Samshul Sah and Md. Zahid vs State of Bihar

R.N. Prasad and C.M. Prasad, JJ.—Both the Appellants stand convicted under Sections 395 and 364(A)/34 of the Indian Penal Code and respectively sentenced to undergo rigorous imprisonment for seven years and rigorous imprisonment for life. The sentences are, however, to run concurrently.

The prosecution case, as set out in the fard-beyan recorded on the statement of informant Surya Narayan Mahto on 17th January, 1996 at 7:15 P.M. by S.I. R.N Choudhary at the door of the informants house is that, that day (17.1.1996) his (informant''s) daughter Sangita Kumari @ Likhiya was seated at his shop and leaving the shop under her care, he (the informant) was going out for defecating. He (the informant) further stated that while he had proceeded about 50 yards from the shop he heard the sound of breaking of door and, turning back, he saw that 7-8 person were outside his house and 3-4 person had entered into the shop. They were dacoits who were armed with gun and pistol. It was further alleged that the dacoits demanded key from Sangita Kumari @ Likhiya, but she did not hand over the Same to the dacoits, hence, they assaulted her with fists and slaps. He further stated that he getting afraid, hid himself behind the heap of straw nearby and then he saw that the dacoits looted away articles, clothes, ornaments and cash amounting to Rs. 16,000/- (sixteen thousand) from his shop and other portions of the house, attached to the shop. It was also alleged that at the time of commission of dacoity, the of the dacoits who was commanding theirs had ordered for searching Surya Narayan Mahto, i.e., the informant, but since he was not found there, he ordered the dacoits to carry away with them his (informant''s) daughter Sangita and that at the time of fleeing away with the booty, the dacoits did also kidnap away Sangita Kumari. It is stated in the fard-beyan that while taking away Sangita Kumari, the dacoits were stating that they would get (sic)oney in ransom for releasing Sangita Kumari. The details of articles, clothes, (sic)naments and cash money were mentioned in the fard-beyan. None of the dacoits was named in the fard-beyan. However, their physical description was mentioned and the informant claimed that he could identify them on seeing them again. On the basis of the fard-beyan, Andhra (sic)arhi P.S. Case No. 2 of 1996 was registered and the investigation commenced. On completion of investigation and submission of chargesheet, the Appellants along with seven others were put on trial under S.T. No. 2 of 1993 before the 4th Additional Sessions Judge, Madhubani and vide impugned judgment dated 24th January, 2000, the two Appellants were convicted and sentenced, as stated above.

As many as eight witnesses were examined before the trial court. One court witness, C.W. 1 Binod Kumar Choudhary was also examined who was a witness of formal nature who simply proved the writings on the F.I.R. marked Ext-4. Two witnesses, namely, Abdul Sakur and Deo Narayan Mahto were examined with the same serial Number, i.e., ''P.W. 1''. P.W. 1 Abdul Shakur is an adjacent neighbour of the informant who says about the commission of dacoity in the informant''s shop and also about the kidnapping of informant''s daughter Sangita Kumari @ Likhiya. He says that after the occurrence, he had gone to the shop and he had found the articles scattered hither and thither. This witness did not claim to have seen the dacoits. Another witness Deo Narayan Mahto who is also numbered as P.W. 1 has also testified that a dacoity was committed and the dacoits had looted the clothes, ornaments cash etc. and that while decamping, the dacoits had also taken away with them Sangita Kumari. But this witness says that he had not identified any of the dacoits. P.W. 2 Rameshwar Panjiyar simply says that hue and cry was raised at the time of commission of dacoity and he says that on hulla, he closed his shop and left the place and subsequently he learnt that dacoity was committed and the dacoits had also kidnapped away Sangita Kumari @ Likhiya.

P.W. 3 Ranjit Panjiyar deposed on similar lines, as P.W. 2 did. This witness says about the commission of dacoity, but he does not say having identified any of the dacoits.

P.W. 4 Md. Afzal Hussain is a hostile witness and he simply says that on hulla he went to the informant''s shop and learnt that dacoity was committed. Thus, the above five witnesses simply say about the commission of dacoity, but they did not say anything about identifying any of the criminals.

