- (1.) BOTH the appeals are taken together arising out of common judgment of conviction recorded by the Additional Sessions Judge, F.T.C. -III, Hazaribagh in S.T. No. 275/88, arising out of Berhi P.S. Case No. 23/86, corresponding to G.R. No. 292/ 86 by which all the appellants of the appeals were convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years each. .
(2.) PROSECUTION story in short was that the informant P.W. 3 Bijli Devi delivered her statement before the Berhi Police on 10.2.1986 that in the previous night intervening 9/10.2.1986 while her husband was away in the brick -kiln and she was sleeping in her house, she woke up at about 3 O'clock to answer the call of nature and in this connection, when she opened the door, she spotted a culprit standing by the side of the wall of her house and in the meantime, the said culprit dealt blow with the stick on the leg of the informant as a result of which she immediately entered into the house and attempted to close the door by raising alarm. The culprits standing at her door commanded to open the door as they had come to search the liquor, but in spite of all resistance made by the informant, the culprits succeeded in opening the door. . She spotted all the five culprits entering into her house armed with stick, knife and iron khanti. One of the culprits pointed knife on her chest and demanded valuables, whereas others were involved in searching the valuable articles from the rooms. She explained that three culprits had covered their faces with clothes and maintained some distance from her and one of the dacoits standing on her behind snatched silver chain from her neck containing nine silver coins and that she was assaulted by them by putting pressure to disclose the valuables. Informant narrated that the dacoits took away utensils of brass and bronze and toe rings. Informant claimed to identify three culprits as she had occasion to see their faces. They were speaking local language. She further narrated that the dacoits tried to get the door of P.W. 2 Mohan Prasad Mahato opened for commission of dacoity in his house, but they could not succeed as the villagers assembled on her alarm and the dacoits decamped with booty. She further narrated that after retreating of the dacoits, P.W. 2 Mohan Prasad Mahato immediately came to her and he claimed to identify the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice, who had come to commit dacoity. She also narrated that appellants Dhaman Mahto and Dihal Mahto had abducted her niece Geeta Kumari only a few days ago with the intention to marry her, which was opposed by the informant and other members of the family, to which the witnesses were threatened. Lastly, the informant suspected the complicity of the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato in the alleged dacoity, which was committed in her house. The F.I.R. was instituted against unknown six dacoits in spite of the fact that the informant had suspected complicity of these three appellants referred to hereinbefore, however, the Investigating Officer after investigation submitted charge -sheet against Dhaman Mahto, Dihal Mahto, Rameshear Mahato, Sewa Mahto by showing the other two Ratan Ram and Jai Prakash Mahto (absconder). It would not be out of place to mention that certain articles, alleged to be the subject matter of dacoity, were recovered from the possession of Sew a Mahto and consequently, charge -sheet was submitted against all the four accused for the alleged offence under Sections 395/ 412 of the Indian Penal Code. All the appellants herein were put on trial after framing of charge under Section 395 and separate charge under Section 412 of the Indian Penal Code against the appellant Sewa Mahto. After trial all the appellants were convicted under Section 395 of the Indian Penal Code and accordingly, sentenced to undergo rigorous imprisonment for seven years each. It would be relevant to mention that charge under Section 412 was proved against the appellant Sewa Mahto but no separate sentence was awarded for the said offence. Learned counsels appearing on behalf of the appellants consistently submitted that the conviction of the appellants herein was based simply upon identification by their voice. The informant P.W. 3 Bijli Devi was consistent that she claimed to identify two accused by their faces as had not covered their faces and one of them had pointed a knife on her chest, whereas the other three culprits, who had masked their faces with clothes, had been maintaining some distance from her. In course of investigation, the appellant Sewa Mahto was arrested and he was put on Test Identification Parade at the Central Jail, Hazaribagh by observing the formalities and the informant Bijli Devi claimed to identify him by describing that at the relevant time of dacoity, he (Sewa Mahto) was holding a khanti and a torch in his hand and he escaped with an axe, which belonged to her. Learned counsel pointed out that in her substantive evidence before the Trial Court the informant P.W. 3 Bijli Devi testified that she had identified the appellant Sewa Mahto in his Test Identification Parade by describing that at the relevant time he was holding a khanti and a torch in his hand. She made development in her substantive evidence by claiming to identify the appellant Sewa Mahto in the light of torch as also in the light of earthen lamp and that he had also assaulted her but such statement was never made before the police at any time during investigation. As regards the identification of other three appellants viz. Dhaman Mahto, Dihal Mahto and Rameshear Mahato was concerned, the learned counsel submitted that informant Bijli Devi was consistent in her statement before the Trial Court that three accused' had masked their faces, whereas other three had left their faces open, but she neither claimed to identify any of them either by voice or by face, though in her statement recorded at the police station, she claimed to identify those three culprits, who had not covered their faces. The learned counsel assailed the judgment impugned by submitting that the learned Trial Judge convicted the appellants only on the uncorroborated evidence of P.W. 2 Mohan Prasad Mahato, who had neither occasion to come across the dacoits at any point of time nor any dacoity was committed in his house, but he claimed to identify three appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice and the identification of the culprits by their voice is very weak piece of evidence.
(3.) IT would be relevant to mention that statement of P.W. 2 Mohan Prasad Mahato at the first point in time was. recorded under Section 164 of the Code of Criminal Procedure (Ext. -1) wherein he had stated that he had identified Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice. who were standing near his doors commanding him to open the door of the house and in this connection, they had been extending threat and thereafter they went away.;