RAMASHISH CHAMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant has been convicted under section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years.

(2.) THE prosecution case, in short, is that in between the night of 19/20th May, 1985 the informant was sleeping with his brothers, son and one Jagdish Sah on the roof of his cloth shop. It has been alleged that all of a sudden his son Birendra Prasad woke up on hearing the sound of breaking of door planks. The informant and others woke up, raised Hulla and started throwing bricks bats on dacoits. In the meantime, one of dacoits fired injuring the son of the informant Birendra Prasad. The dacoits and the informant party were flashing their torches on each other. The dacoits were 15 to 20 in numbers and they also remained in the shop for 15 to 20 minutes and looted the property worth Rs. 10,000/ -. The informant claimed to identify the dacoits. The dacoits fled away after the arrival of the villagers. The informant had given a list of articles looted from his shop. The dacoits also assaulted one of the villagers Ram Kawal Kumhar. On the basis of the statement of the informant a formal F.I.R. was drawn up under sections 395 and 397 of the Indian Penal Code against unknown. The police started investigation and after completion of the same submitted charge sheet against the appellant. Accordingly cognizance was taken and the case was committed to the court of sessions and trial concluded with the result as stated above. The appellant pleaded not guilty.

(3.) NONE of the witnesses has identified the appellant in course of dacoity, although they have supported that the dacoity was committed in the house of the informant. As such, they have only supported the factum of dacoity. The informant P.W. 10 has stated that in the night between 19/20th May, 1985 while he was sleeping on the roof of his shop with his brothers and son, all of a sudden his son woke up on hearing the sound of breaking of door planks. He as well as his brothers also woke up and raised alarm. According to him, he started throwing brick bats on the dacoits. In the meantime one of the dacoits also fired which injured his son, Birendra Prasad. He has further stated that the dacoits were flashing their torch and he was also flashing his torch. The dacoits ramained in the shop for about 20 minutes and looted property worth Rs. 10,000/ -. According to him, when the villagers assembled, the dacoits fled away. He has given list of looted articles from his shop. He went to the police station and his Fardbeyan was recorded and on the basis of his Fardbeyan first information report was registered against unknown persons. He has further stated that on 3.6.85 a T.I. Parade was conducted and in the T.I. Parade he identified appellant and one co -accused Barhu Sah. According to P.W. 12, K.N. Rai, Judicial Magistrate on 15.6.85 he was posted at Sasaram. By the order of C.J.M., Sasaram, he went to Sasaram District Jail for holding T.I. Parade. According to him, in the T.I. Parade the informant identified the appellant and the informant told him that he had identified the suspect when he was fleeing away with the looted articles. P.W. 13 has also stated that on 3.6.85 he was posted as Judicial Magistrate Sasaram and he went to District Jail for holding T.I. Parade. The informant P.W. 10 identified one co -accused Barahu Sah.