Ratnaker Bhengra, J
1. Both these appeals arise out of the same impugned judgment, therefore, they are heard together and being disposed of by this common Judgment.
2. Both these appeals are directed against the judgment of conviction dated 18.02.2003 and order of sentence dated 19.02.2003 in S.T. No. 319 of
1993/ T.R. No. 447 of 2002 passed by learned Additional Judicial Commissioner Fast Track Court, Ranchi whereby and whereunder both the
appellants have been convicted for the offence under section 395 of the IPC and both the appellants have been sentenced to undergo rigorous
imprisonment for five years and they have also been sentenced to pay fine of Rs. 5000/- each in default to undergo further period of six months
imprisonment.
3. The prosecution case, in brief, as per the fardbeyan of the informant Ayub Khan, P.W. 6 that on 05.08.1992 at 9.15 p.m. he was returning home by
a bicycle. When he reached near a small bridge on the Pakka road situated about 1 K.M. southern from the village Paryago he saw that in the Moon-
light night that five to seven criminals were looting the cash and other articles of some villagers of the informant. The informant when asked as to who
were committing the Dacoity then one of the dacoits fired pistol on him which caused injuries on his right thigh by bullet and compelled the informant
also to get down from the Bicycle and to sit down there. Further it has also been alleged that Dacoits also exploded Bombs causing injuries to some of
the villagers. Dacoit also looted the villagers. The informant has further alleged that he has identified the accused Mahboob who fired on him and
when after getting injuries from the pistol when he sat down the accused Mahboob then taken away cash of Rs. 1500/- from his pocket. It is further
alleged that besides the informant the Dacoits had also looted away the cash and other articles from Abdul Rahim, Md. Muktar, Sk. Taibul, Md.
Sahdul, Sk. Juman of Village Chuchkopi. Dacoits had taken cash of Rs. 5,000/- and a bag containing woolen cloths and other articles from Md. Abdul
Rahim after causing injuries to him along with his son by Pistol and Bomb. The dacoits had also looted the cash of Rs. 2000 and wrist watch from
Sardhul Khan. It has also been alleged that the witness Md. Abdul had identified the accused at the P.O. by stating the name as Md. Quyum Ansari
and Samsuddin Ansari and further Md. Sahdul identified Md. Samsuddin and Sk. Jumman identified Mr. Md. Quyum.
4. On the basis of the fardbeyan of the informant FIR was registered as Mander P.S. Case No. 93 of 1992 under Section 395 of the I.P.C. After
submission of charge sheet the cognizance was taken and the case was committed to the court of sessions. The charge under section 395 of the IPC
was framed and explained to the accused to which they pleaded not guilty and claimed to be tried.
5. The prosecution altogether examined seven prosecution witnesses and at the conclusion of the trial the appellants were convicted and sentenced as
aforesaid. Hence, this appeal.
6. P.W. 6 is Ayub Khan he is the victim and the informant of the case. He deposed that the incidence of 2 years ago. On the day of occurrence at
8.30 in the night, he was returning to his home from the Jaltanda Bazar. He was going from Jaltanda to his house. Between the mission and tanger
basti there is a small pool where a big dacoity took place. Mahboob came and said stop, on stopping he fired a shot at him with a pistol. After
assaulting him, he looted Rs. 1500/- from him. He went to the Mander hospital where he was treated. He had given his statement to the police which
the police wrote. The police read it to him and was explained to him, which he, on finding, put his thumb imprint on it. There were five to six persons
with Makbool. He only recognized Makbool. He saw the pistol in Makbool’s hand. On receiving bullet injury, he was in much pain. He has stated
that both the accused who are standing in the dock are from Paryago. He cannot say whether Quyum has a flour mill or not. He further deposed that
he cannot say whether Samsuddin has a cloth shop or not and he does not know. In para 10 he deposed that the face of Makbool was uncovered. He
does not know whether the face of the others were uncovered or not and he cannot say so. The rest were 2/4 feet away from Makbool. The dacoits
had only looted money. The police had not recovered the looted items.
7. PW-1 is Abdul Karim. He had deposed that the incident is of 2 and half years ago and in the evening he was returning from Jaltanda market to his
home. His son was cycling and they were going home. He reached near the pool near Paryago and they heard Dharo, Maro (catch, assault). The
dacoits assaulted him and his son, due to injury he sat down. His son, however, jumped and ran away. He had Rs. 500/- with him which was looted.
