SUGGI BIND Vs. STATE

JUDGEMENT

(1.) A limited rule was issued by this Court in this case on the question of sentence only. While dealing with this aspect of the matter, the entire evidence has been placed before me. Both the petitioners have been found guilty of an offence under Section 457, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months each. They were also found guilty under Section 380, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months each. For the offence under Section 457, Indian Penal Code, each of them has further been fined a sum of Rs 200, or in default, to suffer rigorous imprisonment for one month. The petitioners were, first, tried by the Munsif-Magistrate of Arrah, who passed the above mentioned order of conviction. Then there was an appeal and the learned second Assistant Sessions Judge of Arrah has upheld that order.

(2.) The facts of the case leading to the present revision may be summarised as under In the night intervening between the 23rd and the 24th day of September. 1965, Manna Bind (P W 1), who is the informant in this case, was sleeping in his house with his wife Rupa (P. W. 2). This house is situate within the town of Arrah in Mohalla Bind tola. At about the midnight Rupa was awakened on hearing the rattling sound of her box She then saw these two persons in the room and Suggi Bind was catching hold of the box. The other fellow was identified as the other petitioner named Gajadhar. Her husband also was aroused and both of them had identified both these persons in the light of the lantern alleged to have been burning in the room Both these petitioners fled away with the box being pursued by P W. 1, who raised hue and cry Thereafter P Ws. 4 and 6 also came then and saw them fleeing away It is further alleged that P. W. 4 identified both of them in the electric light of the street which was burning. P. W 6 had identified only Suggi Bind The informant then went to the police station and lodged a first information report at about 3 AM The police took up the investigation and submitted charge-sheet against both these petitioners. They were tried, as stated earlier by the learned Munsif-Magistrate of Arrah. who convicted them; and this order of conviction hap been upheld bv the court of appeal below.

(3.) Learned counsel appearing on behalf of these applicants has urged that a close examination of the evidence would reveal that the alleged offence of which these two petitioners have been convicted, has not been established at all. After scanning the evidence I think that there is much force in this argument. The very fact that one of these petitioners was fleeing away with a box and was being chased by so many persons but still he was not apprehended and the box itself was not thrown away, makes the whole case very suspicious, In such circumstances if a thief has to make good his escape, he must throw away the box, make himself lighter and then flee away. It is very difficult for a person to carry a bundle or a box which must be heavy and then escape with it although he was being pursued by others. It is further strange that when these applicants were not carrying any weapon in their hands, they were not pursued up to their houses. In that case the stolen box could have been easily recovered by the Mohalla people. Further I find that the lantern, which is said to be the means of identification was not seized by the investigating officer when he went to the place of occurrence. So it cannot be said with any certainty that a lantern in working order giving sufficient light was in the room so as to render identification possible. Another defect in the case is that the witnesses have said that there was an almirah in the house of P. W. 1 from where the box had been lifted. The investigating officer did not find any such almirah in the room but he found a takha, which was shown to him and it was said that the box had been taken away from that takha. The court of appeal below has explained this discrepancy by saying that it is a loose way of saying and the witnesses meant a takha. I am not prepared to accept this explanation. P. W. 1, who is the informant in this case, is certainly inimically disposed towards Suggi Bind. He admitted that he had deposed as a witness in a case filed by one Kalu against Suraj, a mama of Suggi. So admittedly Suggi belonged to a different camp than this witness. P. W. 4 is a fish seller. P. W. 6 is a tamtamwala, A perusal of their statements would show that they have given the evidence in a very general way and their statements cannot inspire confidence. It is further said that on that night the sadar nikas was closed. That being so, the thieves must have scaled over the wall to go inside the angan and thereafter approached the room. Had this been so, some marks of scaling must have been found on the wall, but there was no such indication. In such circumstances, the entire case of the prosecution appears to be highly suspicious and, in my opinion, the benefit of doubt must be given to the petitioners.