P.W. 5 Surya Narayan Mahto is the informant himself and P.W. 6 Sangita Kumari @ Likhiya is the informant''s victim daughter who is said to have been kidnapped by the dacoits. P.W. 7 Sri Siddharth Mandal is the Judicial Magistrate who conducted the T.I. Parade of the Appellants. P.W. 7 testified that on 13th February, 1996, he had conducted in Sub-divisional Jail, Jhanjharpur, the T.I. Parade of three accused, namely, Md. Zahir and Samshul i.e. the two Appellants and one Md. Kushi Alam. He further deposed that in T.I. Parade, Surya Narayan Mahto (P.W. 5) had identified the two Appellants Md. Zahir and Samshul Sah and that Sangita Kumari @ Likhiya (P.W. 6) had identified all the three suspects, namely, the two Appellants and the third one put on T.I. Parade.

The informant (P.W. 5) and his daughter Sangita Kumari (P.W. 6) are the material witnesses whose evidence requires to be discussed in detail, in order to find out the complicity of the two Appellants in the alleged offence. The informant (P.W. 5) deposed that on 17th January, 1996 at 5:30 P.M. his daughter Sangita was sitting at his shop and he was going out for defecating and that as soon as he had proceeded about 50-60 yards from the shop, 5-6 persons came to his shop and they asked the rate of sale price of potato from his daughter and they also started breaking the door of the gate of the shop. He further stated that 5-7 other dacoits also arrived there and they were crying that Surya Narayan Mahto, the informant be captured. Seeing this, he (the informant) hid himself behind the heap of straw kept nearby. Then he stated that the dacoits demanded the key from Sangita Kumari and, on her refusal, they assaulted her with fists and slaps. The dacoits were armed with gun and pistol and that after commission of dacoity, when the informant was not found, the dacoits blindfolded Sangita Kumari and kidnapped her away, with them along with the looted articles. He identified his signature on the fard-beyan marked Ext-1.ln cross-examination at Para-21, he deposed that the dacoits were tying Galmochha and that the dacoits had got all the lamps put off. Further in Para-25 of his evidence, he deposed that his daughter Sangita (P.W. 6) was recovered by Nirmali P.S. Police and some criminals were also arrested. He further deposed that four criminals were arrested and the looted articles were also recovered and on learning about the recovery of looted articles, he had gone to Nirmali. He further deposes that he had seen four dacoits seated on a Jeep there. Referring this portion of evidence of the informant, Appellants'' counsel argued that before holding of the T.I. Parade, the informant was afforded an opportunity by the Police to see and identify the four criminals which included the Appellants, hence, it was argued that the T.I. Parade which was subsequent to this is vitiated and it cannot be fully relied under the law P.W 6 Sangita Kumary says in detail about the commission of dacoity and she corroborates the informant on this point. She says that after commission of dacoity, the dacoits kidnapped her away with them. She further says that she was taken up at the house of Israil (who was not facing trial before the trial court). She proved one letter marked Ext-2 saying that the letter was in her writing and further said that she, wrote the letter on the dictation of Israil. This witness says in detail about the occurrence and as would appear from the evidence of P.W. 7, who held the T.I. Parade that this witness had identified the two Appellants during the T.I. Parade, but during her evidence she did not say anything about having identified any of the dacoits during the commission of the offence nor did she identify the Appellants in court, in course of adducing her evidence. P.W. 6 was examined by the trial court on 23rd April, 1999 and the order-sheet dated 23rd April, 1999 of the trial court mentions that on that day, the accused were in custody and they were produced before the trial court from custody. Thus they were present at the time when this witness gave her evidence before the court, but this witness does not say or claim to have identified nor did she identify any of the Appellants in the court. This point was taken up critically by the Appellant''s counsel and he pointed out that, no doubt, P.W. 6 identified the two Appellants in the T.I. Parade, but that identification is not a substantive piece of evidence, but simply is of corroborative value towards the evidence adduced in court. It was further argued that substantive evidence is the evidence made before the Court and P.W. 6 has not identified any of the criminals in court, hence, there does not remain any substantive evidence, so (sic)ar the; identification is concerned. P.W. 6 has further deposed at Para-12 that the dacoits were tying muffler. She also deposed at Para-13 that the dacoits had put off the lantern and then they had started committing dacoity. Sho continues to depose at Para-15 that she was recovered from the house of Israil. She further deposed at Para-16 that while being taken (sic)way, she had been blindfolded, hence, She had no knowledge of the way through which she was carried. She also deposed that about 3 Kms before arriving the house of Israil, the other criminals had left her and they had gone to their houses. Here it was argued by the learned Counsel for the Appellants that from these circumstances, when the lantern was put off during the commission of dacoity and when P.W. 6 remained blindfolded all through the way when she was carried to the house of lsrail and when other criminals had left her before arrival at the house of Israil, she had no opportunity to see and identify the dacoits. At Para-21 she deposed that she as well as the apprehended dacoits were brought to Nirmali P.S., all of them were kept there. She further deposed that when her father (P.W. 5) had arrived at Nirmali Police Station, she and the apprehended dacoits were kept seated at the same Place of Nirmali Police Station. Pointing out this evidence, learned Counsel for the Appellants argued that through this evidence it is further indicated that the informant who happens to be the only witness who identified the Appellants in court as well as in the T.I. Parade, had opportunity to see the Appellants at the Police Station before holding of the T.I. Parade and, hence, the identification, as made by P.W. 6, was argued to be a vitiated identification. As regards the letter (Ext-2), as proved by P.W. 6 the learned Counsel further pointed out the evidence of this witness at Para-30 wherein she says that she is known by the name "Sangita Kumari @ Likhiya" only and she has no other name and she further deposed that at the end of the letter the name is written as "Kusum Kumari". Learned Counsel further referred to Para-31 of the evidence of this witness where she says that she had stated before Police that she had written only two lines of the letter and the rest was written by the dacoits themselves. Appellants'' lawyer further submitted that the prosecution has brought this letter on record in order to prove the allegation u/s 364(A) I.P.C., but there are infirmities which make the letter suspicious. It was pointed out that in her examination-in-chief P.W. 6 claimed that whole of the letter was in her writing but she contradicts in Para-31 that she had stated before the Police that only two lines of the letter were in her writing and the rest was written by the dacoits and that the letter bears the name of different person, i.e. Kusum Kumari. Learned Counsel further argued that the prosecution has simply proved the letter but it has not proved any circumstance to show as to who gave the letter to whom and in what way the letter is related to any of the Appellants.