He had a rope with him, one aluminum plate, one Woolen shawl and one vest and these were also looted. He was injured considerably and there were
7-8 miscreants. The police had taken him to the hospital. He had deposed that he recognized Quyum and Samsuddin, who are present in the court. In
paragraph no.3 he had deposed that the dacoits had not felled him and his son near the pool. The informant of this case is Ayub. In paragraph 4 he
had deposed that he had told the police that Samsuddin and Quyum are dacoits. Both Quyum and Samsuddin prior to the incidents, he knows the
names of both of them from before.
8. PW-2 is Sheikh Juman. He has deposed that the incident is of two and half years ago and he was returning from Jaltanda Bazar in the evening
after selling some cattle. Ahead of Tangerbasti he reached near a pool. There was a boy with him who was sitting behind him. Quyum came out from
the jungle suddenly and told to stop and also abused. He said that give the money if not he will be killed. He looted Rs. 12830/-. At para 4 he deposed
that he had told to the police that Quyum had put pistol on his chest. He recognized Quyum and Samsuddin in the court.
9. P.W. 3 is Shadul Khan. He deposed that the incident is of two years ago on a Wednesday at night. He had gone to Jaltanda Bazar and was
returning. He reached Tangerbasti. He was going home on cycle. He reached the pool near the Prayago village. There is small Jungle. From that
Jungle suddenly dacoit came out and they told to stop.
They looted Rs. 2000/- and one Alwin Watch. There were 7-8 miscreants. Amongst them he has only recognized Samsuddin and did not recognize
the other accused.
10. P.W. 4 is Sk. Taibul. He has deposed that the incident is of 2 and 1/ 2 years ago and he was returning from Jaltanda to his home. Ahead of
Tangerbasti a small pool is there. When he reached there, then looting was taking place and bombs exploded. His father was with him. The dacoits
caught hold of his father. He, however, ran north and fled and reached the Rail Line. He did not recognize the dacoits. There were 20-25 persons. In
para 5 he deposed that there were 7-8 dacoits and that their faces were covered.
11. P.W. 5 is Mukhtar Khan. He deposed that the incidence is of 2 years ago and they were returning home from Jaltanda. They got down from the
train at Tangerbasti. From there they moved for Chachcopi on cycle. Near the pool, they heard some alarm. He and his father were on a bicycle.
They were getting down from the bicycle when a bomb exploded, he fled. He deposed that he felt that nothing had hit him, however, after sometime
on reaching the Jungle, he saw that he was bleeding from both his hands and from both his feet. He then seeing the blood, became unconscious. The
dacoits had not looted anything from him. He did not recognize anyone.
ARGUMENTS ON BEHALF OF THE APPELLANTS
12. Learned counsel for the appellants has argued that from a perusal of the FIR it can be made out that there is nothing against the appellants, rather
the accused therein is one Makbool. Counsel has further argued that the date of occurrence is said to be 05.08.1992 and the occurrence is at 9.50 pm,
however, the FIR was lodged only on the next day on 06.08.1992 at 10.30 am, so there is considerable delay in lodging of the FIR. Learned counsel
for the appellants also point out that though in the FIR there is reference around 5-7 persons with only Makbool named, however, charge sheet was
only against two persons and also convictions were only against two persons, it does not fulfill the ingredients of the numerical strength required under
section 395 of the IPC. The Charge sheet only mentions the current appellant i.e. Samsuddin and Md. Quyum. However, in the investigation nothing
was found against other persons. Further counsel says it is on record that the supplementary investigation is still going on. Counsel points out that this
is highly absurd in any way a great lacuna or fault on the part of prosecution and investigation and for such lapse the appellants cannot be blamed,
rather they should be given the benefit of clean acquittal. Counsel for the appellants also points out that P.W. 1 who is Abdul Karim and P.W. 2 Sk.
Jamun, allegedly victims and eye witnesses have prior enmity with the appellant Samsuddin. Referring to evidence of P.W. 1 counsel points out that
he has recognized the appellants but what about act is attributed to the appellant is not indicated. He has referred also to the evidence of P.W. 3 who
is Shadul Khan and pointed out that P.W. 3 has deposed that one of the accused took watch from him but who took the watch has not been named.
He has recognized only Samsuddin, however, as from para 10 of his deposition, he knows Samsuddin also in the context of some pending money
dispute, therefore the evidence of P.W. 3 has to be looked with much precaution. Referring then to the evidence of P.W. 2 Sk. Juman, counsel states
that this witness has only deposed that Quyum came out of the forest when there is reference to 6-7 other accused by seven persons. Counsel further
says that it is to be noted that the accusation is against Quyum by this witness, however, he has recognized only Samsuddin in the dock.
