Patna High Court
Singhasan Sahni @ Sahdeo Sahni vs The State Of Bihar on 9 January, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.200 of 2013
Arising Out of PS. Case No.-117 Year-2010 Thana- SANDESH District- Bhojpur
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Singhasan Sahni @ Sahdeo Sahni S/O Ram Chander Sahni, Resident Of
Village- Badarpur Milki, P.S.- Mahuwa, District- Vaishali
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Priya, Amicus Curiae
For the Respondent/s : Mr. M. Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 09-01-2025
Today, on repeated calls, no one appears on
behalf of the appellant, as the case is of the year 2010 (15 years
old) and no one is present on behalf of the appellant. Hence, let
an Amicus-Curiae be appointed in this case for disposal of the
case.
2. Accordingly, Ms. Priya, learned Advocate is
hereby appointed as Amicus-Curiae to assist this Court in the
present matter.
3. Heard Ms. Priya, learned Amicus-Curiae for
the appellant and Mr. M. Dayal, learned APP for the State.
4. The present appeal has been filed under
Section 374 (2) of Code of Criminal Procedure, 1973
(hereinafter referred as 'Cr.P.C') challenging the Judgment of
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conviction dated 28.02.2013 and order of sentence dated
04.03.2013
passed in Sessions Trial No. 142 of 2011 in
connection with Sandesh P.S. Case No. 117 of 2010 passed by
learned Adhoc Additional Sessions Judge-I, Bhojpur at Ara,
whereby and where-under the appellant has been convicted for
the offence under Section 392 of Indian Penal Code and
sentenced to undergo rigorous imprisonment for a period of five
years under Section 392 of Indian Penal Code with fine of Rs.
10,000 and on failure of payment, the appellant will further be
sentenced to simple imprisonment for three months.
5. The brief facts leading to the filing of the
present appeal on the basis of the written statement of the
informant to O/C of Sandesh PS Station, Bhojpur on 12.12.2010
are that on the midnight of 11.12.2010, when after taking meal
the informant and his parents were sleeping in the house in their
separate room, they heard the noise of his cow jumping. He was
awaken by the noise and he further heard the sound of opening
of door of his father’s room and when he came out of the room
along with his mother to see the caw, he saw 2-3 persons
holding his father on pistol point and the accused persons put
pistol point on them also and brought them in his room and
ordered them to sit on the bed and threatened to take their lives.
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In the mean time, one accused came there and ordered not to
raise alarm lest he would shoot them. Two accused persons were
standing with pistol and rest accused persons started breaking
the lock of the box by Khanti and took out ornaments, clothes,
and utensils of tilak, bucket of brass, Barguna, two bowls of
phool, glass, plate of bowl of silver and one fish and Rs. 5000/-
(Five thousand) in cash and further snatched three Jiutia of gold,
nose pin, earrings on pair, payal of silver from his mother. After
that, all four accused persons threatened to shoot them if they
raised alarm and they came out of the house and hearing the
sound of vehicle, the informant and his parents raised alarm
upon which his neighbor Satrughan Singh came there along
with other villagers and opened the door. He and his parents told
him about the occurrence. One of the accused was of whitish
color and clean saved and another accused was of blackish
color. The accused persons committed the offence of dacoity
after jumping over the wall of courtyard. The articles which
were looted belong to his Bhabhi and could be disclosed by his
Bhabhi. All the accused persons were wearing Shirt-Pant.
During occurrence, the accused persons took out the battery of
the informant’s mobile phone.
6. Further, on the basis of the said written
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statement of the informant, Sandesh P.S. Case No. 117, dated
12.12.2010 under Section 392 Indian Penal Code was registered
and after investigation charge-sheet of the offence under Section
395 Indian Penal Code against the present appellant had been
submitted and accordingly, cognizance had been taken by the
learned Chief Judicial Magistrate, Bhojpur at Ara and he had
conducted TIP in jail premises on 24.12.2010.
7. The prosecution examined altogether 8
witnesses to substantiate the charges levelled against the
appellants, who are namely PW-1 Shatrughan Singh, PW-2 Jai
Kumar Singh, PW-3 Dinesh Singh, PW-4 Saroj Devi, PW-5
Manish Kumar Singh, PW-6 Jitendra Singh, PW-7 Ram Vinay
Singh and PW-8 Anand Kumar Singh.
8. PW-1 Shatrughan Singh has stated in his
examination-in-chief that the occurrence took place in the night
of 11-12-2010 and at that time he was sleeping at his door.
Hearing alarm, he went to the door of Dinesh Singh where some
people were already present. Dinesh Singh told him that the
accused persons had confined him, his wife, and his son and the
dacoity has been committed in his house. He said that the
almirah was broken and house-hold articles were scattered.
9. PW-2 Jai Kumar Singh has stated in his
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examination-in-chief that in the mid-night of 10.12.2010 the
occurrence took place. At that time he was sleeping in his house.
Hearing alarm he went to the house of Dinesh Singh where he
saw the household articles of Dinesh Singh were scattered and
he came to know that Shatrughan Singh, mukhiya of the village
opened the Kundi of the house from outside. He saw Dinesh
Singh’s wife and son weeping and saying that the accused
persons had committed dacoity in his house on pistol point.
