Patna High Court
Ramswaroop HarijanversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The conviction under Section 395 IPC was unsustainable due to unreliable identification and the appellant is entitled to the benefit of doubt.
Summary
The appellant, Ramswaroop Harijan, was convicted by the Sessions Court for dacoity under Section 395 IPC based primarily on the identification by the informant's wife, Sakuntala Devi, while the informant himself could not be examined due to his death. The High Court examined contradictions between the wife’s testimony and the informant’s dying declaration, as well as inconsistencies in her statements and the lack of corroboration from other witnesses. The Court noted that the informant’s statement was admissible under Section 32 of the Evidence Act but highlighted serious doubts about the reliability of the sole eyewitness identification. Considering the contradictions, the appellant’s clean antecedent, and the benefit of doubt principle, the Court set aside the conviction. The appeal was allowed, and the appellant was discharged from bail liabilities.
Issues considered
- The admissibility of the informant’s dying declaration under Section 32 of the Evidence Act.
- The reliability of identification made by the informant’s wife as the sole eyewitness.
- Whether the contradictions in witness testimony create reasonable doubt warranting acquittal.
- The applicability of the benefit of doubt principle in dacoity cases.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 313
- Indian Evidence Act, 1872 — s. 32
- Indian Penal Code — s. 120B, 307, 395, 398
Subjects
- dacoity
- identification
- dying declaration
- benefit of doubt
- criminal appeal
- evidence
- Section 32 Evidence Act
- Section 395 IPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.267 of 2014
Arising Out of PS. Case No.-114 Year-2004 Thana- AMARPUR District- Banka
======================================================
Ramswaroop Harijan, Son of Mangal Harijan, Resident of Village - Masarpur
(Logain), Police Station- Amarpur, District- Banka
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Md. Najmul Hodda, Adv.
Ms. Ayushi Choudhary, Adv.
Mr. Saurabh Kumar Singh, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 11-02-2026
The instant appeal has been preferred by the
appellant against the judgment of conviction dated 15.05.2014
and the order of sentence dated 24.05.2014 passed by the Court
of the learned Additional Sessions Judge-I, Banka, in Sessions
Trial No. 1293 of 2005/166 of 2014 (arising out of Amarpur P.S.
Case No. 114 of 2004), whereby and whereunder the appellant
has been convicted for the offence punishable under Section 395
of the Indian Penal Code (in short, “IPC”). The appellant has
been sentenced to undergo rigorous imprisonment for seven
years with a fine of Rs. 5,000/- (Rupees Five Thousand) for the
offence punishable under Section 395 of the IPC. In default of
payment of fine, he has been directed to undergo rigorous
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imprisonment for six months additionally.
Prosecution Story:
2. The substance of the prosecution story, as
appearing from the FIR, is as follows:
As per the informant, on 22.09.2004, he, his wife,
and his 5-year-old grandson, namely Shubham, were asleep on a
chowki in the courtyard of his house. At about 12:45 A.M., five
miscreants entered into the courtyard flashing torches. When the
torchlight flashed upon him, he awoke and saw five miscreants
standing near his bed. One of the miscreants asked him about
the key of the almirah. He then awoke his wife and asked her to
run, saying that dacoits had come. As per the informant, when
he stated to the dacoits that he did not have the key of the
almirah, all the miscreants/dacoits entangled with him. In that
course, he caught hold of two miscreants by their necks and
identified them in the light of the lantern as Bablu Mandal and
Mithhu Mandal. He also identified the three other miscreants
standing nearby the chowki in the light of the lantern as Nawal
Mandal, Shridhar Mandal, and Ramswaroop Harijan (appellant).
2.1. As per the informant, the two miscreants who
had been caught by him tried to free themselves from his
clutches. Then one of the miscreants, namely Nawal Mandal,
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fired at him using a country-made pistol, and the shot hit his left
shoulder. Due to the firearm injury, he freed both the miscreants
who were in his grip. Thereafter, all the miscreants fled away
through the southern exit of his house and, at the time of fleeing,
again fired a shot.
2.2. As per the informant, when the miscreants
were fleeing, his wife identified some other miscreants who
were also present with the above-named miscreants as
Bineshwar Mandal, Bipin Mandal, Ajay Mandal, Prakash
Mandal, and Mannu Mandal, all residents of village Mansurpur,
falling under Amarpur Police Station, District Banka. Upon
hearing the hulla, villagers gathered, and his wife informed
them about the identity of the miscreants as well.
