Bindeshwar Yadav vs The State of Bihar

Dharnidhar Jha, J.—These two appeals arise out of judgment dated the 15th of April, 1991, passed by the learned 5th Additional Sessions Judge, Gaya in Sessions Trial No. 38 of 1989/259 of 1986 by which the six appellants of the two appeals were held guilty of committing offence under Section 396 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for life.

As per the Fardbeyan of P.W. 5 Ram Saroj Sharma, while he and his family members were sitting at his Darwaja, at about 09.00 p.m., 20-25 dacoits came there and surrounded him and others. He identified the accused persons named in the First Information Report including appellant Bindeshwar Yadav and Sukhu Yadav. It was stated that the dacoits by putting gun on the chest of the informant was asking him to show the properties. Some of them entered inside the lady section of the house and some of them kept surrounding the informant and others and also kept assaulting him and others. It was stated that dacoit Raj Kumar Singh was stating that Punjabi had come which statement was rejoined by P.W. 3 Shrikant Sharma who also stated that he too was a Punjabi upon which accused Raj Kumar Sharma fired a shot causing injuries to P.W. 3. The properties of the house were plundered and the lady inmates of the house were also assaulted. It is stated that one Ram Nandan Singh came to resist the dacoits and he was shot dead. The informant appended a list of properties which were looted away and that list included a gun belonging to the informant''s family.

It appears that the case was investigated into and the six accused persons were put on trial. Prior to that trial of six accused persons, a batch of seven accused persons were also sent up in connection with the same incident and they were tried in Sessions Trial No. 34 of 1983/502 of 1981 and it appears that on being convicted, three of them had preferred Cr. Appeal 331 of 1986 before this Court and by judgment passed by this Court on 17th of October, 1987, they were acquitted of the charge. As regards the present batch of appellants, they were held guilty and sentenced as indicated above.

During the course of the trial, 13 witnesses were examined out of whom P.W. 9 Suresh Sharma was a witness of formal character with P.W. 10 Hardeo Singh who had signed the inquest report as a witness. P.Ws. 11, 12 and 13 were also formal witnesses having witnessed one part of the occurrence or the other or had tendered one document or the other in evidence. So far as the remaining witnesses were concerned, P.W. 1 Ramanuj Sharma, P.W. 2 Kaushlendra Kumar Sharma, P.W. 3 Shrikant Sharma who was injured in the incident, P.W. 4 Ramakant Sharma and P.W. 5 Ram Saroj Sharma all family members amongst them came forward to support the factum of dacoity, participation of the accused named in the First Information Report besides identification of some other accused persons in the Test Identification Parade. P.W. 6 Ram Pyari Devi, P.W. 7 Bimla Kumari and P.W. 8 Manmati Devi had not identified any accused persons and as such they had not named any of the dacoits in their evidence in Court. In fact P.W. 8 Manmati Devi stated that she was not present in the house in the night of the dacoity and that she was in her parents house.

We were taken through the evidence of the above noted witnesses and we find some of the important features coming out of the evidence of those witnesses. The witnesses claimed to have identified the accused persons in electric bulb but it has been admitted by one of the witnesses, i.e., P.W. 4 Ramakant Sharma that there was no domestic connection in the house and that they were drawing electric power from the tube-well which had the power connection. The identification is in the light of electric bulb. We had some difficulty in accepting the evidence, but considering that the electric power had been drawn for domestic consumption illegally, we grant them such much of allowance to the prosecution that there was sufficient light available at the place of occurrence. But, what we find is that the witnesses have stated that some of the dacoits had put on Galmochha and some had put on Muretha in order to concealing their identities and further that they who had taken precaution to conceal their identities could not be identified by them. Out of the set of accused persons, most of them were identified either at the Test Identification Parade or during the course of dacoity and were named in the First Information Report who were the very co-villagers of the informant. It defies our reason as to how a co-villager shall trade inside the house of another co-villager with deadly weapons without taking precaution to conceal his identity and thus, he should subject himself to the danger of being identified for being named in the First Information Report or for being identified in the Test Identification Parade. The very evidence makes it utterly unacceptable to us that the present set of appellants could have participated in the dacoity.

We have already noted that they were the co-villagers. Two of the accused who are not before us, namely, Kuldeep and Nawab were the residents of different village, i.e., Govindpur, but what appears from the evidence of the witnesses is that the witnesses very well knew the residents of village Govindpur on account of either visiting the village in connection with their own day to day affairs or on account of having studied together with the accused persons in some schools. The Test Identification Parade as such appears farcical inasmuch as the very villagers who were very well known by name and face to the informant and his family members as also other than the villagers who were very well known to the informant and his family members. The evidentiary value of Test Identification Parade looses its important and significance both. It is true that there is no direct reason available to us as to why the informant and others should implicate falsely innocent persons, but the defence had attempted to bring on record certain dispute for land or certain strained relationship between the accused persons on the one hand and the informant and his family members on the other. It is true that the witnesses had denied those questions but the denial in most of the cases is not categorical and it appears that they had simply feigned ignorance to some of the facts showing the probability of strained relationship between the two parties. Village life has its own peculiarities. Most of the times a trifle matter could be as important as any serious issue so as to foisting false cases upon innocent persons. No wonder that for any particular reason which was suggested by the defence during the cross-examination of the witnesses, the accused persons had been implicated either by being named in the First Information Report or due to being identified in the Test Identification Parade. We have already pointed out the weak nature of the evidence as regards the identification of accused by the informant and his family members. No independent person had come to support that it were the present set of the accused persons who could have committed the dacoity.

In the result, what we find is that the evidence was such which did not inspire our confidence as regards the participation of the six appellants in the commission of the alleged dacoity as a result of which we extend benefit of doubt to the appellants. The appellants are acquitted of the charge. They are on bail. They shall stand discharged from the liabilities of their respective bonds.