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Judgment
Anjana Prakash, J.—The Appellants have been convicted u/s 395 Indian Penal Code and sentenced to rigorous imprisonment for ten years by a Judgment and order of conviction dated 28/29.11.2001 passed by the 2nd Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 27 of 1987. The case of the Informant Raja Ram Sah is that a Dacoity was committed in his house in which he was injured. He identified two Criminals namely, Appellant No. 1 and Nandlal Sah. A number of household articles and jewelry was taken away by the Dacoits.
During Trial, the Prosecution examined ten witnesses. PW-1 Sk. Aziz stated that on the night of occurrence, he heard hulla upon which he proceeded towards the house of the Informant, but he was injured. He did not identify any of the Dacoits nor did he hear the names of Dacoits.
PW-2 Satyanarain Sah and PW-3 Bindeshwari Sah have been tendered. PW-4 Fuldeo Sah has stated that he received pellet injury on the way to the house of the Appellants but, he did not identify any of the Dacoits. PW-5 Rashid Mian also repeated the version of PW-1 and PW-4.
PW-6 Ramesh Prasad, the son of the Informant has fully supported the factum of Dacoity and that the Dacoits started scuffling with his father in course of Dacoity. He allegedly identified Appellant Sukai Mallah and Nandlal Sah. He, thereafter, attended Test Identification Parade where he identified three Dacoits namely, Rajendra, Basudeo and Baijnath. He identified Appellant Meghu Chamar, Appellant No. 3 even in the Dock. He stated in his cross-examination that while Sukhai Mandal was settled in his neighbouring village, Appellant Baijnath Mallah settled there since last 3-4 years. He denied the suggestion that 107 proceedings were instituted in which his father was 1st party, whereas, Appellants No. 1 and 2 were the second party. He also denied the suggestion that 144 Cr.P.C. was initiated with regard to the homestead land, contested between his father and Appellant No. 1 in which they had lost where after an Appeal has been filed.
PW-7 Birendra Sah has also been tendered.
PW-8 Raja Ram Sah, the Informant, has repeated the version with regard to the Dacoity, assault him and looting of household articles and jewellery in which course, he identified Sukai Mandal and Nandlal Sah. He also stated that he identified the Dacoits further in the Test Identification Parade. In his cross-examination he stated that a proceeding u/s 144 Cr.P.C. was contested between him and Appellant Sukai Mandal prior to the occurrence as also that a proceeding u/s 107 Cr.P.C. had been initiated between him, Sukai Mandal, Baijnath and Kishun. He stated that he had contested the consolidation proceeding with the accused Sukai Mandal.
PW-9 Amresh Sah is the brother of the Informant who supported the factum of Dacoity and that he had identified the recovered articles. He stated about identification of Sukhai Mandal and Baijnath Mandal in course of Dacoity. PW-10 Ashok Kumar has been tendered.
It has been argued that the factum of Dacoity is not challenged. However, the identification of the Appellants is subject to challenge for the following reasons:
i) It is admitted that there was enmity between Appellant No. 1 and 2 on one side, and Informant and his family members, on the other. In this background of litigation between the parties who were well known to each other. It is highly unbelievable that the Appellants would firstly commit dacoity in the house of the Informant and that too, without concealing their identity. So far as the identification of the Appellants No. 2 and 3 in the Test Identification Parade is concerned, once the Magistrate who held Test Identification Parade, with regard to Appellant No. 3, was not examined, it would be highly unsafe to rely upon the sole testimony of witnesses who have chosen to lie with regard to the other co-accused persons.
I am inclined to accept the submission raised on behalf of the Appellants.
Hence, giving benefit of doubt to the Appellants, the Appeal is allowed. The order of conviction and sentence dated 28/29.11.2001 passed by the 2nd Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 27 of 1987 is, hereby, set aside. The Appellants are discharged from the liabilities of their respective bail bonds.