Deep Narayan Yadav & Ors. vs The State of Bihar

Heard learned counsel for the appellants, learned counsel for the informant and learned APP for the State on this criminal appeal.

This criminal appeal has been preferred against the Judgment and Order of conviction dated 09.09.2013 and order of sentence dated 11.09.2013

passed by Adhoc Additional District and Sessions Judge-IV, Madhepura in Sessions Trial No. 169 of 1999 arising out of Dhailadh (Madhepura) P.S.

Case No. 48 of 1991, whereby the learned trial court acquitted the accused Shambhu Chaudhary, Nago Yadav, Matar Yadav, Jagdish Yadav,

Jakshan Yadav and Ishwar Yadav while convicted the accused Nageshwar Yadav, Khushar Yadav, Deep Narayan Yadav, Satto Yadav,

Dharichchan Yadav and Dinehs Yadav under Sections 395 and 397 of the Indian Penal Code and sentenced them to undergo R.I. for seven years

under Section 395 of the Indian Penal Code and also sentenced them to undergo R.I. for seven years under Section 397 of the Indian Penal Code. All

the sentences were directed to run concurrently.

Factual matrix of the case is that Dhailadh (Madhepura) P.S. Case No. 48 of 1991 was instituted under Sections 395 and 397 of the Indian Penal

Code against the accused persons, namely, Khushar Yadav, Tarni Yadav, Ishwar Yadav, Misher Yadav, Nago Yadav, Satto Yadav, Nageshwar

Yadav, Dinesh Yadav, Deep Narayan Yadav, Dharichchan Yadav, Shambhu Chaudhary, Jagdish Yadav, Tufani Yadav, Lal Bahadur Rai, Matar

Yadav, Jakshan Yadav and Lelhu Yadav on the basis of the fardbeyan of Chandeshwari Yadav, Son of late Gosai Yadav recorded by Mridula

Kumari, O/c P.S. Dhailadh on 06.03.1991 at 08:05 AM at P.S. Dhailadh with the allegation in succinct that in the night of 06.03.1991 at around 1 AM,

he listened sound of help from the western side. Responding hulla, he stepped out of his house and awaked his neighbours Surendra Yadav, Brahmdeo

Yadav, Bhupendra Yadav and others and rushed to the aforesaid place flashing torch. When they arrived near the field located towards the east of

the door of Narayan Yadav, they witnessed 15-20 miscreants armed with lathi, bhala, farsa, arrow, 303, etc. in the torch light. He identified Khusar

Yadav, Tarni Yadav, Ishwar Yadav, Misher Yadav, Nago Yadav, Satto Yadav, Nageshwar Yadav, Dinesh Yadav, Deep Narayan Yadav,

Dharichhan Yadav and Shambhu Chaudhary in torch light while he could not identify rest seven-eight persons. He witnessed the aforesaid accused

persons assaulting Butan Yadav @ Deo Narayan by means of farsa at the door of Narayan Yadav. Then they proceeded further making hulla

whereupon one of the dacoits resorted firing upon them and then they retreated scaringly. After assaulting, the accused persons went towards west.

Then they went to see Deo Narayan. Aforesaid accused persons regressed there after a while and chased them resorting firing and committed

dacoity in his house. After their departure, he found cash, attires, jewelry and other articles plundered by them. Kamal Yadav divulged him that the

accused persons committed dacoity in his house after assaulting Butan Yadav and looted away cash, jewelry, etc. from his house. He noticed Butan

Yadav seriously injured and rushed him to the police station. The bone of contention is said to be land dispute between him and Butan Yadav and

Khushar Yadav and his aforementioned brothers.

Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against seventeen accused persons

under Sections 395 and 397 of the Indian Penal Code. Out of them, Lal Bahadur Rai, Tufani Yadav and Lelhu Yadav passed away before trial while

Misher Yadav passed away after framing of charge and record of Tarni Yadav was split up.

On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused

persons and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of Adhoc Additional

District and Sessions Judge-IV, Madhepura for trial.

