Sattar Mian vs The State of Bihar

The sole appellant stands convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years by the judgment and order dated 10.3.2003 passed by Sri A.K.M.M. Qureshi, the then 3rd Additional Sessions Judge, Saharsa in Sessions Trial No. 216/89.

The prosecution case as per FIR of the informant (P.W.5) Harihar Das is that accused persons variously armed entered inside the house and looted articles and in the torchlight he identified the appellant Sattar Mian and he has also given the details of articles looted in the dacoity.

On the basis of aforesaid fardbeyan Nauhatta P.S.Case No. 2/76 was registered and on post investigation charge sheet has been submitted, cognizance has been taken and the case has been committed to the court of sessions, which ultimately came to the file of Sri A.K.M.M. Qureshi, the then 3rd Additional Sessions Judge, Saharsa for trial and disposal.

During trial altogether seven witnesses have been examined on behalf of prosecution, they are Kulo Paswan (P.W.1), Sarjug Das (P.W.2), Ram Narain Das (P.W.3), Kumer Das (P.W.4), Harihar Das (P.W.5), who is informant, Bouku Paswan (P.W.6) and Rajendra Thakur is P.W.7, who is a formal witness. It appears that P.W.7 is the Constable No. 381 and he is witness of seizure list.

On behalf of defence three witnesses have also been examined, they are D.W.1 Sambhu Nath Mishra, D.W.2 Karu Sharma and D.W.3 is Jagarnath Das.

Learned trial court after concluding trial has convicted the appellant under Section 395 IPC relying on the evidence of witnesses as he was identified by them in court as well as in the FIR also.

Contention of learned counsel for the appellant is that the evidence of witnesses itself shows that the appellant is co-villager and further there was 107 Cr.P.C. proceeding pending against Debu Das and the appellant and there was some criminal cases also. In such a situation, the identification of the appellant is of no value. Further submission is that there is nothing available on record to show any overt act or any specific feature has been assigned to the appellant while identifying him and furthermore there is no recovery from the possession of the appellant and in such a situation non-examination of I.O. is fatal as had he been examined in this case he would have thrown light as to whether he tried to arrest the appellant just after the occurrence as he happens to be co-villager or to find out any recovery from his house. Further submission of learned counsel for the appellant is that in totality the identification of appellant is not free from reasonable doubt and there is no other incriminating material either recovered or anything else, as such, the impugned judgment is not sustainable in the eye of law.

On the other hand, learned counsel for the State has supported the impugned judgment on the ground that almost all the witnesses have identified the appellant and he was also identified in court and, as such, trial court has rightly convicted the appellant under Section 395 IPC and the impugned judgment does not suffer from any infirmity.

In the aforesaid background while examining the evidence on behalf of prosecution it appears that P.W.5 Harihar Das is the informant in this case and his evidence disclosed about dacoity was committed in the house of Jagdish Das and he along with Sarjug Das, Narain Das, Kuwar Das and Kulo Paswan was at the darwaja of Jagdish and 12 decoits came and tied them with rope and in the torch light he identified one dacoit Sattar Mian. This witness has been cross examined and he has stated that his statement was recorded on the next day morning and he has also stated that he had gone in the T.I.P. and he has identified some of the accused persons as they are not present having absconded. His evidence disclosed that Bouku Paswan (P.W.6) lodged a case against appellant Sattar Mian and he has denied that he is a witness in that case but he has admitted that there was proceeding of 107 Cr.P.C. between Sattar Mian and him. He further claims that he identified Sattar in the light of torch flashed by Sattar. His evidence in paragraph-7 further disclosed that house of Sattar is after 4 to 5 houses of him. His evidence also disclosed that he has not given any cogent reason for his presence at the house of Jagdish in the night at 1 A.M. The above evidence of P.W.5, informant disclosed that he claims to have identified the appellant in the light flashed on him, which is improbable as when light flashed upon one person he cannot identify the person who flashed the torchlight. Secondly his evidence also disclosed that he appears to be neighbour of informant and there was enmity between appellant and Bouku Paswan from before which has been admitted by P.W.5, hence his further implication cannot be ruled out.

P.W.1 is Kulo Paswan, who has stated in his evidence that he was sitting in the house of Harihar Das and the dacoits 15-16 in numbers came and he identified the appellant Sattar Mian and they tied him also on a khutta. His cross examination disclosed that Sattar has not covered his face and he is a resident of his basti.

P.W.2 Sarjug Das has also stated that he was sleeping in the house of Jagdish Das on the day of occurrence and decoits came and fired twice, which is not the prosecution case that the decoits fired and they tied him and committed decoity. He also claims to have identified Sattar among the decoits and also claims to have identified other accused persons in T.I.P. His cross examination also shows that there was proceeding of 107 Cr.P.C. between him and Sattar Mian and his evidence does not show as to what was the specific feature in which he identified Sattar Mian and secondly his evidence shows that there were cases going on between Sattar Mian and him from before and he has also not given any reason for his presence at the house of Jagdish Das.

P.W.3 has also stated about identification of Sattar Mian. He was present at the house of Jagdish Das and 7-8 decoits came and fired and he identified one of the decoits Sattar Mian. He also claims to have identified three decoits in the T.I.P. He has also admitted that Sattar Mian is his co-villager and his house is just opposite his house and Bouku Paswan lodged a case against Sattar Mian and in the year 1973 there was a 107 proceeding between him and Sattar Mian.

The evidence of P.W.4 also disclosed that he identified Sattar Mian but he has not stated as to why he was present at the house of Jagdish Das in night and his evidence also shows that Sattar is also his co-villager.

P.W.6 is Bouku Paswan and his evidence disclosed that wooden balava was seized by darogaji in his presence and he has stated that he has not filed case against Sattar.

P.W.7 is the then Constable No.381 and he has proved the FIR (Ext.2) and seizure list (Ext.3).

On discussion of prosecution evidence it clearly appears that the material witnesses, P.Ws. 1 to 5 claim to have identified the accused appellant Sattar Mian but their evidences disclose that a dacoity was committed in the house of Jagdish Das but Jagdish Das has not been examined in this case nor the witnesses have given any cogent reason as to why they were present in mid night at the house of Jagdish Das. Further their evidences disclose that cases are going on between the witnesses on one hand and appellant on other hand, in such a situation, probability of false implication cannot be ruled out. Furthermore, appellant is co-villager and had he participated in decoity, normal conduct would have been that he hide his face, but the witnesses have not stated so. Further in such a situation non-examination of I.O., to my opinion, has caused prejudice to the defence as had he been examined in this case the defence could have examined him on the point that Sattar was co-villager and whether police has raided his house and arrested him and whether there was any recovery from his house and on the other points.

Considering the entire discussions made above, it appears that there are several discrepancies and inconsistencies in the prosecution case but learned trial court has failed to consider those discrepancies. In such a situation, at least the appellant is entitled to the benefit of doubt.

Accordingly, this appeal is allowed. The impugned judgment of conviction and order of sentence are set aside. As appellant is on bail, he is discharged from liabilities of his bail bond.