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Patna High Court

Ramswaroop HarijanversusThe State Of Bihar

Decided
Disposal
ALLOWED

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

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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