Patna High Court
Ram Sogarath Paswan vs The State Of Bihar on 21 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.275 of 2013
Arising Out of PS. Case No.-242 Year-2011 Thana- MANIGACHI District- Darbhanga
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Ram Sogarath Paswan S/O Late Kirti Paswan Resident Of Village- Bela
Gopalpur, P.S.- Sadar Darbhanga, District- Darbhanga
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kr. Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 21-03-2025
Heard Mr. Ajay Kumar Thakur, learned counsel
for the appellant and Mr. Bipin Kumar, learned APP for the
State.
2. The present appeal has been filed under
Section 374 (2) of Code of Criminal Procedure, 1973
(hereinafter referred as 'Cr.P.C') challenging the Judgment of
conviction dated 22.03.2013 passed in Sessions Trial No. 192 of
2012 in connection with Manigachhi P.S. Case No. 242 of 2011
passed by learned Sessions Judge, Darbhanga, whereby and
where-under the appellant has been convicted for the offence
under Section 395 of Indian Penal Code (hereinafter referred as
'IPC') and acquitted for charges under Sections 397 and 412 of
the IPC and vide order dated 22.03.2013 sentenced to undergo
rigorous imprisonment for a period of seven years under Section
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395 of IPC with fine of Rs. 5000 and on failure of payment of
the fine, the appellant will further be sentenced to simple
imprisonment for three months.
3. The brief facts leading to the filing of the
present appeal is that, on the night of 19.12.2011 after taking
dinner the informant along with his family members were
sleeping in the house. At about 1.30 AM in the mid-night on
hearing some sound the informant and his wife woke up and
suspecting some misshappening raised alarm loudly shouting
Chor-Chor. In the mean time, the miscreants started knocking
the door and out of fear the informant opened the door. 2-3
miscreants entered into the room and firstly they took two
mobile phones kept on the trunk and thereafter they asked for
the key of Godrej. The miscreants tried to snatch the ear-tops
which was worn by the informant's wife and on her protest they
assaulted her with fists and slaps and forcibly snatched the ear-
tops which caused injury in both the ears. It is further alleged
that the miscreants started committing loot-pat after breaking
the locks of the Almirah, trunk, attachi etc. and four other
miscreants who were standing in varandah also committed loot-
pat in the nearby room by breaking the locks of room and they
locked the door of room from outside. The informant gave the
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age and figures of the miscreants. It was alleged that the
miscreants after committing dacoity in the house of informant
also committed dacoity in the house of one Jagdish Paswan. In
the alleged dacoity the miscreants took away mobile phones,
cash amount worth Rs.10,000/- and ornaments from the house
of informant and also took away golden ornaments and cash
amount of Rs. 15000/-and mobile phones from the house of
Jagdish Paswan. After committing dacoity the dacoits fled away.
4. On the basis of such fardbeyan, a formal F.I.R
bearing Manigachhi P.S. Case No. 242 of 2011 dated 20.12.
2011 was filed under Sections 395 and 397 IPC against 12-13
miscreants and the investigation was commenced. On
completion of investigation the IO submitted charge-sheet no.
59 of 2012 dated 25.03.2012 for offences under Sections 395,
397 and 412 of IPC against the appellant. Learned Chief
Judicial Magistrate took cognizance of the offences under
Sections 395, 397 and 412 IPC against the accused/appellant
and transferred the case record to the court of Judicial
Magistrate Ist Class, Darbhanga for commitment and ultimately
the learned Magistrate committed the case to the Court of
Session.
5. To prove the charges against the accused
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person, prosecution has examined altogether ten witnesses and
they are PW-l Devkant Jha, PW-2 Kapil Kumar, PW-3 Jagdish
Paswan, PW-4 Krishnakant Jha, PW-5 Hemkant Jha, PW-6
Chandrakala Devi, PW-7 Gulab Paswan, PW-8 Ram Bilas
Paswan, PW-9 Raj Kishore Singh, and PW-10 Hari Shankar
Mishra.
6. Beside the above prosecution has produced
and proved Ext.1 signature of PW-1 on fardbeyan, Ext. 2
endorsement on fardbeyan, Ext. 3 carbon copy of T.I.P chart,
Ext.4 Seizure list and Ext.5 Formal F.I.R.