Charge against the accused persons was framed under Sections 395 and 397 of the Indian Penal Code. Charge was read over and explained to

them to which they pleaded not guilty and claimed to be tried.

To substantiate its case, in ocular evidence, the prosecution has examined altogether thirteen prosecution witnesses, namely, Md. Hafiz as PW-1,

Kusum Lal Prasad Yadav as PW-2, Injured Deo Narayan Yadav @ Butan Yadav as PW-3, Narayan Yadav as PW-4, Vidyanand Yadav as PW-5,

Informant Chandeshwari Yadav as PW-6, Saburi Yadav as PW-7, Kamal Yadav as PW-8, Deo Narayan Yadav as PW-9, I.O. Mridula Kumari as

PW-10, Rajia Devi as PW-11, Suhagi Devi as PW-12 and Dr. Nand Kishore Vidyarthi as PW-13. Out of the aforesaid witnesses, PW-1 and PW-9

happen to be formal witnesses while PW-2 turned hostile. Prosecution has also filed and proved some documents by way of documentary evidence in

the case.

Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial

of the occurrence. In buttress of their case, in ocular evidence, the accused persons have examined five witnesses, namely, Brahmdeo Mandal as

DW-1, Surendra Yadav as DW-2, Dinesh Chaudhary as DW-3, Bhupendra Yadav as DW-4 and Radheshyam Yadav as DW-5. In documentary

evidence, they have also filed and proved some documents.

After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as

detailed in the earlier paragraph.

Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred the present

Criminal Appeal.

The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants

beyond all reasonable doubts or not.

It is submitted by learned counsel for the appellants that actually the case is of allegedly assaulting Dev Narayan Yadav @ Butan Yadav by the

accused persons as the accused persons are said to have assaulted the said victim who was sleeping in the barandah of Narayan Yadav by opening

his face and identifying him. Had the accused persons intended to commit dacoity, they would have also committed dacoity in the house of Narayan

Yadav where the said victim was sleeping. It is further submitted that no offence under Section 397 IPC is made out as the occurrence of assault

upon Dev Narayan Yadav @ Butan Yadav is said to have been made first of all and then accused persons are said to have committed dacoity in the

several houses. While under Section 397 IPC, the occurrence of assault takes place on protest made by the person in the course of dacoity. It is

further submitted that so far as dacoity in the house of Butan Yadav, Chandeshwari Yadav and Kamal Yadav is concerned, Butan Yadav was not

present in his house at the time of occurrence rather was sleeping in the barandah of Narayan Yadav and as per the statement of his wife, she had

rushed there to save her husband by lying down on her at the time of occurrence and no other inmate of the said house had supported the occurrence

while Chandeshwari Yadav and Kamal Yadav have also failed to establish the occurrence of dacoity in their respective houses as they do not happen

to be eye witness of the occurrence and other witnesses examined by the prosecution regarding dacoity are the hearsay witnesses. Hence offence of

dacoity also does not stand established by the prosecution. So far as assault upon Dev Narayan Yadav @ Butan Yadav is concerned, there is vital

contradiction between the statement of the aforesaid victim and that of his wife and injury report and wife of the informant also does not appear to be

eye witness of the aforesaid assault. As per the prosecution case, at the time of assault upon Butan Yadav, he was alone there and only he had

sustained injury while as per the statement of his wife, she was also present there and had laid down on her husband in order to save him and

sustained injury. Thus occurrence of assault upon Butan Yadav also does not stand established by the prosecution. It is further submitted that the

witnesses have claimed to have identified the accused persons in the torch light as it was dark night at the time of occurrence, but the source of

identification i.e. torch has neither been produced by the witnesses before the I.O. nor it was seized by the I.O., hence source of identification does

not stand established and it was not possible to identify the accused persons in the occurrence in the mid of the dark night. It is further submitted that

as per the witnesses account, accused persons happen to be brothers and pre-acquaintance of the witnesses, but they had not covered their face at

the time of occurrence though they had selected mid dark night to commit the occurrence which is against the natural course of conduct and creates

serious doubt about the prosecution case. Thus the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home

the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence ocular and

documentary evidence. Hence, the Judgment and order of conviction and sentence passed by learned Trial Court is liable to be set aside and the

appellants are entitled to be acquitted.

