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Judgment
Heard learned counsel for the appellant and learned counsel for the State.
The instant Criminal appeal is directed the judgment of conviction dated 26.02.2004 and order of sentence dated 27.02.2004, passed in Sessions
Case No.28 of 1991 (arising out of Govindpur P.S. Case No.260 of 1988 corresponding to G.R. No.2357 of 1988) by the learned Addl. District &
Sessions Judge, Fast Track Court-III, Dhanbad, whereby the sole appellant, Babulal Murmu has been convicted for the offence committed under
Section 458 of the Indian Penal Code and awarded rigorous imprisonment for 5 years and a fine of Rs.2,000/- and also for the offence under
Section 323 I.P.C., awarded rigorous imprisonment for one year and both the sentences are directed to run concurrently. However, the appellant has
been acquitted for charge under Section 307 I.P.C...
Against the aforesaid judgment of conviction and order of sentence, the instant appeal has been preferred before this Court.
The prosecution case, as alleged, in the First Information Report submitted by the informant, Yamuna Prasad Singh on 14.10.1988 alleging therein
that on 13.10.1988 at 1.30 a.m. in the night, 2-3 persons came at the door and raised hulla, upon which his wife, Hit Kumari (P.W.1) opened the door
and thereafter the accused persons entered into the house. They assaulted the informant by lathi and stone on the head and mouth of the informant,
who became injured and fell down. On raising hulla by his wife, the accused persons fled away. The informant has alleged against Naresh Singh,
regarding land dispute for the last 10-15 days as he did not want to sell out the same. The informant has suspicion that persons of Naresh Singh have
committed such offence by entering into the house in late night.
    On the basis of the written report of the informant, the Police instituted Govindpur P.S. Case No.260 of 1988 (dated 13.10.1988) under
Sections 452/323/307 of the Indian Penal Code.
After investigation, the Police submitted charge-sheet videCharge-sheet No.203 of 1988 dated 31.10.1988 under Sections 458/307/323 of the Indian
Penal Code against Abul Kalal Ansari and Babu Lal Murmu.
Cognizance of the offence has been taken and the case has beencommitted to the Court of Sessions, where charge has been framed against both
the accused, Abul Kalal Ansari and Babulal Murmu under Sections 307, 458 and 323 of the Indian Penal Code on 3rd June, 1992. But subsequently,
Abdul Kalal Ansari left pairvi in this case, thus his case has been separated from present appellant.
The prosecution in order to prove its case has examined altogether5 witnesses and also adduced a number of documents which have been
exhibited.
    Hit Kumari, wife of the informant has been examined as P.W.1. She is an eye-witness to the occurrence. During examination in chief, she
has stated that she could identify two persons who have entered into the house as Abul Kalal Ansari and Babulal Murmu and assaulted her husband
with stone and danda but after arrival of the neighbourers, the accused persons fled away. She has further stated at paragraph 2 of her
examination-in-chief that the accused persons were locked in a room, but subsequently they have broken the door and fled away. She has further
stated at Para3 of her examination in chief to the extent that when Police officer came and thereafter she came to the Police Station. During
crossexamination at Para-6, it appears that this witness along with her husband went to the Police Station where she disclosed the names of the
accused persons. She has been given suggestion that because of some disputes with regard to cattle grazing, the accused persons have been
implicated falsely.
Learned counsel for the appellant has submitted that the statements of witness, P.W.1- Hit Kumari is not reliable. If she has identified the accused
persons and disclosed the name of the accused persons then there is no reason why F.I.R. has been lodged against unknown showing suspicion
against one Naresh Singh.
Learned counsel for the appellant further submitted that admittedly from perusal of Paragraph-6 of cross-examination, her presence at the time of
lodging F.I.R. signed by her husband at the Police Station, is apparent and as such, her statement is subsequent thought, cannot be accepted for
convicting the appellant under Sections 458 and 323 of the Indian Penal Code, to which learned counsel for the State has submitted that the witness
has disclosed the name at the very inception and as such, her statement cannot be disbelieved.
Jyoti Shankar Singh has been examined as P.W.2. He is anhearsay witness.
Yamuna Prasad Singh is the informant and the victim of the case has been examined as P.W.3. He proved his ‘fardbeyan’ as Exhibit1. This
witness has stated that he could not identify any accused persons as the accused persons have flashed torch light on his eyes. This witness has
categorically stated at Para-5 of his crossexamination that he has neither dispute with Naresh Singh nor he has identified Naresh Singh and it has been
wrongly mentioned in the ‘fardbeyan’ that he has dispute with Naresh Singh. This witness has further stated at Para-6 of his cross-examination,
that he has no knowledge that Abul Kalal has any land near shop of this witness nor it is true that the cattle of Abul has destroyed the crops.