13. Learned counsel further argues that under section 313 Cr. P.C. both the appellants were not put proper questions to them and therefore they could
not defend themselves against the correct aspect of the case. Counsel has pointed out that Quyum was not put the question of Rs. 12000/- being
stolen from P.W. 2. Similarly, in a similar way regarding Samsuddin he has said the question was not put to him that he had taken Rs. 2000/- from
P.W. 3. Counsel says that this is an offence under section 395 of the IPC which has to do with looting of various persons and it has been indicated in
the FIR as well as the evidence that money was looted so it was imperative in the light of the evidences that the specific amount looted and from
which persons should have been put to the appellants. This being not done, the procedure against the appellants has not been observed and therefore
the judgment against them is vitiated and their convictions cannot be sustained and upheld.
14. To substantiate his arguments, the following judgments have been cited by the learned counsel for the appellants. Ram Shankar Singh V. State of
Utter Pradesh reported in AIR 1956 (SC) 441, Ram Lakhan V. State of U.P. reported in AIR 1983 (SC) 352, Raj Kumar @ Raju V. State of
Uttranchal reported in 2008(11) SCC 709, Sheikh Maqsood V. State of Maharashtra reported in 2009(6) SCC 583, Krit Sao V. State of Jharkhand
reported in 2015 (2) JBCJ 412[HC].
15. Learned counsel has at the end also without admitting guilt prayed that in any way the offence is of the year 1992 and almost now 25 years have
passed and the appellants have already spent some custody and also undergone the rigors and vigors of trial and therefore the period already spent
may be considered as sufficient punishment. Moreover he has also pointed out that a supplementary investigation report is still yet to come and after
25 years i.e. indeed a great lacuna on the part of the investigation and for that itself, no conviction can even otherwise be held against them.
ARGUMENTS OF THE APP
16. Learned counsel for the State, learned APP, has on the other hand, and argued that it is clear from the evidence of prosecution witnesses that the
offences are made out against the existing appellants. He argues that P.W. 1 Abdul Karim has recognized both the appellants Quyum and Samsuddin.
P.W. 2 Sk. Juman also has recognized both Quyum and Samsuddin. P.W. 3 Sahdul Khan has recognized Samsuddin. Since P.W. 4 and P.W. 5 had
immediately ran away from the place of occurrence, they were not in a position to identify any one. Counsel points out that from the evidences of
P.W.1, 2 and 3, it is enough that their identification is sufficient to sustain conviction and also sustain the sentencing passed by the learned court below.
F I N D I N G S
17. Having heard both counsels, having gone through the records and the evidences; in the facts and circumstances, it is observed and noted that in
the FIR, P.W. 6, who is Ayub Khan informant has stated that there were 5-6 persons who committed dacoity, however, he has only recognized one
Mahboob. He has further said that it was Mahboob who had fired on him with a pistol which injured him on his thigh and that subsequently Rs. 1500/-
was looted by Mahboob from him. As per FIR he recognized only Mahboob and the trial in S.T. No. 319 of 1993/ T.R. No. 447 of 2002 only
proceeded against Quyum Ansari and Samsuddin Ansari, it was not against this Mahboob who has been alleged to have fired the pistol and looted the
informant and was the only persons recognized by the informant. So as far as FIR goes, there is no recognition by the informant of these two
appellants. On the basis of the FIR, though he has mentioned 5-7 persons but only one has been recognized and the conviction in the trial has been
done only for these two appellants. So the question which became very relevant is whether the convictions of these appellants, who has not been at all
named in the FIR, can result in conviction under section 395 of the IPC when the number of person minimally required to constitute the offence is five
in number. This witness i.e P.W. 6, the informant has in his evidence broadly supported his prosecution story, however, herein he has said that along
with Mahboob there were 5-6 other persons. He has conclusively supported that Rs. 1500/- was looted from him and that Mahboob had fired pistol at
him. From the prosecution story as well as from the evidence of the informant himself P.W. 6 it would have been more crucial therefore have the
evidence of the doctor in the case to prove the injuries but however, no doctor has been examined so there was any violence inflicted along with the
alleged offence becomes a crucial issues. In the absence of the examination of the doctor, it is not possible to prove the injuries or whether there was
any pistol fired. Even otherwise there has been no recovery made of the pistol more particularly, of the bullet that should have remained lodged in his
thigh or passed through and been on the ground. Even no blood stained soil was seized. Therefore certain doubt do arise.
