Cr.A(SJ)/1402/2006 of ISHRAIL MIAN Ž MD.ISHRAIL MIAN Vs STATE OF JHARKHAND on 31 August 2026

JUDGMENT

----------- CAV On: 25th August, 2026

Pronounced On: 31/08/2026

1. Heard learned counsel for the appellant as well as learned A.P.P.

2. Instant criminal appeal is directed against the judgment of conviction and sentence dated 21.09.2006 passed by the learned 3rd Additional District & Sessions Judge, Dumka (F.T.C) in Sessions Case No. 46 of 2002 arising out of Saraiyahat P.S. Case No. 52 of 1995 corresponding to G.R. No. 368 of 1995, whereby and whereunder, the appellant has been convicted for the offence under Section 395 of the I.P.C. and sentenced to undergo R.I. for 7 years alongwith the fine of Rs. 3,000/-with default stipulation. Factual Matrix:-

3. Factual matrix giving rise to this appeal is that in the night of 20/21.05.1995 at about 12:30 A.M., the informant alongwith his associates were sleeping outside the labour quarter near Jiyajore

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Mission. On hearing sound of some persons, he woke up and saw that one dacoit has put pistol on him and threatened to kill. Another dacoit was standing beside him with farsa in hand and third dacoit was standing near him. Two dacoits have taken Hopna Murmu in their custody on the point of country made pistol. Two dacoits have taken Batan Hembrom in their custody and one dacoit has taken Rajeshwar Hembrom in custody and three dacoits were standing near labour quarter and 2-3 dacoits were standing beside the house. The dacoits having pistol commanded the informant to give keys otherwise he will be shot dead. Informant told that the key is with Hopna, then dacoit ran to Hopna and demanded keys under threatening to kill and the key was handed over to dacoits. The dacoit entered into the house by opening the door and started searching and asked the informant about Rs. 10,000. The informant group told that money is kept with sister. In the meantime, dacoits succeeded in searching the money and took it. They also snatched HMT watch form the informant and his associates. They were brought in a room by the dacoits and when one of the dacoits told to shoot them all as they have expelled them from work. The informant identified the sound and it was sound of the present accused Ishrail Mian, who had worked in the mission about 4-5 months ago. Then, he turned towards him and identified him. When the dacoits fled away, the informant went to the sister of Mission and narrated the incident. Next morning, they went to Dudhani and told everything to father of the Mission. The informant alleges that the dacoits took away Rs. 9,100/- in cash, three HMT watch.

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4. On the basis of above information, F.I.R. was registered being Saraiyahat (Hansdiha) P.S. Case No. 52 of 1995 for the offence under Section 395 I.P.C. against the present appellant.

5. After completion of investigation, charge-sheet was submitted against the accused and after taking cognizance, the case was committed to the court of sessions, where Sessions Case No. 46 of 2002 was registered.

6. The appellant denied the charge levelled against him and claimed to be tried.

7. In the course of trial, altogether 8 witnesses have been examined by the prosecution apart from following documentary evidence:- I. Ext.-1: Signature of PW-1 & PW-3 on the fardbeyan.

II. Ext. -1/1: Signature of informant on the fardbeyan.

III. Ext.-1/2: Signature of PW-5 on the fardbeyan.

IV. Ext-1/3: Signature of PW-6 on the fardbeyan. V. Ext.-2: fardbeyan

VI. Ext.-3: formal F.I.R.

VII. Ext.-4: case diary from para-1 to 210.

8. On the other hand, defence has not examined any oral or documentary evidence.

9. The learned Trial Court after scrutinizing the evidence oral as well as documentary led by the respective parties, arrived at definite conclusion about the guilt of the appellant for the offence under Section 395 of the I.P.C. Accordingly, the learned Trial Court convicted and sentenced the appellant as stated above, which has been assailed in this appeal.

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Submission on behalf of appellant:-

10. Assailing the impugned judgment, the learned counsel for the appellant has submitted that the learned Trial Court has not appreciated properly the F.I.R. as well as the statement of the witnesses examined during trial. It is further submitted that the informant has named the accused in the F.I.R. only on the basis of identity of his sound. The informant has alleged that when the dacoits looted Rs. 10,000/- and watches of his associates, and thereafter, he heard the sound of the accused and identified him. There is possibility of false implication because it is here apparent that the accused was also working with the informant and his associates and it has also come during the evidence of witnesses that there was dispute with regard to wages between the appellant and the informant. It is further submitted that the informant has lodged the case against this appellant only but when the dacoity took place, the informant has himself stated that they were more than 10 persons and the informant with the view to take vengeance, implicated this appellant only. There is no recovery of any amount and watches with respect to dacoity of the said occurrence. It is further submitted that most of the witnesses have also been declared hostile. Therefore, conviction and sentence of the appellant is liable to be set aside and this appeal may be allowed. Submission on behalf of State:-

11. Learned A.P.P. has opposed the aforesaid contentions raised by learned counsel for the appellant and defending the impugned judgment has submitted that the learned Trial Court has very wisely and aptly scrutinized the evidence adduced by the prosecution. It is further

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submitted that the appellant has been identified by the informant and his identification has also been corroborated by the eye witness of this case. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant calling for any interference in this appeal, which is devoid of merits and fit to be dismissed. Analysis, Reasons and Decision:-

12. I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

13. The only point for consideration of this appeal is, as to whether the impugned judgment of conviction and sentence suffers from any serious error or law calling for any interference or not?