On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence

submitted that all the material witnesses examined by the prosecution have unanimously supported the occurrence of dacoity in the house of Butan

Yadav, Kamal Yadav and Chandeshwari Yadav and occurrence of assault upon Butan Yadv during the course of dacoity and the learned trial court

correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence

which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed.

From perusal of the record, it appears that to substantiate its case, in ocular evidence, the prosecution has examined eight material witnesses of the

case. Out of them, PW-3 Deo Narayan Yadav @ Butan Yadav happens to be injured. From perusal of the testimony of the said witness, it appears

that he has supported the occurrence of assault made upon him by means of farsa, garasa, lathi, etc. by the accused persons in the Barandah of

Narayan Yadav and committing of dacoity by them in the house of Kamal Yadav, Chandeshwari Yadav and in his own house. But he does not

happen to be eye witness of the commitment of dacoity by the appellants in his house and in the house of Kamal Yadav and Chandeshwari Yadav as

in Para-2 of his examination-in-chief, he has stated that sustaining injury at the hand of the accused persons he fell senseless then the accused persons

intruded into his courtyard. Half an hour later to the departure of the accused persons, his wife and daughter came to him and divulged him committing

of dacoity in his house by the accused persons, but daughter of the said witness has not been examined by the prosecution while wife of the said

witness has not corroborated the factum of divulgence of aforesaid occurrence of dacoity in her house by the accused persons to the said witness.

Regarding commitment of dacoity in the house of Kamal Yadav and Chandeshwari Yadav by the accused persons, he has stated in para-3 of his

examination-in-chief that he learnt about aforesaid occurrence in Madhepura Hospital, but he has not disclosed the name and identity of source of

information and none has come forward to corroborate the factum of divulgence of the aforesaid facts to the said witness. Hence for want of

corroboration, aforesaid statement of PW-3 regarding committing dacoity by the accused persons in his house and also in the house of Kamal Yadav

and Chandeshwari Yadav is not admissible in evidence even as a hearsay evidence. Moreover, said witness has stated in his examination-in-chief that

his wife and daughter came to him half an hour later to the departure of the accused persons after assaulting him and divulged the occurrence of

committing dacoity in his house by them, but in Para-11 of his cross-examination, he has stated that he regained sense 1-2 hours later in the baithaka

of Narayan Yadav. Aforesaid statement of PW-3 indicates that he had fallen senseless after assault made upon him and regained sense 1-2 hours

later thereto. Then how divulgence of the occurrence of committing dacoity in his house to him by his wife and daughter in half an hour of the

occurrence after the departure of the accused persons after assaulting him had been made? Hence said witness appears to be telling lie. Moreso, said

witness has denied to have identified accused Misher Yadav, Ishwar Yadav and Jakshan Yadav in the occurrence before the Court in the dock, but

Misher Yadav and Ishwar Yadav happen to be own brothers of the said witness. In Para-5 of his cross-examination, he has further denied the

complicity of the accused Misher Yadav and Ishwar Yadav in the occurrence. Thus, the said witness appears to have intentionally denied to identify

his aforesaid brothers in the occurrence before the Court and has made an abortive bid to misguide the court by telling lie in a bid to save his brothers

and thus he appears to be dam liar and does not appear to be reliable and trustworthy witness. More so, aforesaid statement of PW-3 that Ishwar

Yadv and Misher Yadav were not involved in the occurrence rules out witnessing of the occurrence by informant and other witnesses examined by

the prosecution and also creates serious doubt about credential of the aforesaid witnesses as informant and other witnesses have named aforesaid

persons also in the occurrence in their respective examination-in-chief.

