Full Judgment
R.N. Sahay, J.
1. These two appeals have arisen from Sessions Trial No. 244/1981 and 41/1988 disposed of by the 6th Additional Sessions Judge, Nalanda, Biharsharif by judgment and order dated 27th May, 1989 and all the three appellants have been convicted under Section 395 of the Indian Penal Code and sentenced to seven years' R.I. Bhattu Manjhi is the appellant in Cr. Appeal No. 220 of 2989 whereas Jethan Manjhi and Ramashish Ram @ Mater Khanna Kahar are the appellants in Cr. Appeal No. 223 of 1989.
2. The case of the prosecution has been stated in paragraph No. 2 of the judgment of the trial Court as extracted below:
The case of the prosecution as per the F.I.R. marked Ext. 2 is that Arjun Sao, P.W. 7 was sleeping in his grocery shop situated at village Bedauli, P.S. Asthawan, District Nalanda, to which he belongs in the night of 31-12-1980/1-1-1981. His house is situated at some distance from his grocery shop. In the mid-night of 31-12-1980/1-1-1981, he heard that cry of weeping from his house. Thereupon, he rushed form his shop to his house and he saw the accused Ramashish Kahar alias Mater Khanna Kahar, Bamhatha Kahar (since dead), Jethan Manjhi and Bhatu Manjhi all of the same village fleeing away from the western exit of his house whom he identified in the light of his lantern which he had carried from the shop. The accused Ram ashish Kahar was carrying a bundle of clothes in his hand. The accused Bamhatha Kahar (since dead) was carrying the household utensils. The accused Jethan Manjhi and Bhatu Manjhi hurled a bomb seeing the informant as a result of which there was an explosion and he could not advance further out of fear. However, he raised alarm loudly as a result of which the inmates of his house came out. His co-villagers Muneshwar Prasad Singh, Siya Saran Singh, Ramchandra Singh, Nageshwar Singh, etc. also rushed there but by that time, the accused-persons fled away towards west. They were also chased by them but the accused-persons made their escape good. He found his wife Shakuntala Devi and his mother both injured. Both of whom had bleeding head injuries. According to the F.I.R. the accused-persons had taken away clothes, utensils and cash amounting to Rs 450/-. The informant in the next morning went to Asthawan Police Station situation at a distance of 10 kilometres from the P.O. village along with his injured mother and Lakhichand Sao (P.W. 4) and reported at 10 a.m. on 1-1-1981. The motive behind the occurrence as disclosed in the F.I.R. was that the accused-persons were men of criminal bent of mind who used to indulge themselves in committing such crimes It was also disclosed in the F.I.R. that the accused persons had been identified by the inmates of his house. The Police instituted a case under Section 394, I. P. C. against all of the four accused-persons named in the F.I.R. and took up the investigation. During the course of investigation Section 394, I.P.C. was converted to Section 395, I.P.C. on 15-1-1981. After due investigation, the police submitted charge-sheet. against all the four accused-persons under Section 395, I.P.C. The learned C.J.M. Nalanda took the cognizance of the offence under Section 395, I.P.C. on 22-4-1981 and committed the case to the Court of Session on 7-9-1981 This case was received on transfer in this Court on 11-5-1988.
3. All the appellants are co-villagers of the informant and they have been named in the First Information Report. Learned Additional Sessions Judge has accepted the evidence of inmates of the house where dacoity was committed, who claimed to have identified the appellants.
4. Learned Counsel for the appellants has submitted that it is absurd to believe that the co-villagers would venture to commit the dacoity in the house of another co-villager without any attempt to conceal their identity. It is further contended that the identification in the dark night in the facts and circumstances of the case was not possible and so the learned Sessions Judge erred in placing implicit reliance on the witnesses, who claimed to have identified the appellants.
5. On the analysis of the evidence, I find that the witness Trilok Prasad son of the informant has not identified any of the appellants and he had been told by his father that he had identified the appellants.
6. Shakuntala Devi wife of the informant was sleeping in a room. A lantern was burning in the Osara. On hearing noise, she came to her verandah and found 10-15 persons standing in the Courtyard. Miscreants were carrying lathi and torch. She was also assaulted by the dacoits by lathis. She claims to have identified Ramashish Ram @ Mater Khanna and Jethan Manjhi. This witness is not clear as to whether all the dacoits had assaulted her or only these two appellants name above had assaulted her. Lantern was burning in the Osara. It would have been difficult to identify the dacoits standing in the Courtyard. There is another infirmity in the evidence of this witness. She stated that her husband also disclosed the name of these appellants. It is quite possible that the claim of this witness regarding identification of two appellants is based on the statement of her husband.
7. Premchand Sao, son of the informant was sleeping in the Deodhi of his house along with his brother Anandi Sao. He woke up on hearing noise and wanted to go to the Angan but he was pushed back by the miscreants and he could not go out. He claims to have identified Bhattu Manjhi in the torchlight flashed by this appellant. In my view, evidence of this witness cannot be said to be reliable. It is not expected that the dacoits would have flashed the torch on their own faces. I, therefore, do not rely on the identification of this witness.
8. Arjun Sao in whose house dacoity was committed was sleeping in his shop. He woke up on hearing sound of bomb explosion. He rushed to his house with the lantern and saw the dacoits fleeing away. He saw the dacoits flashing torches. He claimed to have identified Ramashish Kahar in the torchlight flashed by the dacoits. The evidence of this witness is also not trustworthy since he says that he identified the dacoits while fleeing away and it is not possible to identify the dacoits from behind. It is not the prosecution case that any stolen article was recovered from the house of any of the appellants. The independent witnesses named by the informant could have thrown some light to face the evidence of the informant. But unfortunately, they have not been examined. First Information Report of the occurrence was lodged at 10.00 a.m. on the next day of occurrence. In the First Information Report, the informant named only four persons and has not stated that there were other miscreants along with those named, hence no case under Section 395, I.P.C. is made out on the allegation in the F.I.R.
9. In the result, on consideration of the evidence, I am of the view that the conviction of these appellants on the meagre evidence produced by the prosecution is highly unsafe. The appellants, therefore, deserve benefit of reasonable doubt. Both the appeals are accordingly allowed and the conviction of the appellants is set aside and they are acquitted of the charges by giving them benefit of doubt. It is to be mentioned that the appellants had remained in custody for about nine months and now they are on bail. They are directed to be discharged from the liability of their bail-bonds.