Jharkhand High Court

Bhim Mian vs The State Of Jharkhand on 13 September, 2023

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (SJ) No.498 of 2011
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Bhim Mian, son of Late Nepal Mian, resident of Village Mahtodih, P.O. Khurehuta (Kharagdiha), P.S. Bengabad, District Giridih ...... ...... Appellant Versus

The State of Jharkhand ..... .... Respondent

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant     : Mr. Kumar Saurav, Amicus Curiae
                        Mr. S.K. Samanta, Advocate
For the Respondent    : Mr. Shiv Shankar Kumar, APP
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C.A.V. on: 29/08/2023                        Pronounced on:13/09/2023

1. This Criminal Appeal has been preferred against the judgment of

conviction and the order of sentence dated 29.07.2011 passed by the learned

1st Additional Sessions Judge, Giridih in Sessions Trial No. 180 of 2002

arising out of Bengabad P.S. Case No.31 of 2001, G.R. No.517 of 2001,

whereby the learned trial Court has convicted the appellant under Section

395 of the Indian Penal Code and sentenced to undergo RI for seven years

with a fine of Rs.2000/-. In default of payment of fine, the appellant was

further directed to undergo RI for one month.

2. The brief facts leading to this Criminal Appeal as per the prosecution

case is that on 24.03.2001 at about 02:00 am two persons intruded in the

veranda, where the informant Kedar Singh was sleeping and they asked him

to open the door. The wife of Kedar Singh, namely, Dropadi Devi was

sleeping in the room and after hearing the noise, she came and opened the

door. Thereafter, 3-4 persons intruded in the house. One miscreant showed

the weapon and told the informant to sit in veranda and two persons started

assaulting the wife of the informant and also abused her. When the wife of

the informant wanted to raise alarm, the miscreants threatened her. It is

further alleged that the accused persons began to commit loot of the

household articles. They also assaulted the son of the informant and asked

him about the money and other household articles. The miscreants took

away the golden earrings, golden chain, bangles, payal and 5/6 silver chains

and one Onida T.V. The miscreants left the Onida T.V. behind the house.

They also took away 3 in 1 Audio of Philips Company and Radio of Philips

Company and two suit case (safari), one Yasica Camera and Rs.9500/- in

cash. They also took away the government papers, saree, pant and shirt. The

wife of the informant identified one of the miscreant, who was Bhim Mian

of Mahtodih, Chotki Kharagdiha, Bengabad, who was recently residing at

his sasural Baramo and also identified another person, who were resident of

Mahtodih, but their names were not known to her. It is also alleged that in

the year 2000, Jainul Ansari has charged his wife for carrying the profession

of conducting illegal abortion in the village, which was totally wrong

because his wife had gone to New Delhi for her treatment along with her

son. Jainul Ansari and Arjun Saw were always giving threatening and they

were making plan for committing dacoity in his house. Accordingly, this

case was registered as Bengabad P.S. Case No.31 of 2001 under Section 395

of the Indian Penal Code against Bhim Mian, the appellant herein and five

unknown persons.

3. The Investigating Officer after concluded the investigation, filed

charge sheet against the accused Bhim Mian for the offence under Section

395 of the Indian Penal Code. The Judicial Magistrate took cognizance of

the same and committed the case for trial to the Court of Sessions Judge,

Giridih.

4. The trial Court framed the charge against the accused Bhim Mian for

the offence under Section 395 of the Indian Penal Code the same was read

over and explained to him, he denied the charge and claimed to face the trial.

5. On behalf of the prosecution to prove the charge against the accused

in oral evidence examined altogether seven witnesses i.e. PW-1, Anil

Kumar; PW-2, Baijnath Prasad Verma; PW-3, Ramdeo Saw; PW-4, Kedar

Singh (informant); PW-5, Nasir Mian; PW-6, Dropadi Devi and; PW-7, Md.

Israil Ansari and in documentary evidence the prosecution has filed Exhibit-

1, Written report and Exhibit-1/1, Signature of the witness.

6. The statement of the accused was recorded under Section 313 of Code

of Criminal Procedure, in which, he denied the incriminating circumstances

in evidence against him and stated himself to be innocent. No defence

evidence was adduced on behalf of the accused.