7. PW-1 Devkant Jha has stated in his
examination-in-chief that dacoity was committed in his house
on 19.12.2011 at 1.30 AM in the mid-night and at that relevant
time he was sleeping along with his wife inside the house. Three
miscreants entered into the house by breaking the door and 2-4
miscreants who were standing outside snatched the ear-tops of
his wife and two other miscreants who entered into room broke
the lock of Godrej and they also broke the locks of other room
and threw the house-hold articles in the courtyard. The dacoits
committed dacoity of golden as well as silver ornaments, two
mobile phones and two torches and cash worth Rs. 10,000/-.
PW-1 further stated that the miscreants were twenty in numbers
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and they were armed with chaku in their hands. PW-1 further
stated that the dacoits also committed dacoity in the house of
Jagdish Paswan (PW-3). He identified his mobile phone at the
police station which was looted away from his house. The police
had recorded his fardbeyan and the contents were read over to
him and after understanding the same he put his signature over
the same. This witness proved his signature on the fardbeyan
which is as marked Ext. l. This witness claimed to identify the
accused present in court.
7.i. In his cross-examination PW-l has stated that
he identified the accused by face but he did not go to jail in
order to identify the accused. The police had come to his house
in order to make him participate in T.I.P but just after the
alleged incident PW-1 had gone to Kolkata for 10-15 days so he
could not go to jail to identify the accused in T.I.P. He further
stated that there was just one person in the dock and hence, he
identified him as the accused/appellant. He further stated that he
was not eye-witness to the dacoity that took place at the other
place of occurrence.
8. PW-2 Kapil Kumar is the son of Jagdish
Paswan, (PW-3) in whose house dacoity was committed on the
alleged night of occurrence. He stated in his examination-in-
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chief that the dacoity took place in his house at 1.30 AM. in the
night and at that time he was in the cattle-shed. The dacoits were
14-15 in number and they committed dacoity in the house and
looted away ornaments, cash, mobile phones and other house-
hold articles. He further stated that he had participated in T.I.P
in which he identified the accused. The dacoits were armed with
pistol, chaku and bamboo stick. PW-2 claimed to identify the
accused present in the dock at court.
8.i. In his cross-examination PW-2 stated that
some of the accused had covered their faces. In para-8 of his
cross-examination PW-2 stated that he did not receive notice
from the jail in order to identify the accused but he has
supported with regard to fact that he had identified the accused
in jail among 10-12 persons who were lodged in jail.
9. PW-3 Jagdish Paswan stated in his
examination-in-chief that dacoity was committed in his house at
1.30 AM in the night. The dacoits entered into the house and
locked the inmates of the house in a room and then they
committed dacoity of ornaments, cash amount worth Rs.
15,000/- and they also damaged the household articles. He
further stated that he did not remember the faces of the accused.
9.i. In his cross-examination PW-3 stated that on
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the alleged night it was very cold and when the accused entered
into his house, he along with others out of fear remained
beneath the blanket and kept silent and because of this he could
not see and identify any of the accused.
10. PW-4 Krishnakant Jha and PW-5 Hemkant
Jha have been declared hostile by the prosecution.
11. PW-6 Chandrakala Devi is the wife of the
informant. She stated in her examination-in-chief that the
occurrence took place on the night of 19.12.2011. The dacoits
broke into her house with arms and weapons and snatched the
ear-tops which she was wearing. It resulted in injury to her ears.
In her cross-examination she stated that she could not identify
the accused dacoits as they had concealed their faces.
12. PW-7 Gulab Paswan stated in his
examination-in-chief that 20-25 dacoits were there and
occurrence took place at night. PW-8 Ram Bilas Pawan stated in
his examination-in-chief that he did not know how many
accused committed dacoity at the house of PW-1 and PW-3.
13. PW-10 Hari Shankar Mishra is the
Investigating officer of the case. In his examination-in-chief he
stated that on 20.12.2011 he was posted as S.H.O. of
Manigachhi Police Station and he recorded fardbeyan of the
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informant at 4:30 PM which is in his pen and signature and
endorsement over the same is marked Ext. 2. He stated that he
carried out investigation of the case, recorded statements of the
informant and other witnesses and visited place of occurrence
which is the house of informant Devkant Jha. PW-10 gave the
description of house and during the inspection he stated that he
found that the household articles were scattered and the locks of
almirah, and trunk were damaged. PW-10 stated that he also
visited the second place of occurrence which is house of Jagdish
Paswan and found the trunk and almirah to be badly damaged.
PW-10 stated that the T.I.P was conducted in the jail in the
presence of judicial Magistrate wherein. He further stated that
during investigation he recovered a Nokia Mobile Set No. 6310
which was looted in the alleged dacoity from the possession of
accused/appellant and prepared a seizure list which was in his
pen and signature and marked as Ext. 4 with objection. During
course of investigation he recorded confessional statement of
accused and obtained injury report of the wife of informant.