PW-3 in Para-10 of his cross-examination has stated that baithaka of Narayan Yadav in which he was sleeping at the time of occurrence is facing

south and surrounded by mud wall and no gate was fixed in the baithaka. There is passage of 2½-3 hands to enter in the baithaka on its Southern

side and said baithaka is open by 10 hands towards East. He was sleeping in the said baithaka on the chauki near its western wall. Aforesaid

statement of PW-3 indicates that baithaka of Narayan Yadav is surrounded by the wall and there is gate towards south of it while there is open place

of 10 hands towards East. But informant has stated in his fardbeyan that he and other witnesses named in the F.I.R. witnessed the accused persons

assaulting Butan Yadav (PW-3) at the door of Narayan Yadav and they witnessed the occurrence from near the field located towards East of the

door of Narayan Yadav. Hence, the aforesaid statement of PW-3 rules out witnessing of the occurrence of assaulting him by the accused persons by

them. As firstly PW-3 was sleeping in the baithaka of Narayan Yadav and not at his door. Secondly, open door of baithaka is located towards South

and not towards East and the said witness was sleeping on the chauki adjacent to the Western wall of the baithaka and it is not possible to witness him

from the alleged door of the baithaka from the field located towards east of the door. Said witness also appears to be on inimical terms with the

accused Deep Narayan Yadav as in Para-25 of his cross-examination, he has stated that Deep Narayan Yadav had also lodged a case against him in

which he went to jail. In the said case, Chandeshwari and Narayan were also accused.

As per the account of PW-3 Deo Narayan Yadav @ Butan Yadav, he was sleeping in the baithaka of Narayan Yadav alone at the time of

assaulting him by the accused persons, but in quite contradiction to the said statement, Narayan Yadav (PW-4) and Saburi Yadav (PW-7) have stated

in their respective examination-in-chief that Saburi Yadav was also sleeping with Butan Yadav on the same chauki at the time of occurrence.

Narayan Yadav and Butan Yadav have stated that they were sleeping in the baithaka of Narayan Yadav while Saburi Yadav has stated that he was

sleeping at his door. Thus, aforesaid witnesses have given statement in quite contradiction to each other regarding the aforesaid aspect of the case.

Regarding occurrence of dacoity in the house of Butan Yadav, Kamal Yadv and Chandeshwari Yadav, PW-4 has stated in Para-2 of his examination-

in-chief that when he arrived near Butan Yadav after the occurrence, his wife divulged him that the accused persons also assaulted her and looted

away articles from her house. Villagers also arrived there and divulged him that accused persons also committed dacoity in the house of Kamal Yadav

and Chandeshwari Yadav. He has not disclosed the name and identity of the source of aforesaid information. Moreover neither the wife of Butan

Yadav nor any other villager has corroborated the factum of divulgence of the occurrence of dacoity in the house of Butan Yadav, Kamal Yadav and

Chandeshwari Yadav to the said witness. Thus the aforesaid statement of said witness remains uncorroborated and said uncorroborated evidence of

the aforesaid witness is not admissible in evidence even as a hearsay evidence on the aforesaid aspect of the case. Moreover, said witness has

claimed to have witnessed the occurrence of assaulting Butan Yadav by means of farsa, bhala, lathi, etc. from his window and after departure of the

accused persons, he arrived near Butan Yadav and wife of Butan Yadav divulged him that the accused persons also assaulted her and committed

dacoity in his house. But Butan Yadav (PW-3) has stated in his examination-in-chief that his wife and daughter had arrived at the aforesaid place half

an hour later to the departure of the accused persons after assaulting him. Hence, the aforesaid contradiction between the statement of PW-3 and

PW-4 creates serious doubt about the credential of PW-4 regarding witnessing of the occurrence of assault upon Butan Yadav by the accused

persons by him. Said witness also appears to be on inimical terms with Deep Narayan Yadav as in Para-3 of his cross-examination, he has stated that

Deep Narayan Yadav has filed a criminal case against him. He has stated in Para-10 of his cross-examination that he had witnessed 15-20 cut injuries

on the person of Butan Yadav, but from the perusal of the injury report of Butan Yadav, it appears that he had sustained only eight sharp cut injury on

his person. Aforesaid aspect of the case also goes to rule out witnessing of the occurrence of assault upon Butan Yadav by the said witness.

