IMPORTANT POINT
Conviction is not safe when evidence is replete with discrepancies and improbable persons are made accused.

Judgment :

Dr. Arijit Pasayat, J.

1. Challenge in these appeals is to the judgment of a Division Bench of the Patna High Court directing acquittal of the respondents 1 to 9 who faced trial for alleged commission of offences punishable under Section 396 of the Indian Penal Code, 1860 (in short the `IPC). Questioning their acquittal the complainant has filed the appeal.

2. Learned II Additional Sessions Judge, Muzaffarpur, had directed conviction of the respondents 1 to 9 and sentenced each to undergo imprisonment for life. On appeal High Court directed acquittal.

3. Background facts in a nutshell as project by the prosecution are as follows:

The case of the prosecution, as disclosed in the Fardbayan (Exhibit-6) of informant Shrishti Narain Jha (PW.7), in short, is that on night between 5.7.1981 and 6.7.1981, informant was sleeping along with his two brothers in the Baithka of his house. On one bed, he was sleeping alone and on the other bed near his bed, his younger brothers Gopal Narain Jha (PW.4) and Naresh Narain Jha (PW.6) were sleeping. At 12 Oclock about fourteen to fifteen dacoits, came to the house of informant, entered the Baithka and started hurling lathis and when their lathis struck against Tatti of Baithka, the informant woke up on hearing the strikings and he stood on his bed. One of the dacoits ordered him to remain standing otherwise he would be shot dead. Informant, among the dacoits, identified all the appellants and Dahaur Jha (since dead). Accused Navo Nath Mishra was carrying a country made pistol, Bindeshwar Jha was armed with Tengari (axe) and Jeev Nath Mishra was armed with a Garassa. Rest of the accused persons were carrying lathis, ropes and torches. Accused Navo Nath Mishra fired two shot from his country made pistol causing injuries on the thigh and body of Naresh Narain Jha (PW. 6) and when Gopal Narain Jha (PW.4) went running out of the Baithka, dacoits, after surrounding him, assaulted him with lathis. Informant also ran out of the house and went to the Darwaza of one Krishna Kant Jha (not examined) and raised hulla. While leaving Baithka, he had heard the dacoits saying that "Sala ghar mein hoga" and some dacoits entered the house and when on hearing cry of help of informant, nobody from his locality came, he again returned to his house and found that dacoits were running away through the backdoor of his house towards south. Mother of the informant raised hulla from the house that dacoits had killed father of informant and when informant went inside his house, he found his father lying dead beneath a Chowki with injuries on his neck caused by sharp edged weapons. From his mother, the informant came to know that accused Bindeshwar Jha with Tengari and Jeev Nath Mishra with Garasa had inflicted injuries on the neck and body of father of informant when he had tried to hide beneath his Chouki and at that time accused Daya Nath Mishra, Bhai Lal Jhan, Navo Nath Mishra and three to four others had surrounded his mother and had demanded keys from to prevent the dacoits from assaulting her husband, she was also assaulted with lathis by dacoits. The dacoits took away steel boxes carrying clothes, ornaments of silver and gold and a cash amount of rupees seven thousand. The dacoits also snatched an earring and a necklace from the body of mother of informant. About his wife, informant stated that she was also assaulted by dacoits with lathis. The amount of articles, taken away in dacoity, was about rupees forty thousand. The Fardbayan (Exhibit-6) of informant was recorded at his house on 6.7.1981at about 6.30 a.m. by Sub Inspector Radhika Raman Singh (PW.12).

On the basis of Fardbayan (Exhibit-6) of informant, formal first information report (Exhibit-4) was drawn against all the appellants and co-accused Dahaur Jha under Section 396, IPC. After investigation, police submitted chargesheet under Sections 147, 148, 149, 302, 323, 324, 380, 452 and 307 IPC against all the accused persons. Taking cognizance, the ca