MAHESHWAR RAIALIAS SIPAHI RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants have been convicted under Sections 395 and 397 IPC and sentenced to RI for ten years and seven years respectively by a judgment dated 08.06.1994 in S.Tr. No 109 of 1993/3 of 1994 passed by 1st Additional Sessions Judge, Vaishali at Hajipur. The case of the prosecution is that a dacoity was committed in the house of Arbind Kumar @ Madhuji in the night between 27/28.08.1992 and during chase some accused persons were caught by the villagers and produced before the Officer In -charge where the First Information Report was instituted. The prosecution to prove its case examined ten witnesses in all out of whom P.W 1, P.W 2 and P.W. 5 are on the factum of the occurrence and on the point of attending the Test Identification Parade with regard to articles having been recovered from the alleged dacoits. P.W. 3 is the brother of the informant who is also on the factum of the occurrence as also that the dacoits had been caught after the occurrence by some villagers. P.W. 4 is the informant of the case and has deposed on the same lines as P.W. 4. P.W. 7 is the Doctor who examined the injured and P.W. 8 is the BDO who conducted the Test Identification Parade of the articles and P.W. 9 is the Investigating Officer. P.W. 10 and P.W. 6 are tendered and formal respectively.

(2.) It has been submitted on behalf of the appellants that as per the prosecution case the appellants had been arrested by some villagers soon after the dacoity but none of the villagers have been examined on behalf of the prosecution. The further submission is that it is conceded by P.W. 3 that the accused persons had been arrested in the wee hours of 28.08.1992 about 5 -6 Kilometers from his village and, therefore, the prosecution case is not completely reliable on the point that the accused persons who had been caught were in fact the persons who had committed dacoity in the house of the informant on the night of 27/28.08.1992. The next submission is that even though the appellants were allegedly caught by the villagers right after the occurrence no recovery was effected from their possession and it does not appear probable that they would carry the looted mobiles 5 -6 Kms. only to be caught by some villagers and exposes themselves to prosecution.

(3.) On going through the evidence on record, this Court finds it difficult to accept the prosecution case in its entirety on the question of participation of the appellants because admittedly the appellants were arrested 5 -6 KMs. away the next morning by some villagers who have not been examined during trial. In view of such, the judgment dated 08.06.1994 passed by the 1st Additional Sessions Judge, Vaishali at Hazipur in S.Tr. No. 109 of 1993/3 of 1994 is set aside. The appellants are discharged of liability of their bail bonds.