2.3. According to the informant, one Shosiya Devi,
wife of one Subhash Mandal, a resident of village Mansurpur,
used to visit his house. A few days before the occurrence, i.e.,
on 20.09.2004, she had come to his house and saw him keeping
rupees in the almirah. As per the informant, the miscreants used
to assemble at the house of Shosiya Devi to take meals. The
informant suspected that the said Shosiya Devi had called the
miscreants and sent them to his house to commit the alleged
occurrence.
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3. The informant recorded his fardbeyan on
22.09.2004 at 2:30 hours at Amarpur Police Station and detailed
the above-mentioned incident. Upon that basis, the formal FIR
bearing Amarpur P.S. Case No. 114 of 2004 was registered for
the offences punishable under Sections 398 and 307 of the IPC
and Section 27 of the Arms Act, which set the criminal law in
motion.
4. After completion of the investigation, two charge
sheets were submitted, and the appellant was also charge-
sheeted.
5. After cognizance of the alleged offences, the
learned Chief Judicial Magistrate committed the case of the
appellant and four other co-accused persons to the Court of
Sessions for trial. The appellant and four other co-accused
persons, namely Mannu Mandal, Shridhar Mandal, Bipin
Mandal and Baneshwar Mandal, stood charged for the offences
under Sections 307, 398, and 120B of the IPC and also under
Section 27 of the Arms Act. Later on, the charges were
amended, and they stood charged for the offences under
Sections 307 read with Section 34, 398 read with Section 34,
120B, and 395 of the IPC. The said charges were read over and
explained to the appellant by the trial court, to which he pleaded
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not guilty and claimed to be tried.
6. During the trial, the prosecution examined
altogether six witnesses who are as under :-
PW-1 Sakuntala Devi An eyewitness and wife of the
informant
PW-2 Sanjay Kumar A hearsay witness and son of the
informant
PW-3 Pappu Kunwar An independent witness and was
declared hostile
PW-4 Rasho Mandal An independent witness and was
declared hostile
PW-5 Md. Anwarul Haque The investigating officer
PW-6 Dhananjay Mandal An independent person and was
declared hostile
7. In addition to the above mentioned ocular
evidence, the prosecution proved and exhibited the following
documents in documentary evidence :-
Ext-1 Xerox copy of the informant’s fardbeyan
Ext-2 Xerox copy of the formal FIR
Ext-3 Xerox copy of the injury report of the informant (exhibited
with objection)
8. The trial court suo motu summoned one person,
namely, Shyam Dev Das, who was examined as a court witness,
to verify the handwriting of the doctor who issued the injury
report of the informant.
9. After the completion of the prosecution
evidence, the statements of the appellant and other accused
persons were recorded under Section 313 of the Code of
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Criminal Procedure (in short, ‘Cr.P.C.’) by the trial court. The
appellant denied the material circumstances appearing against
him from the prosecution evidence; however, he did not take
any specific defence while recording his statement.
10. In defence, the appellant produced and
exhibited the following documents.
Ext-A Certified copy of the judgment passed in Sessions Trial
No. 1561/2004
Ext-B Certified copy of the deposition of a prosecution witness
namely, Sakuntala Devi, pertaining to Sessions Trial No.
1561/2004
Ext-B/1 Certified copy of the deposition of a prosecution witness
namely Sanjay Kumar pertaining to Sessions Trial No.
1561/2004
11. While convicting the appellant for the offence
under Section 395 of the IPC, the learned trial court mainly
placed reliance upon the testimony of Sakuntala Devi (PW-1),
wife of the informant, and took the evidence of Sanjay Kumar
(PW-2) as supportive of the prosecution story to some extent.
Further reliance was placed upon the evidence of the
Investigating Officer (PW-5) for accepting the case of the
prosecution, particularly with regard to the alleged place of
occurrence. The doctor who examined the informant was not
produced before the trial court; however, the trial court found
sufficient reasons for his non-appearance and considered the
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injury report issued by the said doctor to be admissible evidence
in light of the provisions of Section 32 of the Evidence Act. The
trial court observed in the concluding part of the judgment that
the solitary evidence of Sakuntala Devi (PW-1) was convincing
and reliable, as she had identified the appellant in the light of a
lantern.
12. In respect of the charged offence punishable
under Section 395 of the IPC, the trial court concluded that the
prosecution failed to prove the same with respect to the other
co-accused persons, however, it was further concluded that the
prosecution was able to prove the offence under Section 395 of
the IPC against the appellant. By the same impugned judgment,
the other co-accused persons who faced trial along with this
appellant were acquitted of all the charged offences mainly on
the ground of their non-identification by PW-1 (Sakuntala
Devi), and they were given the benefit of doubt. The appellant
was also acquitted of the charged offences under Sections 398
read with section 34, 307 read with Section 34, and 120B of the
IPC though he was convicted for the offence under section 395
of IPC.
