The conviction under IPC Sections 395 and 397 was overturned due to insufficient evidence for identification and inconsistencies in witness testimonies.

JUDGMENT :

Rongon Mukhopadhyay, J.

1. Heard Mrs. Snehlika Bhagat, learned Amicus Curiae for the appellants and Mr. Pankaj Kumar, learned P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 31.01.2003 passed by Sri Ram Babu Gupta, learned Additional Sessions Judge, Fast Track Court No. 2, Deoghar in Sessions Case No. 57/1999 whereby and whereunder, the appellants have been convicted for the offences under Sections 395 and 397 IPC and have been sentenced to undergo rigorous imprisonment for 10 years along with the fine of Rs. 5,000/- and in default in payment of fine,to undergo simple imprisonment for six months. The appellants have further been sentenced to undergo rigorous imprisonment for 10 years along with a fine of Rs. 10,000/- for the offence under Section 397 IPC and in default in payment of fine to undergo simple imprisonment for six months. Both the sentences were directed to run concurrently.

3. The prosecution case arises out of the fardbeyan of Kanti Devi recorded on 17.08.1998 at Sadar Hospital, Deoghar in which it has been stated that at 2:00A.M. in the night of 16/17- 08-1998, she was sleeping with her 12 year old daughter Roma Kumari while in the outer room her husband Bhushan Pathak was sleeping and all of a sudden, she heard a sound of firing. It has been alleged that the informant came out of her room where she found her husband shouting in his bed inside the mosquito net that someone has shot at him. In the meantime, two miscreants entered inside the room and one of them gave a blow with a stone on the head of the informant and blood started oozing out. The informant had taken her husband to the inside room by which time, 5-6 miscreants had entered and started breaking the door and this prompted the informant to somehow take her husband to the puja room. The informant has further alleged that from the puja room she could see the miscreants opening the almirah and taking out various articles. After 15-20 minutes when all the miscreants had fled away, the informant tried to come out of the room but since it was locked from outside, she called out to her daughter who informed her neighbours who came and opened the door. On coming out, the informant could gather that the miscreants had taken away several articles with them and the total value would be around Rs. 15,000/-.

Based on the aforesaid allegations, Jasidih P.S. Case No. 150/1998 was instituted under Section 395 IPC against 10 unknown persons. On conclusion of investigation, chargesheet was submitted under Sections 395 and 397 IPC and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Case No. 57/1999. Charge was framed under Sections 395 and 397 IPC which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eight witnesses in support of its case:

P.W.1 Bhushan Kumar Pathak has stated that on 16.08.1998 at 2:00A.M., he was sleeping in the outer room of his house when 8-10 dacoits entered inside the room after breaking open the main door of his house. He had a scuffle with the dacoits in course of which the clothes covering the face of 4-5 dacoits were snatched by him and he had identified Bhutka Mian, Firoj Mian and Israel Mian. Bhutka Mian had fired at him and the bullet struck his right cheek. When on hearing the commotion his wife arrived, she was struck on her head with a stone by the dacoits which injured her. His wife had dragged him towards the bedroom and closed the door from inside but when the dacoits broke open the door of the bedroom, his wife had taken him to the pooja room. The dac