14. Before adjudicating the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

15. It appears that prosecution has examined altogether eight witnesses during trial, however, PW-1 Hopna Murmu has been examined twice as PW-1 & PW-3. According to the evidence of Hopna Murmu (PW-1 & PW-3), while he was sleeping in Jiyajore Mission alongwith informant Raja Soren, Batan Hembrom and Rajeshwar Hembrom after having their dinner, the dacoits entered and point out gun. The dacoits asked key from Raja but Raja told them that key is with me. They took the key and opened the quarter. Three dacoits entered in the quarter and searched money. Dacoits against asked from Raja about Rs. 10,000/- then Raja replied that money is kept with sister. In the meantime, one dacoit searched out the money. The dacoits snatched the watch of Raja,

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Rajeswar and Batan. He further states that he identified only the accused Ishrail. They tied him in the room and threatened not to raise alarm.

In his cross-examination, he admits that the accused was also working there as mistri. He also admits that he did not raise alarm. He further states in his cross-examination as PW-3 that on the date of occurrence, contractor had come to give them wages. The accused Ishrail was given Rs. 200/-. Till 6:00 P.M., the accused was also present there. PW- 2 Batan Hembrom has supported the factum of dacoity. He has stated that he was sleeping with Raja Soren, Rajeshwar Hembrom and Hopna Murmu and then dacoits came and looted the money. He also identified the accused as one of the daocits and said that he was masson and was working with them but he was expelled from the work. PW-4 Rajeshwar Hembrom- This witness has been declared hostile but he has supported the factum of dacoity. He further states that he did not identify any of the dacoits. PW-5 Father Ambroj is the father of Shivpahar Mission. He states that he wsa at Bishop house of Dudhani in the night of occurrence. Munshi Raja Soren and some persons came to him in the morning on 21.05.1995 and told that in the last night 12-14 persons armed with pistol, lathi, knife etc. came and took away money kept with informant Raja Soren for labour payment and snatched watches and fled away after closing them in the room. They also told him that they have identified one person among the dacoits but he is not remembering the name of that man. He informed the contractor and they went to Jiyajor

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Mission and saw things there and thereafter went to police station and police case was instituted on the fardbeyan of Raja Soren. PW-6 Gautam Sinha is the contractor of Jiyajore Mission. He states that dacoity took place in the night of 20/21.05.1995. He had given Rs. 10,000/- to Raja Soren for labour payment out of which Rs. 900/- was paid to the labourers and remaining money was with him, which was looted in dacoity and dacoits also looted their watches. Raja Soren had indentified one of the dacoits. He was the accused Israil Mian. PW-7 Abdhesh Thakur is the police officer, who has arrested the accused and submitted charge-sheet against him. He has identified the writing of fardbeyan and case diary, marked ext- 2, 3 & 4.

In his cross-examination, he admits that he has not investigated the case and hence, he has no personal knowledge of this case. PW-8 Kamal Chandra Kumar has deposed on behalf of the investigating officer. This witness has stated that Rajeshwar Hembrom (PW-4) had stated before the police that dacoits had closed them in a room and they fled away. He identified the accused.

16. On the other hand, no oral or documentary evidence has been adduced by defence. The case of the defence is denial from the occurrence and false implication from occurrence and false implication due to dispute of wages.

17. I have given anxious consideration to the overall aspects of the case and the documentary evidence available on record.

18. From the oral testimony of witnesses as discussed above, it is quite obvious that none of the witnesses have been able to identify the appellant as perpetrates in the alleged occurrence of dacoity rather they

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were acquainted with the appellant because he was also working with them as mason. The witnesses have also admitted the dispute about wages raised by appellant to the informant of this case. It also transpires that the witnesses have heard from informant about involvement in this occurrence, as he was identified by his voice. The informant has not been examined in this case. It further appears that only on the basis of voice identification of appellant by the informant as disclosed to other witnesses examined in this case, the learned Trial Court has held the appellant guilty for the offence under Section 395 of the I.P.C. Admittedly, no robbed money or watches have been recovered from possession of the appellant.

19. The cumulative effect of evidence brought on record as to identity of appellant as perpetrator in crime is based on voice identification by informant, who himself was not examined, such type of evidence is of very weak nature and can't be made basis of conviction for such a serious offence.

20. In view of above discussion and reasons, the conviction of the appellant for the offence under Section 395 of the I.P.C. cannot be maintained. Hence, extending the benefit of reasonable doubt, the appellant is acquitted from charge under Section 395 of the I.P.C. The impugned judgment is hereby set aside.

21. This appeal is, accordingly, allowed.

22. Pending I.A.(s), if any, stands disposed of.

23. The appellant is on bail. He is discharged from the liability of bail bond and sureties are also discharged.

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24. Let a copy of this judgment alongwith the trial Court records be sent back immediately to the concerned Trial Court for information and needful.

(Pradeep Kumar Srivastava, J.) High Court of Jharkhand at Ranchi Dated: 31/08/2026 Rahul- NAFR Uploaded On: 04/09/2026