Attention of the said witness has been drawn by the defence in para-12 of his cross-examination regarding contradiction between his statement given

before the court and that given before the I.O. under Section 161 Cr.P.C. in respect of his presence in his courtyard house at the time of occurrence,

assaulting Butan Yadav by means of farsa, bhala, lathi, etc. by the accused persons and identification of the accused Deep Narayan Yadav in the

torch light. I.O. (PW-10) in Para-46, 47 and 48 of her cross-examination has corroborated the aforesaid contradiction between his statement given

before the Court and that given before her under Section 161 Cr.P.C. regarding aforesaid material aspect of the case. Hence, said witness appears to

have taken altogether different stand in the Court regarding aforesaid aspect of the case and does not appear to be worth credence and reliable

witness.

PW-5 Vidyanand Yadav has stated in his examination-in-chief about witnessing the accused persons assaulting Butan Yadav in the torch light, but

the said witness appears to be on inimical terms with the accused persons as in Para-3 of his cross-examination, he has stated that Sikendra Yadav

had filed a case of assault in the year 1986 in which he had given statement against Butan Yadav. Khusher Yadav was also accused in the said case.

He has further stated that he has given statement in the case lodged by Natai Yadav in favour of Natai Yadav. Deep Narayan Yadav was also

accused in the said case. He has also stated that Ishwar Yadav has lodged a criminal case against him in the year 1986. In Para-15 of his cross-

examination, he has further stated that accused Deep Narayan Yadav had filed a criminal case against him in the year 1998 in which Butan, Kamlesh,

Mishrilal, Narayan and Chandeshwari Yadav were also accused persons.

PW-6 Chandeshwari Prasad Yadav in his examination-in-chief has stated about witnessing the occurrence of assault upon Butan Yadav @ Deo

Narayan Yadav by the accused persons and committing dacoity in his house and in the house of Kamal Yadav. But in Para-3 of his cross-

examination, he has stated that when the accused persons entered into his house, he was not present in his house at that time. In Para-4 of his cross-

examination, he has stated that he was witnessing the occurrence in the torch light from the field in front of the door of Narayan Yadav. Aforesaid

statement of PW-6 indicates that he had not witnessed the occurrence of committing dacoity in his house by the accused persons as he was not

present in his house at that time and house of Kamal Yadav is located in another tola. None has also divulged him about commission of the dacoity in

his house and in the house of Kamal Yadav by the accused persons. Said witness also appears to be on inimical terms with the accused persons as in

para-5 of his cross-examination he has stated that he had purchased land in the name of his son from Natai Yadav in the year 1990 and said Natai

Yadav again sold out said land to Ramadhin Yadav and Deep Narayan Yadav is a witness in the aforesaid sale deed of Ramadhin Yadav. In Para-6

of his cross-examination, he has further stated that Ishwar Yadav has lodged a case against him, Narayan and Sikendra. Accused Deep Narayan

Yadav has also lodged a case against him.

PW-7 Saburi Yadav has made an abortive bid to support the occurrence of assaulting Butan Yadav by the accused persons and witnessing of the

aforesaid occurrence by him as an eye witness of the occurrence claiming himself sleeping with said Butan Yadav on his chauki at the time of

occurrence, but informant and Butan Yadav have not stated about sleeping of the Saburi Yadav with Butan Yadav on the same chauki at the time of

occurrence of assault upon Butan Yadav. Said witness further stated in Para-1 of his examination-in-chief that the accused persons pressed his neck

and neck of Butan by means of phatta of bamboo. Deep Narayan Yadav snatched his wrist watch by extending threatening of dire consequence to

him. On making hulla by him, wife and sons and others rushed there, but there is no such case of the prosecution and neither the informant and nor

any other witness examined by the prosecution has corroborated the aforesaid statement of PW-7. Thus, PW-7 appears to have given altogether

contradictory statement regarding aforesaid aspect of the case and is not worth reliable. Regarding the occurrence of committing dacoity in the house