7. The learned trial Court after hearing the rival submissions of the

learned counsel for the accused and learned counsel for the State, passed the

impugned judgment of conviction and the order of sentence dated

29.07.2011 holding the accused guilty under Section 395 of the Indian Penal

Code and sentenced as stated hereinabove.

8. Aggrieved from the impugned judgment of conviction and the order

of sentence dated 29.07.2011, this Criminal Appeal has been preferred on

behalf of the convict on the ground that the impugned judgment of

conviction and the order of sentence passed by the learned Court below is

based on wrong appreciation of the evidence. The learned Court below

convicted the appellant based on the evidence of interested witness, which is

not corroborated with any independent witness. No specific role has been

attributed to the appellant/ convict in commission of the alleged offence. No

other accused was prosecuted and sent for trial for the offence of dacoity.

The minimum number of the accused should be five in number. The

Investigating Officer was also not examined during the trial, as such, the

prosecution case is not proved against the appellant/ convict beyond

reasonable doubt and prayed to allow this Criminal Appeal and set aside the

impugned judgment of conviction and the order of sentence and acquit the

appellant/ convict from the charge levelled against him.

9. Heard the rival submissions of the learned counsel for the appellant

and learned counsel for the State.

10. To decide the legality and propriety of the impugned judgment of

conviction and the order of sentence, the following point of determination is

being claimed for disposal of this Criminal Appeal:

Whether the impugned judgment of conviction and the order of sentence is sustainable in the eyes of law?

11. This Court averts the evidence adduced on behalf of the prosecution

oral as well as documentary, which is reproduced hereinbelow:

11.1 P.W.-1, Anil Kumar, who is the son of the informant, in his

examination-in-chief, says that this case was lodged by his father. The

occurrence is of 23.05.2001. It was 02:20 O'clock of night. His father was

sleeping on the veranda. 8-9 criminals were came at his house and asked his

father to open the door. In the meantime, his mother awoke and she opened

the door, thereafter, 4-5 criminals intruded in the house. He was also present

there. Among the criminals, Jainul Mian, Arjun Saw, Rewat Mian and Bhim

Mian were identified at the spot. These accused persons had assaulted his

mother and asked his mother to handover the money, which was in the

house. The criminals also assaulted him with wand (danda). The accused

persons carried away the household articles worth Rs.70,000/- to Rs.80,000/-

comprising therein golden chain, silver ornaments of his mother, Philips

Tape, one attachi containing therein saree of his mother, Camera and left the

T.V. behind his house. The accused persons also assaulted his father. After

commission of dacoity, P.W.-1 and his family members came towards the

Chowk and told to people about the dacoity. He identified Bhim Mian

present in the dock and stated that he will identify other three accused

persons, if brought before him. In cross-examination, this witness says that

Daroga Ji had interrogated him and recorded his statement. P.W.-1 had told

the name of all four accused persons to Daroga Ji. He also told that he was

familiar with these four accused persons and after occurrence, about 50-100

persons were gathered there and he told them in regard to the occurrence.

11.2 P.W.-2, Baijnath Prasad Verma, in his examination-in-chief, says

that the occurrence was of 24.03.2001, it was 02:30 O'clock of night. He

was sleeping in his house, he heard the alarm and came to know that dacoity

was committed in the house of Kedar Singh (informant). He reached to the

house of Kedar Singh. About 30 persons of the village were gathered there.

The wife of Kedar Singh was stating that dacoits had assaulted them, she

showed her injuries. She stated that the dacoits had taken their golden chain,

T.V., cloths etc. This witness stated that he did not identify any dacoit at the

spot.

11.3 P.W.-3, Ramdev Saw, in his examination-in-chief, says that the

occurrence was of 23.03.2001. It was 01:00 O'clock of night. He was

sleeping out of the house, all of a sudden, he heard the sound of dog barking.

He came to know that the noise was coming from the house of Kedar Singh.

He did not go to the house of Kedar Singh. This witness was declared hostile

and he denied the statement given to the Investigating Officer during

investigation under Section 161 of the Code of Criminal Procedure.

11.4 P.W.-4, Kedar Singh, who is the informant himeslf. This witness, in

his examination-in-chief, stated that the occurrence was of 24.03.2001 of

night. He was sleeping in the veranda of his house. Two persons came and

asked to open the door of the house. His wife Dropadi Devi awoke, she

came and opened the door. 3-4 persons intruded in the house, two of them

caught hold of him. The dacoits began to assault his wife and asked to give

the household articles of the house. His wife was also criminally intimidated.

