Allowed

Manoj Kumar Mahto @ Manoj Mahto v. The State Of Bihar

Patna HC10 Jan 2014CR. APP (SJ)/728/2013

Case brief

AI extract

What is this about?

This appeal challenged a conviction for dacoity under Section 395 IPC. The Patna High Court set aside the conviction, noting that witnesses declined to identify the accused in the dock and the single identification during the track investigation parade was insufficient for corroboration.

What did the court decide?

Conviction and sentence set aside; appellant directed to be released forthwith from custody.

Manoj Kumar Mahto @ Manoj Mahto Vs The State Of Bihar — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.728 of 2013

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====================================================== 1. Manoj Kumar Mahto @ Manoj Mahto S/O Sri Kameshwar Mahto @ Binda Mahto Resident Of Mohalla- Bhauwara (Kotwali Chowk), P.S.Madhubani Town, District- Madhubani. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ajay Kumar Thakur, Adv Mr. Ravi Ranjan, Adv. For the Respondent/s : Mr. S.A. Ahmad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 10-01-2014 The sole appellant, Manoj Kumar Mahto @ Manoj Mahto has challenged his conviction under Section 395 IPC as well as sentence directing him to undergo RI for 10 years as well as fine of Rs. 5000/- and in default thereof to undergo RI for one year additionally by the 1^st Additional Sessions Judge, Darbhanga in Sessions Trial No. 316 of 1998 vide judgment dated 25.10.2013 and order dated 28.10.2013

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2. PW-7, Pawan Kumar Bhagariya had given his Farde-beyan on 12.08.1990 at about 9.30 p.m. with regard to commission of dacoity in his house by the unknown dacoits whereupon Town P.S. Case No. 137 of 1990 was registered under Section 395 IPC against unknown and investigation commenced thereupon. During course of investigation, it is apparent that apart

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Patna High Court CR. APP (SJ) No.728 of 2013 (3) dt.10-01-2014

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from appellant Manoj Kumar Mahto @ Manoj Mahto, one Manoj Kumar Singh was also apprehended who were put on TIP and were identified by the witnesses including Pahlad Rai Bhagariya (since deceased) father of the informant PW-7. It is also evident that from the possession of appellant Manoj Kumar Mahto @ Manoj Mahto certain items were also recovered. After completing investigation charge-sheet was submitted and on account thereof, both the accused faced trial whereunder by the judgment impugned the appellant has been convicted for an offence punishable under Section 395 only while having acquittal under Section 412 of the IPC. Co-accused, Manoj Kumar Singh was acquitted from all charges by the learned lower court.

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3. During course of trial altogether 9 PWs have been examined out of whom PW-8, Ravindra Kumar Thakur and PW-9, Sunil Kumar Sinha Mukund are Judicial Magistrates under whose guidance the TIP was conducted. PW-1 to PW-7 are the material witnesses. The I.O. has not been examined in this case. The prosecution also exhibited series of documents as Ext-1, signature of informant over Fard-e-beyan, Ext-1 to 1/8 are signatures of Dinesh Ram and Ram Sewak Singh over T.I chart, Ext-2 is the list of looted articles, Ext-3, 4 are T.I. chart, Ext-5 is the formal FIR, Ext-6 is charge-sheet and Ext-7 and 7/1 are seizure list.

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Patna High Court CR. APP (SJ) No.728 of 2013 (3) dt.10-01-2014

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4. From the evidence available on the record, it is evident that PW-8 and PW-9, the Magistrates have had stated with regard to conduction of T.I. Parade in accordance with rule and during course thereof, the witnesses have had identified the culprit/suspect.

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5. Now coming to the material witnesses, it is apparent that though the witnesses have supported the factum of dacoity, participation during conduction of TIP but they declined to identify the accused in dock. The evidence before the court happens to be the substantial one and on account thereof, non identification of the accused by the witnesses in dock by deposing is a material circumstance which cannot be overlooked. It appears, the learned lower court had also taken the similar view.

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6. Acceptance of evidence by the learned lower court against appellant is found incorporated under para-22 of the judgment. The learned lower court had noted down the fact that Pahlad Rai Bhagariya, on account of his death, has not been examined during course of trial, therefore, his evidence with regard to identification during course of TIP is not at all admissible but had taken it as corroborative evidence to support the evidence of PW-4. Firstly, the learned lower court wrongly held the event that even on non examination of the witness, the

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Patna High Court CR. APP (SJ) No.728 of 2013 (3) dt.10-01-2014

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factum of identification during course of investigation by the said witness in TIP will be taken into account for the purpose of corroboration. The second aspect is evident contrary to the finding recorded by the learned lower court from para-2 of PW-4 itself, wherein he though, claimed that during conduction of TIP, he had identified the miscreants but now he is unable to identify and on account thereof, he had not identified any of the culprit in the dock. When there was no substantive evidence as is evident from the aforesaid para-2 of PW-4, therefore, appreciating the aforesaid theme in wrong direction and further holding that conviction can be recorded on the basis of single identification is not at all found legally sustainable.

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7. On account thereof, the conviction and sentence so recorded by the learned lower court against the appellant happens to be non sustainable. Accordingly, the same is set aside. The appeal is allowed.

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8. Since appellant is under custody, he is directed to be released forthwith, if not wanted in any other case.

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(Aditya Kumar Trivedi, J)

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perwez

Manoj Kumar Mahto @ Manoj Mahto v. The State Of Bihar

Case brief

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Manoj Kumar Mahto @ Manoj Mahto v. The State Of Bihar

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