of Kamal Yadav and Chandeshwari Yadav, the said witness appears to be hearsay witness as in Para-1 of his examination-in-chief, he has stated that

later on he learnt that accused persons have committed dacoity in the house of Kamal and Chandeshwari, but he has neither disclosed the name and

identity of the source of the information nor anyone has come forward in corroboration of the divulgence of the aforesaid facts to him and the

aforesaid uncorroborated statement of the said witness regarding the aforesaid aspect of the case is not admissible in evidence even as a hearsay

evidence. Said witness in Para-13 of his cross-examination has stated that he had talked with Butan only at the place of occurrence, but as per

account of said Butan, he fell senseless sustaining injury inflicted to him by the accused persons and regained sense 1-2 hours later. Hence, the

aforesaid statement of PW-7 creates serious doubt about his credential and truthfulness.

Attention of the said witness has been drawn by the defence in Para-14 of his cross-examination regarding contradiction between his statement

given before the Court and that given before the I.O. under Section 161 Cr.P.C. in respect of snatching of the wrist watch from his hand by Deep

Narayan Yadav extending threatening of dire consequence, pressing his neck and that of Butan Yadav by means of phatta of bamboo by the accused

persons and giving order by Deep Narayan Yadav to the accused persons for elimination of Butan Yadav. I.O. (PW-10) in Para-52 of his cross-

examination has also corroborated the aforesaid contradiction between the statement of said witness given before the Court and that given before her

under Section 161 Cr.P.C. regarding aforesaid material aspect of the case. Hence, PW-7 appears to have taken altogether different stand before the

court regarding aforesaid material aspects of the case and hence, he does not appear to be worth credence and reliable witness. Said witness also

appears to be inimical to accused persons as in Para-20 of his cross-examination, he has stated that his brother Sikendra had lodged a case in the year

1986 against Khusher, Ishwar and Misher and he was witness in the said case.

PW-8 Kamal Yadav though declared hostile by the prosecution, but in his examination-in-chief he has supported the occurrence of dacoity in his

house by the accused persons and looted away the documents, cash, jewelry, etc. from his house, but in Para-5 of his cross-examination by the

defence, he has stated that he listened hulla of dacoity in his house and his nephew Dinesh informed him about said dacoity. In Para-6 of his cross-

examination, he has further stated when the dacoit arrived at his door, he rushed to the rear s ide of his house and in para-8 of his cross-examination,

he has stated that he arrived in his house half an hour later to the departure of the accused persons after dacoity. From perusal of the said statement

of the aforesaid witness, it appears that he has not witnessed the occurrence of dacoity in his house by the accused persons rather is a hearsay

witness. He is said to have listened the occurrence of dacoity by the accused persons in his house by his nephew Dinesh, but Dinesh has not come

forward to corroborate the factum of divulgence of the aforesaid occurrence to the said witness. Hence, aforesaid uncorroborated statement of the

said witness is not admissible in evidence even as a hearsay evidence of the occurrence of dacoity in his house.

PW-11 Rajia Devi has stated about occurrence of commitment of dacoity in her house by the accused persons and identification of the accused

Tarni Yadav, Khusher Yadav and Dharichchan Yadav in the occurrence by her in the torch light, but in the said Para she has stated that accused

persons assaulted her mother-in-law Gulabo Devi in the occurrence of dacoity, but there is no such case of the prosecution of assaulting Gulabo Devi

by the accused persons in the occurrence.

As per the prosecution case, all the accused persons named in the F.I.R. committed dacoity in the house of Butan, Kamal and Chandeshwari, but