Submissions on behalf of the appellant:
13. Mr. Md. Najmul Hodda, learned counsel for the
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appellant, submits that as per the prosecution story, the most
important witness of the prosecution, who was the informant
himself, could not be examined before the trial court, and the
informant’s wife is said to be an eyewitness of the alleged
occurrence; however, there are serious contradictions between
her testimony and the facts revealed by the informant in his
fardbeyan. The appellant, who had no criminal antecedent at the
time of the commission of the alleged occurrence, had no
motive or reason to be involved with the accused persons who
actually committed the alleged occurrence of dacoity. On the
same set of evidence, the co-accused persons, namely Mannu
Mandal, Bipin Mandal, Baneshwar Mandal, and Sridhar
Mandal, were acquitted of the charged offences by the trial court
by giving them the benefit of doubt, whereas the appellant was
convicted mainly on the basis of identification as claimed by the
wife of the informant, which was not probable in light of the
circumstances in which the alleged occurrence took place. The
other material witnesses of the prosecution, except the
informant’s wife and son, turned hostile. It is lastly submitted
that two co-accused persons, namely Ajay Mandal and Mithhu
Mandal, faced trial separately, in which the informant’s wife and
son were also examined by the prosecution, resulting in the
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acquittal of the said co-accused persons. Copies of the
depositions of the informant’s wife and son pertaining to
Sessions Trial No. 1561/2004 were filed before the trial court as
defence documentary evidence, but the same were not
appreciated by the trial court.
Submissions made on behalf of the State:
14. On the other hand, Mr. Bipin Kumar, learned
Additional Public Prosecutor for the State, has argued that the
fardbeyan was recorded by the informant in an injured condition
within two hours of the commission of the alleged occurrence;
therefore, the same was completely natural and believable. The
informant and his wife had no inimical terms with the appellant;
thus, there was no reason to falsely implicate him in this case. In
the cross-examination of the informant’s wife, no any fact came
in light to suggest any reason for false implication of the
appellant by the informant and his wife. The Investigating
Officer visited the place of occurrence and found blood stains
on the chowki where the informant was sleeping with his wife
and grandson, which supports the allegation of causing firearm
injury to the informant by one of the miscreants during the
commission of the alleged dacoity. Though the informant was
not examined before the trial court, the reason for his non-
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examination was his death and he had died before he could
appear in the trial court, and in such a circumstance, his
fardbeyan (Ext.-1) is admissible in evidence under the
provisions of Section 32 of the Evidence Act and was rightly
taken into consideration by the trial court. Therefore, the
conviction of the appellant for the offence of dacoity punishable
under Section 395 of the IPC is correct, and there is no need to
interfere with the same.
Consideration and analysis:
15. I have heard both sides, perused the evidence
adduced by both sides available on the trial court’s record and
also taken into account the appellant’s statement and the
findings of the trial court mentioned in the impugned judgment.
15.1. As per the prosecution story, the informant,
his wife, and his five-year-old grandson are said to be
eyewitnesses to the commission of the alleged dacoity. The
informant’s grandson, namely Shubham, was only five years
old; therefore, for that reason, he might not have been examined
by the Investigating Officer and was not made a prosecution
witness on account of he being an incompetent witness. Thus,
the most important witnesses of the prosecution on whom the
prosecution story is based are the informant and his wife.
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15.2. Though the informant could not be produced
before the trial court by the prosecution on account of his death,
his fardbeyan was taken into consideration by the trial court
under the provisions of Section 32 of the Evidence Act. From a
perusal of the informant’s fardbeyan, it appears that the
informant alleged that five accused persons, including the
appellant, first came inside the courtyard (baramda) of his house
where he was sleeping and stood near his bed, surrounding him.
When one of the accused flashed a torchlight, he awoke.
Thereafter, one of the accused persons asked him to hand over
the key of the almirah, and when he expressed his inability to
give the key, the accused/miscreants scuffled with him. During
that course, he caught hold of two co-accused persons by their
necks, whom he identified as Bablu Mandal and Mithhu
Mandal.
15.3. The informant further alleged that he
identified this appellant and two more co-accused persons and
stated that they also stood near his chowki. He further stated in
his fardbeyan that when the accused persons were fleeing, they
were identified by his wife, and according to her, five more
accused persons, namely Bineshwar Mandal, Bipin Mandal,
Ajay Mandal, Prakash Mandal, and Mannu Mandal, were also
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present there. Thus, according to the informant, altogether ten
accused persons, including the appellant, participated in the
commission of the alleged dacoity.