Learned A.P.P. was unable to sow any circumstances, which could link with the letter to any of the Appellants.

Thus, on considering the entire evidence and the facts and circumstances of the case, as discussed above, it would appear that out of the array of the prosecution witnesses, P.W. 5 is the only witness who has identified the two Appellants in the T.I. Parade as well as in court, but the identification stands vitiated due to the circumstances that before holding of the T.I. Parade, the two Appellants were shown to this witness at the P.S. Moreover, there are other circumstances too, in the nature that the dacoits had tied Galmochha and that they had put off the lantern and all the other lamps during the commission of the offence, which would, in fact, left no opportunity for this witness to identify the criminals during the commission of offence. Moreover, this is a case of sole identification as made by the informant only, which suffers with its own infirmities as discussed above. In such view of the matter, it is never safe to convict the Appellants on such identification and therefore, the Appellants are found entitled to benefit of doubt. There is no other material to show the Appellants'' complicity in the alleged offence. On analyzing the evidence, the prosecution has been able to prove this much that a dacoity was committed but the complicity of these two Appellants in the said dacoity is not being established beyond doubt. Therefore, the two Appellants are entitled to be acquitted of the charges leveled against them.

In the result, this appeal is allowed and the impugned judgment of conviction, is hereby set aside. Appellants Samshul Sah and Md. Zahid who are in jait are directed to be released forthwith, if not wanted to be detained in any other case.