PW-11 has stated in Para-2 of her cross-examination that the accused Nago Yadav, Ishwar Yadav, Shambhu Chaudhary and Jagdish Yadav are her

co-villagers and she had not witnessed them in the occurrence of dacoity in her house. From perusal of the aforesaid statement of PW-11, it appears

that she is intentionally saving aforesaid accused persons as they happen to be her co-villagers and she is telling lie. The said witness also appears to

be on inimical terms with the accused persons as in Para-12 of her cross-examination, she has stated that she has animosity with accused Khusher

and Dharichchan at the time of occurrence. Moreover, in Para-16 of her cross-examination, she has stated that when there was hulla of dacoity, she

rushed at the door and then hided on the rear side of her house. I.O. in Para-53 of his cross-examination has stated that the witness Rajia Devi had

not divulged her the factum of witnessing the occurrence by herself rather she had divulged that she had hided herself on rear side of her house and

stepped out from there after departure of the accused persons. Aforesaid statement of PW-11 and I.O. indicates that the said witnesses had not

witnessed the occurrence of dacoity in her house by the accused persons and had not identified any accused persons in the occurrence as when she

listened the hulla of dacoity she rushed on the rear side of her house and got herself hided there. Contradiction of the aforesaid witness in Para-25 of

her cross-examination has been drawn by the defence regarding her statement given before the Court and that given before the I.O. under Section

161 Cr.P.C. in respect of identification of Khusher, Dharichchan and Tarni Yadav in the torch light in the occurrence. I.O. in Para-53 of her cross-

examination has also corroborated aforesaid contradiction. Hence, the said witness appears to have taken altogether different stand in the court

regarding aforesaid material aspect of the case and she does not appear to be worth credence, trustworthy and reliable witness.

PW-12 Suhagi Devi who happens to be wife of Deo Narayan Yadav @ Butan Yadav has made an abortive bid to support the prosecution case of

assaulting her husband by the accused persons and committing dacoity in her house by them, but in Para-1 of her examination-in-chief itself, she has

stated against the prosecution case and statement of the informant. As as per the prosecution case, none had tried to save the victim rather witnesses

had arrived at him after departure of the accused persons and as per the prosecution case, accused persons assaulted only Butan Yadav @ Deo

Narayan Yadav there. As per the statement of Butan Yadav, his wife had arrived half an hour later to the assault made upon him, but in said para,

PW-12 has stated that on arriving at the door of Narayan Yadav listening hulla, she witnessed the accused persons assaulting her husband then she

laid down on her husband in order to save him and sustained injury in her hand, leg, waist and back, etc. Sustaining injury, she fell senseless. In the

said Para, she has further stated that on regaining sense, she learnt that the accused persons looted away attire, ornaments and other articles from her

house. Aforesaid statement of PW-12 also indicates that she does not happen to be eye witness of the occurrence of dacoity in her house rather

hearsay witness of the same and she has also not disclosed the source of information of the said occurrence to her. Said witness also does not appear

to be worth credence and reliable witness as in Para-1 of her examination-in-chief, she has stated that when she laid down on her husband in order to

save him, accused persons assaulted on her hand, leg, waist and back resultantly she fell senseless, but in quite contradiction to the aforesaid

statement, she has stated in Para -11 of her cross-examination that when she laid down on her husband to save him, the accused persons slapped on

her ear. In Para-1 of her examination-in-chief, she has stated that on listening hulla at the door of Narayan Yadav and on witnessing the occurrence

of assault made upon her husband by the accused persons, she laid down on him in order to save him and sustained injury on various parts of her

person at the hand of the accused persons, but in quite contradiction to the said statement, in Para-17 and 18 of her cross-examination, she has stated

that at the time of occurrence, she was sleeping in her room. She was suffering from fever and she was lying there as it is. Later on Kamal took her

out. The aforesaid statement of PW-12 rules out witnessing of occurrence of assault upon her husband by the accused persons. She does not appear

to have witnessed her assailant as in Para-27, 28 and 29 of her cross-examination, she has stated that when she arrived at the aforesaid place,

accused started assaulting her from the back side, she fell down and fell senseless. She regained sense in Madhepura Hospital. She interacted with

her family members on regaining sense, but none had divulged her name of the accused persons and she had also not divulged the name of any

accused persons to them.