18. P.W. 1 is one Abdul Karim who is allegedly also a victim as per his evidence and he says he was also looted. He has also stated that he has
recognized Quyum and Samsuddin, however, it is to be noted that he knows the appellants from before. However, even this witness was unable to say
as to who had taken the money from him and he has also said that there were 7-8 persons. However, he has only recognized Quyum and Samsuddin.
P.W. 2 is Sheikh Juman, who is allegedly also a victim, he has also said that he recognized both Quyum and Samsuddin. He has said that Quyum
came out from the Jungle and it was Quyum who had pointed pistol. This allegation in the evidence of Quyum coming out of the Jungle and Quyum
pointing out the pistol is at variance with the evidence given by the informant. P.W. 6 has mentioned that Mahboob had fired on him though Mahboob
has not at all been convicted( or even tried) in the FIR. Therefore, this variation or inconsistency being significant and substantial certainly raises much
doubt in the prosecution story and even in the evidence of P.W. 2. P.W. 3 is Sahdul Khan he is allegedly one of the victim who has been looted. He
has said that there were 7-8 miscreants, however, he has only recognized Samsuddin and he has said some money and a watch looted from him.
However, counsel for the appellant had argued that nothing in the evidence of P.W. 3 is against Samsuddin.
19. From the evidence of P.W. 1, P.W. 2 and P.W. 3 all of them are from Chachcopi and under the same jurisdiction of Bero. However, P.W. 1 and
P.W. 2 have only recognized Quyum and Samsuddin while Sahdul Khan, who is P.W. 3 only recognizes Samsuddin. It is expected that being from the
same Village and under the same Police Station and since the appellants are also from the same area, it is also expected that P.W. 3 would also
recognize Quyum but he has failed to do so. However, nevertheless, what is crucial that none of the witnesses have named Mahboob who has been
named by the informant in his FIR. More particularly the variance as to who has taken out the pistol and who had shot whom is also at variance from
the evidence in the FIR and in the evidence of P.W. 2 and thereby creating significant doubt in the prosecution story as well as evidences of P.W.1,
P.W. 2 and P.W. 3. P.W. 4 Sheikh Taibul is the son of P.W. 2, has deposed that though he is an eye witness but he had run away immediately. If his
father P.W. 2 was able to recognize Quyum and Samsuddin, there is strong possibility that he should have also been able to recognize Quyum and
Samsuddin but he has not done so therefore again raising some doubts in the prosecution story. P.W. 5 Mukhtar Khan, from his evidence it seems that
he is an injured witness but he also run away. Since no doctor has been examined, his injuries have not been proved and it is not clear how he was
injured and to what extent he was injured. However, in comparison to the prosecution story only the informant P.W. 6 is injured, so the evidence of
P.W. 5 seems to be new development. However, he has not been examined by the doctor in any way and no doctor has been put on record to be
examined during the trial.
20. What is of much relevance is that no recovery is made in this case. From the evidences also it has been indicated that it is not clear that who has
looted what and even the items such as watch was not recovered from any of these persons let alone the money that is alleged to have been looted.
What is more crucial is that if there was any injury due to firing by pistol then the bullet should at least have been recovered and the blood stained soil
should also have been seized and produced and that has not been the case. Also the pistol has not been recovered from any of the accused. Therefore
placing much doubt in the case of the prosecution.
21. The cases cited by the appellant in 1956 (SC) 441, Ram Shankar Singh and others vs. State of Utter Pradesh and AIR 1983 SC 352, Ram Lakhan
Vs. State of U.P. wherein counsel for the appellant cited that the offence under section 395 of the IPC at least 5 persons are required to be tried and
convicted wherein here 2 persons were charge sheeted and none else were recognized, apart from these two appellants is also of relevant
consideration.
22. So having gone through the facts of the case; the records; the evidence and the arguments, based on the aforesaid reasonings on which there is
much variation or inconsistencies in the prosecution story and as has been submitted in the evidence of prosecution witnesses and along with the
judgments that have been cited, this court finds it difficult to sustain the conviction against the appellants and therefore extending benefit of doubt.
Hence the judgment of conviction dated 18.02.2003 and order of sentence dated 19.02.2003 passed in S.T. No. 319 of 1993/ T.R. No. 447 of 2002 by
learned Additional Judicial Commissioner Fast Track Court, Ranchi is therefore set aside. Accordingly, both the appeals are allowed. The appellants
are on bail. They are discharged from the liabilities of their bail bonds.
23. Accordingly, both the appeals are allowed.