The dacoits also caught hold of his son and assaulted him. Total dacoits were

eight in number. They began to take the articles of the house in their custody.

When the witness Israil Mian wanted to come to his house, he was

obstructed by the dacoits on the point of pistol. He and his wife identified

four dacoits, namely, Bhim Mian, Jainul Mian, Arjun Saw and Rewat Mian.

They carried away Radio two-in-one Tape, Camera, Rs.9500/- in cash,

jewellery, cloths and T.V. was left by them behind the house. The written

information was given under his signature, which is marked as Exhibit-1 and

the signature of the informant marked as Exhibit-1/1. He identified the

accused Bhim Mian in the dock. In cross-examination, this witness says that

he has told Daroga Ji in statement that he had identified dacoits. His wife

was working as Nurse before the date of occurrence. There was dispute

between his wife and Jainul Mian, Arjun Saw and Rewat Mian.

11.5 P.W.-5, Nasir Mian, in his examination-in-chief says that the

occurrence was of four years ago. It was 02:00 O'clock of night. He heard

the alarm and went to the house of Dropadi Devi, who was raising alarm. He

heard that the dacoits were committed dacoity in the house of Dropadi Devi.

He did not see any of the dacoit. Many persons had gathered on the place of

occurrence. He had not talked with any of them.

11.6 P.W.-6, Dropadi Devi, in her examination-in-chief, says that the

occurrence was of 24.03.2001. It was 02:00 O'clock of night. She and her

son Anil Kumar were sleeping in the room and her husband was sleeping on

veranda. 3-4 persons came and asked her husband to open the door when she

awoke and opened the door of the house, she saw 7-8 persons standing out

of the house. Dacoits were armed with pistol, bomb and garansa. They asked

not to raise alarm otherwise they would kill them. She identified all of them

in the light of torch, who were identified as Bhim Mian, Arjun Saw, Jainul

Mian and Rewat Mian. The dacoits had taken away the golden chain, golden

bangle, golden earrings, silver payal, watch and Rs.9500/- in cash, Philips

two-in-one Tape, Camera, Philips Radio, Attachi (Supreme Company)

containing therein her Saree and T.V was left by them behind her house. She

sustained injury on her head and waist. Dr. Ashok Choudhary given

treatment to her. On alarm, when Israil Mian wanted to come to the house of

Dropadi Devi, the dacoits restrained him to enter into the house. She

identified the accused Bhim Mian in the dock. In cross-examination, this

witness says that she has no concern with Bhim Mian. The dispute was with

Jainul Ansari, Arjun Saw and Rewat Mian due to illegal abortion. After

commission of dacoity, she told the name of the accused. No receipt of

jewellery was given to Daroga Ji by her. Whether the police have recovered

any article of the said dacoity, she was not aware.

11.7 P.W.-7, Md. Israil Ansari, in his examination-in-chief, says that the

occurrence is of 24.03.2001. It was 02:15 O'clock of night. At that time, he

was sleeping at his shop. When he heard alarm, he came out and saw at the

distance of 50 ft. that Dropadi Devi was caught hold by one person and he

was assaulting her. The persons of the locality scolded him and he went back

to his shop. He did not recognize any of the dacoits, so he cannot tell the

name of any one of the dacoit. He is not aware what articles were taken by

the dacoits. At the time of occurrence, he did not identify Bhim Mian or any

other accused.

12. Before analyzing the evidence adduced on behalf of the prosecution,

it would be appropriate herein to give certain statutory provisions of law,

which are reproduced hereinbelow:

12.1 Section 391 of the Indian Penal Code, 1860 reads as under:

391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".

12.2 Section 395 of the Indian Penal Code, 1860 reads as under:

395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

13. From perusal of the FIR, it is found that this FIR was lodged against

Bhim Mian and five unknown persons by P.W.-4, Kedar Singh (Informant).

In the whole of the FIR, except the accused Bhim Mian name of the other

accused in committing dacoity is not shown. Only it is stated that one year

ago from the date of occurrence, Arjun Saw, Jainul Mian had been harassing

the wife of informant. In the month of May, 2000, Jainul Mian had also

made allegations against her wife in regard to the illegal abortion. This

allegation was totally false since his wife went to Delhi for her treatment.