From perusal of the testimony of the material witnesses, it appears that all the material witnesses have unanimously stated that they identified the

accused persons assaulting Butan Yadav in the torch light. As per the account of PW-7 as made in Para-11 of his cross-examination, it was dark

night at the time of

occurrence and there was no light in the house i.e. at the place of occurrence. Aforesaid statement of PW-7 eloquently indicates that it was dark night

at the time of occurrence and there was no light there. The occurrence is of 1 PM in the night, thus the only source of identification of the accused

persons was the torch light as per the statement of the witnesses and without aforesaid source of identification, it was not possible to identify the

accused persons in such a dark mid-night. But the said torch was not produced before the I.O. and as per the account of I.O. (PW-10) made in Para-

16 of her cross-examination, she did not seize any torch. Thus the source of identification which was allegedly torch does not stand established by the

prosecution.

So far as the occurrence of dacoity in the house of Butan Yadav, Chandeshwari Yadav and Kamal Yadav by the accused persons is concerned,

wife of Butan Yadav (PW-12) had allegedly arrived to Butan Yadav in baithaka of Narayan Yadav and had laid down on her husband and sustained

injury and fell senseless while Butan Yadav was sleeping there and he also sustained injury in the assault and fell senseless. So there is no eye witness

of occurrence of dacoity in the house of Butan Yadav.

So far as occurrence of dacoity in the house of Chandeshwari Yadav and Kamal Yadav is concerned, as discussed by me hereinabove, said

Chandeshwari Yadav and Kamal Yadav have failed to establish the same and other witnesses are hearsay witnesses regarding aforesaid aspect of

the case. Though the said witnesses have claimed to have witnessed the occurrence of committing dacoity in the aforesaid houses by the accused

persons, but as per their account at the time of occurrence they were in the vicinity of the house of Narayan Yadav which is located at 1485 feet from

the house of Chandeshwari Yadav and house of Kamal Yadav is located in separate tola and without any source of identification, it was not possible

for the said witnesses to witness the said occurrence from such a distance in such a dark night without any source of identification.

Accused persons happen to be own brothers and pre- acquaintance of Butan Yadav, informant and other witnesses, but as per the account of

witnesses, they have not covered their face at the time of occurrence. As they had selected mid dark night to commit the occurrence, they would

have covered their face also at the time of occurrence to avoid their identification during the course of the occurrence and they would not have left

their face uncovered on the risk of their identification to face the rigor of conviction and punishment. Hence, the aforesaid aspect of the case creates

serious doubt about complicity of the appellants in the occurrence.

Under Section 397 of the Indian Penal Code, if any hurdle or protest is made by inmates of the house during the course of dacoity, the protestor

may be assaulted by the accused persons i.e. assault must be in the course of occurrence of dacoity, but in the case under hand, the occurrence of

assault upon Butan Yadav took place preceding to the dacoity and not in the course of dacoity. Hence, no case under Section 397 of the Indian Penal

Code is made out against the appellants.

Most important aspect of the case is that the accused persons assaulted Butan Yadav who was sleeping in the baithaka of Narayan Yadav, but

they did not commit any dacoity in the house of Narayan Yadav. From account of the witnesses, it appears that the accused persons had assaulted

Butan Yadav by opening his face and identifying him. Aforesaid aspect of the case goes to indicate that the intention of the accused persons was to

assault Butan Yadav and not to commit dacoity. Moreover, occurrence of dacoity does not stand established by the prosecution and the aforesaid

occurrence of assault upon Butan Yadav also does not stand established by the prosecution by adducing trustworthy, consistent and reliable ocular as

well as medical evidence.

Admittedly, there was land dispute between the parties and as per the witnesses account, as discussed be me hereinabove, there was animosity

between the prosecution party and the witnesses with the accused persons. Animosity cuts both the edge. But in view of the aforesaid contradiction

between the prosecution case and witnesses’ account, witnesses’ account inter se and intra se, non-establishing the occurrence of assault and

dacoity and non-establishing of the source of identification, false implication of the accused persons due to aforesaid animosity cannot be ruled out.

In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case

beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence ocular and documentary evidence. Hence, the

impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellants are acquitted from the charge

levelled against them giving them benefit of doubt. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly,

this criminal appeal is allowed.