan of the house actually did not see the commission of dacoity being committed but some of the dacoits first encountered them and tied their hands and legs with Gamacha. They saw some of the dacoits but they did not identify any of them.
8. However, P.Ws. 3 and 8 have stated that inmates of the house informed them that they identified the appellants among the dacoits. Two villagers were examined by the prosecution are P.Ws.4 and 6. They are witnesses to the exhibits and they have not stated about the names of the appellants. Their evidences has nothing to do with the identification of appellants.P.W. 8, the informant though at paragraph 17 of'his deposition has stated that he reached at Police Station in the morning but it is surprising that the fard beyan was recorded at 2 p.m. and no proper explanation for the delay has been given. It is also important to note that they had not disclosed the name of the dacoits to any of the villagers as it appears from the deposition of P.W. 3 (paragraph 10) of his deposition. The case of the prosecution is that the appellants were belonging to the same village and were next door neighbours and committed dacoity concealing their identity by merely painting their faces. No previous enimity was disclosed in the fard beyan. The prosecution did not disclose eminent enimity between parties which can be considered as motive of the crime. It is not probable that the neighbourer who choose to commit the crime even he had enimity to settle with the neighbourer would himself participate in the crime. Rather in such case where there is enimity, usually a neighbourer would set up other persons to get the crime committed. It was bounded duty of the prosecution to prove the motive to commit crime by the known neighbourer appellants. Non-discloser of motive, coupled with delay in lodging the F.I.R. and also non-discloser of identity of appellants to the villagers, who came there soon after the occurrence, makes the prosecution case doubtful with possibilities of false implecation of appellants. Even the means of identification as alleged the flashing of torch is not sufficient enough to identify the appellants in the dark hour of night. On such week identification coupled with other .circumstances as mentioned it will not be safe to convict the appellants, who does not have any criminal history.
In view of the above, the appellants deserve benefit of doubts and they are acquitted of the charges levelled against them on giving benefits of doubt. Conviction and sentences, passed by the Court below accordingly is set aside and the appellants are acquitted and they are discharged from the obligations of their bail bonds. In the result, this appeal is allowed.