These accused persons had been continuously harassing and criminally

intimidated his wife and these persons said to have committed dacoity. These

persons were instrumental in committing dacoity in his house.

14. During examination before the learned trial Court, the informant has

developed the prosecution story as given in the FIR. He has stated that

he and his wife had identified the dacoits, namely, Bhim Mian, Jainul

Mian, Arjun Saw and Rewat Mian. He has also stated the name of all

these dacoits to Daroga Ji. If the same is not mentioned in his statement, he

may not say the name of dacoits.

15. P.W.-1, Anil Kumar, who is the son of informant, also stated that on

the night of commission of dacoity, 8-9 persons had come, who were outside

the house and 4-5 persons intruded in the house. He recognized Jainul

Mian, Arjun Saw, Rewat Mian and Bhim Mian. These four persons

were idenfied by him and they committed dacoity and also assaulted

him and his mother, due to which, his mother sustained injury and the

household articles, jewellery, golden chain, silver ornaments, Rs.9800/-

in cash taken away. All the articles worth Rs.70000/- to 80,000/- were

carried away by the dacoits.

16. P.W.-6, Dropadi Devi, who is the wife of the informant, in her

statement, stated that four persons intruded in the house. Eight persons

were standing out of the house. She identified all the dacoits armed with

pistol, bomb and garansa. She identified Jainul Mian, Arjun Saw, Bhim

Mian and Rewat Mian in the light of torch. She also stated that the

articles which were taken away by the dacoits after committing dacoity. She

also stated that she sustained injuries on her head and waist. She also stated

that she has told the names of dacoits to Israil Ansari, Baijnath Verma as

well.

17. P.W.-7, Israil Ansari was also stated that on hearing alarm he came

out of the house on the night of commission of dacoity. He was sleeping in

his shop and heard that dacoity was committed in the house of Dropadi Devi

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but the people asked to go back and he went back to his shop. He did not

identify any of the dacoits at the spot. He cannot tell the name of any of

the dacoits. At that time, Dropadi Devi was crying that the dacoity was

committed in her house.

18. P.W.-2, Baijnath Prasad Verma is the hearsay witness. His

testimony is not admissible. P.W.-3, Ramdev Sao has turned hostile and

he has not corroborated the prosecution story. P.W.-5, Nasir Mian is also

the hearsay witness, he stated that he did not identify any of the dacoits

and he reached at the place of occurrence much after commission of

offence. Many persons had gathered there.

19. From the testimony of P.W.-1, Anil Kumar, who is the son of Kedar

Singh (informant), P.W.-4, Kedar Singh, the informant himself and P.W.-6,

Dropadi Devi, who is the wife of the informant, it appears that these three

persons were inmates of the house rather the natural witness of the

occurrence. These three persons have stated that about four persons

intruded in the house and committed dacoity. All four dacoits have been

identified among the dacoits were Bhim Mian, Arjun Saw, Jainul Mian

and Rewat Mian. There is no explanation on behalf of the prosecution that

the names of Jainul Mian, Arjun Saw and Rewat Mian were not disclosed in

the FIR in commission of dacoity, only the enmity is shown against them on

the issue that the false allegation was made against the wife of informant,

namely, Dropadi Murmu in regard to the illegal abortion of the females. If

all the three witnesses have identified, four dacoits at the place of

occurrence why their names were not disclosed in the FIR and even

their names were not disclosed by them to the Investigating Officer in

the statement under Section 161 of the Code of Criminal Procedure.

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20. In this case on behalf of the prosecution, the Investigating Officer

was also not examined; but from perusal of the statement of Dropadi

Devi in paragraph No.7 of the case diary, the restatement of Kedar

Singh in paragraph No.4 of the case diary statement of Anil Kumar in

paragraph No.8 of the case diary, it is found that all have corroborated the

prosecution story but they have not stated that among the dacoits Arjun Saw,

Jainul Mian and Rewat Mian were also dacoits. The Investigating Officer

during investigation did not find the complicity of Jainul Mian, Rewat

Mian and Arjun Saw. He filed charge-sheet for the offence under

Section 395 of the Indian Penal Code against Bhim Mian. It is also stated

that while giving the conclusion in the charge-sheet by the Investigating

Officer, he could not trace out the other co-accused in commission of the

dacoity. Only the charge-sheet was filed against Bhim Mian, the

appellant herein. For the commission of offence of dacoity, it is necessary

that there must be at least five persons, who had conjointly committed or

attempted to commit robbery. Non-examination of the Investigating

Officer during trial is fatal to the prosecution. It was the Investigating

Officer, who could flash light that how many persons were involved in

commission of dacoity though he could not trace out them.