13.i. In his cross-examination, the I.O stated that
he did not seize damaged articles and further he did not send the
seized mobile for scientific examination.
14. PW-9 Raj Kishore Singh is the second I.O of
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the case, who took up investigation of the case on transfer of
PW-10 and submitted charge-sheet against the accused/appellant
and kept supplementary investigation pending against the other
accused persons. In his cross-examination he stated that he did
not record the statement of any witness and only submitted
charge-sheet.
15. Learned counsel for the appellant has
submitted that when the incident took place, it was late in the
night and there was no source of light at the place of occurrence
mentioned in the F.I.R. The occurrence took place at 1:30 AM
on a winter night and there was no source of light at the place of
occurrence. He further submitted that the FIR was registered
against unknown persons. He further submitted that out of 10
prosecution witnesses, only two witnesses identified the
accused/appellant. The counsel further submitted that the T.I.P
conducted was not legal as the Magistrate in whose presence the
identification was conducted was not examined. The counsel
further submitted that PW-1 identified the appellant for the first
time in the Court as he did not participate in the T.I.P conducted
at the jail premises. The counsel further submitted that PW-10,
the I.O did not state when and where the accused/appellant was
arrested. He further submitted that the learned trial Court failed
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to appreciate the evidence in it's right perspective and the
impugned judgment of conviction is bad in law as well as on
fact and such to set aside.
16. Learned counsel for the appellant has relied
upon the judgment of Shaikh Umar Ahmed Shaikh and Anr. v.
State of Maharashtra (1998) 5 SCC 103 where it was held that
if identification in the TIP has taken place after the accused is
shown to the witnesses, then not only is the evidence of TIP
inadmissible, even an identification in a court during trial is
meaningless. Even a TIP conducted in the presence of a police
officer is inadmissible in light of Section 162 of the Code of
Criminal Procedure, 1973 (Chunthuram v. State of
Chhattisgarh (2020) 10 SCC 733 and Ramkishan Mithanlal
Sharma v. State of Bombay (1955) 1SCR 903).
17. On the other hand, learned Additional Public
Prosecutor has vehemently opposed this appeal and submits that
there is direct allegation against the present appellant, for
dacoity. In view of the aforesaid statements and the evidence on
record, learned trial Court has rightly convicted the appellant
and the present appeal should not be entertained.
18. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
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defence before the Trial Court. I have thoroughly perused the
materials on record and aforesaid judgments referred by the
appellant as well as given thoughtful consideration to the
submissions advanced by both the parties.
19. Having deeply studied and scrutinized the
facts and the material on record of the present case, it is evident
to note that there was no description of source of light
mentioned in the FIR and neither did the investigating officer
mention about the source of light when he reached at the two
places of occurrence. The statements of PW-3 and PW-6 who
were the eye-witnesses to the alleged occurrences clearly reveal
that they did not see the faces of the accused. PW-3, Jagdish
Paswan stated that out of fear, he did not get out of his blanket
whereas PW-6, wife of informant stated that the dacoits had
their faces covered. It is also noted that the I.O did not state the
time and place of arrest of the appellant. The credibility of the
T.I.P is also doubtful as the Magistrate in whose presence it was
conducted was not examined. Further, as per the statements of
the informant, PW-1 the I.O had come to the informant's house
to tell him to come to the police station to identify the appellant
as one of the accused. The statement of PW-1 also reveal that he
identified the appellant for the first time in the Court itself.
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20. The prosecution has not established its case
beyond all shadow of reasonable doubt. Apart from the TIP, I
find no other evidence put forth by the prosecution to prove the
guilt of the accused for the offences punishable under Section
395 of the Indian Penal Code. Since the prosecution has not
been able to prove its case, the accused/appellant is hereby
given the benefit of doubt and accordingly, the appeal is
allowed.
21. Hence, the Judgment of conviction dated
22.03.2013
passed in Sessions Trial No. 192 of 2012 arising out
of Manigachhi P.S. Case No. 242 of 2011, passed by learned
Sessions Judge, Darbhanga is set aside and the
accused/appellant is acquitted from the charges leveled against
him. As the appellant is on bail, he is discharged from his
liability of bail bonds.
(Ramesh Chand Malviya, J)
Mayank/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 22.03.2025
Transmission Date 22.03.2025