Learned counsel has stated that on perusal of the entire evidenceof P.W.3 (informant), nothing is against the appellant. To which, learned counsel
for the State has also not disputed the aforesaid fact.
Baban Singh, I.O. of the case has been examined as P.W.4 andproved the endorsement on F.I.R. by Constable, Kanhaiya Upadhyay as Exhibit-2.
He proved formal F.I.R. as Exhibit -3. This witness has stated that the accused has been arrested at the statement of the wife of the informant in
which she has taken name of the accused persons. This statement of the witness during examination in chief has been recorded with objection. This
witness has categorically stated in his cross-examination that he could not identify the accused persons because of long lapse of time.
Learned counsel for the appellant has submitted that suchstatement of the informant and the I.O. cannot be accepted as the I.O. has not
investigated the case properly by scrutinizing the statement of the lady who was present at the time recording of F.I.R. but name of such persons have
not been mentioned in the F.I.R. Under such circumstances, Investigating officer ought to have been cautious during investigation. But the I.O. has
completely failed in discharging his duty during investigation by collecting material for proper corroboration.
Learned counsel for the State has submitted that since the nameof the accused persons have been taken by the witness and as such, Investigating
officer was justified in submitting charge-sheet against the accused persons.
Tarapado Kumar, Advocate Clerk has been examined as P.W.5.This witness being formal witness and has proved the injury report of the
informant which has been issued by Dr. V. K. Verma and proved the same as Exhibit-4.
After closure of the prosecution evidence, the statement of theaccused/appellant was recorded under Section 313 Cr.P.C. where he has denied
the evidence against him. No evidence was adduced by the defence.
It has been submitted by the learned counsel for the appellant Mr.Gautam Kumar that the appellant has been falsely implicated in this case as
there is no cogent material as against him even the name of the appellant has not been figured in the First Information Report and only on the basis of
the subsequent statement of the wife of the informant, the appellant has been made accused. On perusal of the First Information Report, it appears
that there is some suspicion against one Naresh Singh, but the wife of the informant has taken name of two persons including the appellant during
investigation. Although at the time of lodging of the FIR as it appears from Para-3 of the examination in chief and para-6 of the cross-examination that
the witness, Hit Kumari, wife of the informant was present at the time of lodging of the First Information Report, but name of no such person has
been figured in the First Information  Report  and as such, without having any material on such ground, the appellant cannot be convicted
under Sections 458 and 323 of the Indian Penal Code and as such, the impugned judgment of conviction and order of sentence is fit to be set aside by
this Hon’ble Court.
Learned counsel for the State, Mr. Rakesh Kumar, AdditionalPublic Prosecutor has vehemently argued and submitted that the impugned judgment
of conviction and order of sentence is justified and requires no interference from this Hon'ble Court as the trial court has rightly convicted the
appellant under Sections 458 and 323 I.P.C. as P.W.1 has taken the name of two accused persons before the I.O. Learned APP has fairly
submitted that name of these two persons ought to have figured in the First Information Report as P.W.1 was present at the time of lodging of the
F.I.R.
Heard Mr. Gautam Kumar, learned counsel for the appellant andMr. Rakesh Kumar, Learned APP on behalf of the State and on perusal of the
records, it appears that only material which is against the appellant is the statement of P.W.1 (Hit Kumari) who is wife of the informant. It appears
from the record that P.W.1 was present at the time of lodging of the F.I.R., but the name of the appellant has not been mentioned in the F.I.R. rather
some suspicion has been shown towards one Naresh Singh, who has been subsequently absolved from such allegation made by the informant himself
during cross-examination. When the name of the appellant was taken in the Court by P.W.1 during examination-in-chief, an objection was made and
the learned trial court has recorded the same with objection and as such, prosecution was duty bound to prove its case beyond all reasonable doubt
against appellant, which the prosecution has miserably failed.
 19. For the aforesaid reasons, this Court is of the opinion that the conviction of the appellant under Sections 458 and 323 I.P.C. cannot sustain in the
eyes of law as the testimony of P.W.1 is not worth to accept as a truth and there is no other material against the appellant and as such, the impugned
judgment of conviction dated 26.02.2004 and order of sentence dated 27.02.2004, passed in Sessions Case No.28 of 1991 (arising out of Govindpur
P.S. Case No.260 of 1988 corresponding to G.R. No.2357 of 1988)Â by the learned Addl. District & Sessions Judge, Fast Track Court-III, Dhanbad
is hereby set aside.
Consequently, the appellant who is on bail, is discharged from the liability of bail bonds.
In the result, this appeal stands allowed.
Let the L.C.R. be sent to the concerned Trial Court along with acopy of this judgment at once.Â