21. In this case, no Test Identification Parade was conducted by the

Investigating Officer. Since in the FIR, only the name of Bhim Mian was

disclosed though the name of three other persons were shown in the FIR in

regard to show enmity with the wife of informant; yet none of the

prosecution witness had named the other three accused persons, namely,

Arjun Saw, Jainul Mian and Rewat Mian in their statement under

Section 161 of the Code of Criminal Procedure, but they developed their

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statement during examination and stated that P.W.1, Anil Kumar, son of

the informant; P.W.-4, Kedar Singh, the informant and; P.W.-6, Dropadi

Devi, wife of the informant had identified four dacoits during investigation.

The Investigating Officer found no complicity of these three accused,

namely, Jainul Mian, Arjun Saw and Rewat Mian. He found only the

evidence against the accused Bhim Mian. Even there is no evidence that

how many persons were involved in commission of dacoity; while as per

testimony of P.W.-1, Anil Kumar; P.W.-4, Kedar Singh and; P.W.-6

Dropadi Devi only four persons had intruded into the house among

them, namely, Bhim Mian, Arjun Saw, Jainul Mian and Rewat Mian.

22. Further, there is no recovery of any of the articles, which were

taken away by the dacoits in dacoity. There is no evidence in regard to

list of articles, which the dacoits had carried out in commission of

dacoity. The non-examination of the Investigating Officer, who could

flash light on all these materials, is found fatal to the prosecution case.

23. Herein, it would be relevant to give the certain legal propositions of

law as laid down by the Hon'ble Supreme Court, which are reproduced

hereinbelow:

23.1 The Hon'ble Supreme Court in the case of Rajesh Yadav & Anr. ETC.

Vs. State of U.P. reported in 2022 LiveLaw (SC) 137 has held that "the

evidence of the investigating officer is not indispensable. The evidence is

required for corroboration and contradiction of the other material witnesses

as he is the one who links and presents them before the court." Paragraph

No.25 of the aforesaid judgment reads as under:

25. Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected

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by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held:

"18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, theinvestigating officer has not been examined by the prosecution. It is an accepted principle that non- examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186], it has been opined that when no material contradictions have been brought out, then non- examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the

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present case is one where the investigating officer should have been examined and his nonexamination creates a lacuna in the case of the prosecution."

23.2 The Hon'ble Supreme Court in the case of Dhanapal & Ors. Vs. State

by Public Prosecutor reported in 2009 (67) ACC 697 has held that "It is for

the prosecution to prove its case the bounden duty of the Court is to deal

with the evidence as it is. Improvement and rewriting of the evidence is not

permissible."

23.3 The Hon'ble Supreme Court in the case of Sampat Kumar Vs.

Inspector of Police, Krishnagiri reported in 2012 (77) ACC 251 has held

that "In criminal trial, testimony of a witness in Court that he saw the

appellant standing near the deceased. No such statement was given by him to

the police under Section 161 of the Code of Criminal Procedure. Witness did

not disclose it to any one for a period of five long years wholly unsafe to

base the conviction on testimony of such a witness."

23.4 The Hon'ble Supreme Court in the case of Lakshman Prasad Vs.

State of Bihar, reported in 1981 SCC (Cr.) 642 held at paragraph No.3,

which reads as under:

"3. The central evidence against the appellant consisted of the testimony of PWs 1 and 2 who were the servants of complainant PW 4 Baijnath Prasad. It appears from the evidence that Baijnath Prasad was a rich businessman of the locality and the accused-appellant Lakshman Prasad was his next door neighbour having a double storey house. Both the courts below have accepted the prosecution case that a dacoity took place in the house of Baijnath Prasad in the course of which cash and other articles were stolen away. In the instant case, counsel for the appellant has not challenged this finding of the courts below. We are also satisfied that a dacoity undoubtedly took place in the house of Baijnath Prasad. The only question that falls for consideration is whether or not the appellant participated in the crime. PWs 1, 2 and 4 have supported the prosecution case that the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. Sometimes even falsehood is given an adroit appearance of

