A conviction under Section 394 IPC requires evidence of guilt beyond reasonable doubt, which is compromised by significant procedural lapses and inconsistencies in witness statements.

CAV JUDGMENT

Date: 07-02-2018

Heard Mr. Suraj Deo Singh, learned Advocate, who has argued this matter as Amicus Curiae at length and also heard Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.

2. The present appeal has arisen out of a judgment dated 7^th October, 2002 passed by learned Presiding Officer Additional Sessions Court No.I (Fast Track Court), Muzaffarpur in Session Trial No.249 of 1989/241 of 2001 ( State Vs. Sanjay Kumar Shahi ). The trial court has convicted the appellant under Section 394 IPC and awarded a sentence to undergo rigorous imprisonment for five years.

3. The facts as revealed from the judgment under appeal are as under:-

A first information report giving rise to Minapur P.S. Case No.159 of 1988 was registered on 19.10.1988 in respect of an offence alleged to have taken place on 18.10.1988 at 23.45 hours (11.45 PM). The first information report was received in the court of learned Chief Judicial Magistrate on 27.10.1988 (eight days after registration). The FIR was lodged initially under Sections 452 and 380 IPC , but on the request of the officer in-charge of the Police Station, Minapur vide his application dated 27.10.1988 the FIR was converted under Section 394 .

A perusal of the FIR (Ext.-3) shows that one Malti Devi, wife of Ramdeo Sah, who is a co-villager of the accused (appellant), made a statement in presence of the officer in-charge that in the last night while she was sleeping in her house which had no door and the house was also in dilapidated condition, while her husband had gone to visit Dasahara fair, two accused persons entered into her house at about 11.45 PM in the night, one of them accused no.1 Chitranjan Shahi @ Tuntun Shahi aged about 25 years and Sanjay Kumar Shahi aged about 22 years caught hold of her hand and Sanjay Shahi (appellant) started assaulting her on her left hand. Chitranjan Shahi @ Tuntun Shahi assaulted her on her head by something causing bleeding from her head. It is alleged in the fardbeyan that one more person was there with them, Sanjay Shahi (appellant) had caught hold of her left hand and accused Chitranjan Shahi @ Tuntun Shahi took out Rs.4400/- in cash, one pair of silver ornament weighing about eight bhar, one gold nose pin and gold earring, two bali weighing six Ana from her box and left the house. She further alleged that when she raised hulla, her mother-in-law also started raising hulla, later on they came to know that co-villager Baidyanath Shahi and Ram Ganesh Shahi had also seen the accused persons fleeing away. It is alleged that the accused persons are co- villagers and the people in the village are afraid of them. It is alleged that she had been taken to hospital for treatment where she was treated. The informant put her thumb impression (LTI) and Ramdeo Sah (her husband) and Harivansh Shahi put their signature on the fardbeyan. The signature of the witness Ramdeo Sah has been marked as Ext.3.

4. It appears that after investigation police submitted a charge-sheet vide charge-sheet no.6/89 dated 27.01.1989 under Sections 394 /397 and 398 IPC against Chitranjan Shahi @ Tuntun Shahi and Sanjay Shahi ( appellant). After taking cognizance the case was committed to the court of Session. It appears that in course of trial, accused Chitranjan Sahi was declared absconder, his bail bond was cancelled and the trial was separated vide order dated 03.12.2001.

5. In course of trial, prosecution examined 7 witnesses. Ram Narayan Prasad (PW-7) is a formal witness who proved the FIR and fardbeyan which was marked as Ext.-2 and signature of Ramdeo Sah on fardbeyan is Ext.-3. PW-1 Ram Janam Shahi and PW-6 Ragho Shahi were declared hos