15.4. The informant did not mention the name of
Shosiya Devi as being present with the accused persons at the
time of the commission of the dacoity, though he suspected her
role as a conspirator; however, regarding her presence at the
time of the commission of the occurrence, he did not say
anything.
15.5. In light of the aforesaid facts stated by the
informant, I have perused the evidence of PW-1 (Sakuntala
Devi), who is the most important witness of the prosecution, as
she is stated to be an eyewitness to the occurrence as per the
prosecution story, and on account of the non-examination of the
informant as a prosecution witness before the trial court, her
evidence is most crucial. PW-1 (Sakuntala Devi) deposed in her
examination-in-chief that the first gunshot fired by the accused
Nawal Mandal hit the left side of the chest of her husband
(informant), whereas, as per the informant’s statement made in
the fardbeyan, the gunshot hit his left shoulder. PW-1 further
deposed in her examination-in-chief that when firing was being
done by Nawal Mandal, she identified the appellant and Shosiya
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Devi as being present with co-accused Nawal Mandal. If this
statement is believed, then Shosiya Devi was also present at the
alleged place of occurrence, but the informant said nothing
about her presence. PW-1 further stated in her examination-in-
chief that she identified only this appellant and Nawal Mandal
and could not identify the other co-accused persons. Thus, as
per this witness, she was able to identify only two accused
persons, and she said nothing about identifying the other
accused persons, whereas the informant stated in his fardbeyan
that when the accused persons were fleeing, they were identified
by his wife (PW-1) as Bineshwar Mandal, Bipin Mandal, Ajay
Mandal, Prakash Mandal and Mannu Mandal, in addition to
other co-accused persons. This statement is completely
contradictory to the statement made by PW-1 in her
examination-in-chief. As such, serious contradictions appear
between the testimony of PW-1 (Sakuntala Devi) and the
statement made by the informant in his fardbeyan with regard to
the identification of the accused persons, which creates serious
doubt regarding the claim of PW-1 as an eyewitness to the
alleged occurrence. In this regard, I would also like to refer to
the deposition of the informant’s son, namely Sanjay Kumar
(PW-2), recorded in Sessions Trial No. 1561/2004, in which two
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co-accused persons, namely Ajay Mandal and Mithhu Mandal,
faced trial.
15.6. The informant’s son, Sanjay Kumar, deposed
in the said trial that he was not present at the time of firing, and
his mother was also not present. A copy of his deposition was
filed by the defence (appellant) as documentary evidence and
was exhibited as Ext.-B/1. As per the prosecution, the
informant’s son arrived at the place of occurrence just after the
firing. This defence evidence was not properly appreciated by
the trial court.
15.7. Though, in view of the medical evidence
showing firearm injury to the informant, the commission of an
offence against the informant cannot be ruled out but the role of
this appellant in that occurrence, in view of the contradictions
appearing between the statements made by the informant in his
fardbeyan and the testimony of the informant’s wife, who
claimed herself to be an eyewitness, appears to be doubtful.
Further, as per the evidence of the Investigating Officer, the
appellant had worked as a labourer in the informant’s field. At
this juncture, I would like to mention one more contradiction
appearing from the testimony of PW-1 (Sakuntala Devi). She
stated in paragraph 4 of her cross-examination that three
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accused persons were identified by her, who were residents of
her village, and that the house of the appellant was also situated
in her village. However, in the same paragraph, she changed her
version regarding the location of the appellant’s residence,
stating that his house was situated in Mansurpur village. Thus,
PW-1 did not remain consistent in her stand. In offences of loot
and dacoity, past conduct is somewhat relevant. It came in the
evidence of the Investigating Officer that the appellant had no
criminal antecedent when the alleged occurrence took place;
thus, the past history of the appellant goes in his favour and
makes his role in the commission of the alleged dacoity less
probable.
Conclusion:
16. Accordingly, I am of the considered opinion
that the evidence of PW-1 (Sakuntala Devi), who is said to be
the most important witness of the prosecution, was not properly
appreciated by the trial court, and in view of the contradictions
appearing between her testimony and the statements of the
informant as discussed above, the appellant’s role in the
commission of the alleged dacoity appears to be suspicious, and
he is entitled to the benefit of doubt. As such, the impugned
judgment convicting the appellant, Ramswaroop Harijan, for the
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offence under Section 395 of the IPC and the impugned order
sentencing him for the said offence are hereby set aside, and the
instant appeal stands allowed.
17. The appellant is on bail; accordingly, he and his
sureties are discharged from the liabilities of their bail bonds.
18. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for necessary compliance.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 16.02.2026
Transmission Date 16.02.2026
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