Sheikh Salim vs The State of Bihar

Mandhata Singh, J.—Heard learned Amicus Curiae and learned counsel for the State.

This appeal is filed against the Judgment and order dated 07.08.1998 passed by the learned 3rd Additional Sessons Judge, Purnea in Sessions Trial No. 457 of 1996/263 of 1997 whereby and where under the appellant has been convicted u/s 396 of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years.

Prosecution case, if brief, is that the deceased Rameshwar Singh and his brother, Kishori Singh were returning after unloading Mahua from Banmankhi. Truck was being driven by Rameshwar Singh, deceased and Kishori Singh was Khalashi. When the truck reached near Sarsi Chowk, 5 miscreants got stopped the truck, came in its chamber and after going ahead about one kilometer, two of them on the point of pistol demanded money. One of them succeeded to take out Rs. 4500/- from the pocket of the deceased. There was further demand also and disclosure about having no more money firing was shot on the deceased who later was taken to Purnea Hospital where succumbed to his injury in course of treatment. In fardbeyan, his further statement can be taken as dying declaration was taken. The statement of the deceased is earliest one. His brother later has been examined, rather his fardbeyan is recorded after death of Rameshwar Singh but there is no contradiction in between both the fardbeyans on the point of getting stopped the truck, coming of miscreants in its chamber and firing of shot after covering a distance near about one kilemetre by the Truck.

After concluding the trial, same is ended in conviction and sentence by passing the impugned judgment and order.

In all 8 witnesses are examined. Of them, PWs. 1, 2 and 3 are stating to know nothing about the incident have been declared hostile in which also nothing has appeared on the point of taking place of the incident or involvement of the accused-appellant. P.W.6 is a formal witness has got exhibited fardbeyan of Kishori Singh and Rameshwar Singh without making further statement. P.W.7 is I.O. of the case who states about proper investigation on his behalf.

Two of the witnesses now remained to believe or disbelieve the prosecution case. Of them, P.W.8 is Khalasi of the Truck, brother of the deceased and informant of the case also. He remained present on the truck while firing was shot on his brother after snatching his money but he is not naming any of the accused persons including this appellant, rather is making statement about coming up of 4-5 miscreants on Truck. That has connection with statement of P.W.4. P.W.4 is an eye witness on the point that 4-5 miscreants came on the truck after getting it stopped then only after covering a distance of one kilometer, later he could know that its driver was killed.

Identification of the appellant as one of the miscreants is questioned. Admittedly, he has not been named in the F.I.R. nor put on T.I. Parade, while one of the victims of the incident remains survived and examined in Court also as P.W.8.

In para-12 of the cross-examination, a question is put to him if identification by him was possible but that is in negative on his behalf. No doubt, P.W.4 is clear enough and can be accepted also that four persons boarded the truck were identified by him but a vital question is raised on behalf of the defence that miscreants boarded a truck was the truck driven by the informant''s brother (deceased) and if driven then really they shot firings.

P.W.4 is on the point of firing that he could know from villagers of Gokulpur about killing of a driver of a truck by some miscreants. In para-8 of the cross-examination, his statement is about giving statement against one Satar who was absconding in the case and in another para, he states that a villager from Gokulpur told him about killing of the driver of a truck. Link is missing finding absence of number of the truck or any cogent evidence that someone is there to state that the killing of the driver was of the same truck on which miscreants including this appellant had boarded that is added by not to put the appellant on T.I. Parade for its identification by the one of the victims. Once involvement of the appellant in the incident appears doubtful, his conviction and sentence reached by the Trial court is not liable to sustain.

Accordingly, the appeal is allowed and the Judgment and Order dated 07.08.1998 passed by the 3rd Additional Sessions Judge, Purnea in Sessions Trial No. 457 of 1996/263 of 1997 is set aside and petitioner is directed to discharge from the liabilities of the bail bonds.

Let a copy of the first page and last page of this order be handed over to the learned Amicus Curiae.