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truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellant is concerned. In the first place, admittedly the appellant was a respectable man in the sense that he was possessed of sufficient means and was a well known homeopath doctor and also the neighbour of the complainant. In this view of the matter, it is difficult to believe that he would commit dacoity in the house of his own neighbour and that too in the early hours of the evening, so that he may be caught any moment and take the risk of a conviction under Section 395 of the Penal Code, 1860. Secondly, the evidence of the complainant PW 4 clearly shows that the dacoits had no doubt concealed their identity but they did it in such a way that their faces were visible. Indeed, if the appellant had participated in the dacoity and taken the precaution of concealing his identity, then he would have seen to it that his face was fully covered so that identification by the complainant or the witnesses would become impossible. If he was a dare-devil, then he would not have concealed his identity at all. Thirdly, FIR having been lodged the same evening the police visited the house of the appellant next morning and found him there. If the appellant had really participated in the dacoity, he would have at least made himself scarce. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The complainant himself admits that there is a boundary wall around the house of the appellant and there is a road which runs to the east of his house and the mill of the complainant is situated to the west of the house. There is evidence of DW 2 that there has been some dispute between Baijnath Prasad and accused Lakshman Prasad two or three years before the occurrence of dacoity in respect of a passage near the house of accused Lakshman Prasad through which he used to go to his mill. The evidence of DW 2 does support what the complainant has himself admitted. The gravest provocation which the complainant must have felt was the fact that Lakshman Prasad bought a piece of land near his house from Kishori Lall, the nephew of Baijnath Prasad. This is proved by Ex. Kha and the evidence of DW 4. The High Court also observed that the sale deed executed by the nephew of the complainant in favour of the appellant was executed only a month before this occurrence. This therefore furnishes an immediate motive for the false implication of the appellant. Another important circumstance which seems to have been overlooked by the courts below is that PW 4 has clearly admitted in his evidence at p. 44 of the paper- book that immediately after the occurrence, a number of people near the mosque assembled, of whom he recognised Suba Raut and Moti Raut, but they never came to his help. The witness also says that when he came from the west, he saw 40 to 50 persons at a little distance, including Ganesh Raut, Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these

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neighbours have been examined to support the complainant's version that the appellant had participated in the occurrence. It seems to us that the reason why these persons did not choose to support the complainant was that perhaps the appellant had been falsely implicated and hence the persons who had assembled may not have relished the idea of supporting the complainant if he had gone to the extent of falsely implicating the appellant in the dacoity. These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellant in the dacoity. It is well-settled that while witnesses may lie, circumstances do not."

23.5 The Hon'ble Supreme Court in the case of Krishna Gopal Singh and

Ors. Vs. State of U.P., reported in 2000 SCC (Cr.) 93 held at paragraph

No.4, which reads as under:

"4. It is admitted by the learned counsel for the respondent State that none among the appellants is alleged to have inflicted any injury to any other person or to have intimidated any person with injury. For sustaining a conviction under Section 395 IPC a finding is the sine qua non that the appellants have committed the offence of robbery and if the number of the assailants crossed (sic reached) the figure of five the offence would escalate to Section 395. But accepting the entire allegations against the appellants to be true we fail to notice any material to bring the offence within the contours of the definition under Section 390 (robbery) IPC. In view of the aforesaid deficiency learned counsel for the respondent State could not persist with his contention for sustaining the conviction under Section 395 of the Penal Code, 1860. The section has to go out from the purview of the convictions consequently."

24. In view of the analysis of the evidences on record and also keeping in

view the statutory provisions of law as laid down by the Hon'ble Supreme

Court, it is found that the prosecution has miserably failed to prove the

charge against the appellant under Section 395 of the Indian Penal Code

beyond reasonable doubt. The judgment of conviction and the order of

sentence passed by the learned Court below based on perverse finding needs

interference and this Criminal Appeal deserves to be allowed.

25. Accordingly, the impugned judgment of conviction and the order of

sentence passed by the learned Court below is set aside and this Criminal

Appeal is hereby allowed.

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26. The appellant is acquitted from the charge levelled against him. The