10. PW-3 Dinesh Singh has stated in his
examination-in-chief that occurrence took place at 11:45 P.M. in
the night on dated 12.12.2010. At that time he was sleeping in
his house. His wife and his son were also sleeping and cow was
tied up in Varanda. The accused persons untied the cow due to
which the cow started jumping and his head was broken. PW-3
came out in the courtyard and tried to catch the rope of cow by
bending himself and in the meantime the accused persons
surrounded him and put pistol point on his earlobe and forced
him to open the door of his son’s room. They took out the
battery from his son’s mobile phone. The accused persons
forced him, his son and wife to sit on the bed of his son and one
of the accused person was standing at their back and one of the
accused persons sat on the chair kept before them. All the
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accused persons had pistol in their hands. After that all the
accused persons started carrying away the household articles
and after that he said to his wife to give all his ornaments, upon
which his wife handed over Jiutia, nose-pin and Payal to him.
He identified four accused persons under the light from the bulb
which was in all four corners of the house. He had participated
in TIP. He has identified the accused who was present in the
dock.
11. PW-4 Saroj Devi (Mother of the informant)
has stated in her examination-in-chief that the occurrence took
place two years ago at 11:45 PM in the night. At that time she
was sleeping with her husband in the house in the southern
room of the house and in adjacent room, her son was also
sleeping. Hearing the sound of breaking of the lock of the gate,
she woke up. Her cow was tied up in the Veranda which the
accused persons had untied. Her son said to his father in this
regard as the cow is untied. In all the four corners of the house
electric bulb was lightening. The accused persons were hidden
and as soon as her husband came out of the room to tie-up of the
cow, the accused put pistol point at his earlobe and did not
permit to tie up the cow rather the accused persons tied up the
cow. Hearing the sound of fire, she raised alarm as CHOR-
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CHOR, then the accused persons threatened her to her life and
put revolver at her. After that the accused persons brought her
and her husband in the room of his son and forcibly opened her
son’s room and forced them to sit on the bed of his son. The
accused persons asked the keys to all the rooms to open them to
which she declined. The accused persons started breaking the
locks of the rooms and locks of three Trunks and two boxes and
took out all the articles which were kept therein. The accused
who was standing in the dock of the trial court had confined her,
her husband and her son on the bed having revolver in his hand
and giving threat to their lives. The accused persons were five in
numbers. The accused persons took out her Mangalsutra, three
Jiutia, Tops of the ear of gold and Payal. The accused persons
had taken shakkar of hand, Darkas, two nose-pin of silver and
two rings of gold which were in the box. The accused persons
locked her, her husband and son in the house and went away.
Hearing the sound of vehicle, she, her husband and her son
raised alarm and hearing alarm, Mukhiya ji and other villagers
came there and opened the door from outside. She claimed to
identify the accused persons by their faces. She has further
stated that after 11-13 days, she had gone to jail premises to take
part in TIP and among nine persons, she identified the present
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accused who was sitting on the chair having revolver in his hand
and had confined them at the time of occurrence.
12. PW-5 Manish Kumar Singh who is informant
of this case, has stated in his examination in-chief that at 11:45
PM. in the night two years ago, the occurrence had taken place.
At that time he was in the house sleeping and in the adjacent
room his parents were also sleeping. His father woke-up and
had gone out of the room and his mother also followed his
father. He then woke-up and when his door was knocked and he
came out of the room and saw that his father had a revolver on
his head and the accused persons brought his parents and him in
his room. One of the accused sat on the chair and asked him and
his parents to sit on the bed and further asked for fire-arms,
upon which, he said that he has no fire-arms but the accused
persons searched out but could not find. The accused persons
took out nose-pin. Jiutia, ear-rings and Payal of his mother and
also took out the articles of his Bhabhi. The accused persons had
asked the keys from his mother to his mother declined, upon
which the accused persons started breaking locks. The accused
persons confined him and his parents in the house and locked
him and his parents from the outside of the house and threatened
to shoot if they raise alarm. After the departure of accused
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persons, he and his parents raised alarm upon which the
villagers came there and opened the main door of the house. The
accused persons took out the battery of his mobile set. He had
claimed to identify the accused persons with their faces. He has
further stated that he had participated in TIP and he had
identified who was the accused person who was standing in the
dock. He has further stated that he had given written petition
with his signature in Sandesh P.S. He has identified the writing
of his petition along with his signature as Ext.1. He has
identified the accused who was standing in the dock and this
accused had put him and his parents on pistol point in his room.
13. PW-6 Jitendra Singh has stated in his
examination-in-chief that at about 11:45 PM in the night on
11.12.2010, the occurrence had taken place. At that time he was
in his house and in the morning when he got up and went to the
house of Dinesh Singh, he found the members of the family of
Dinesh Singh weeping and all the house-hold articles scattered
in the courtyard. Locks of 3-4 boxes were broken. Dinesh Singh
was telling that in the night dacoity had been committed in the
house and the dacoits had looted away all the articles of the
house and the accused persons had pistols in their hands.
14. PW-7 Ram Vinay Singh who is Investigating
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Officer of the case has stated that on 12.12.2010 he was posted
as S.I. of police in Sandesh P.S. District-Bhojpur. On that day,
the o/c of Sandesh Police station had received a written petition
of informant Manish Kumar on the basis of which Sandesh P.S.
Case no.117 of 2010 under Section 392 of the Indian Penal
Code has been registered and investigation was handed over to
him.
14.i. During investigation, he went to village
Narainpur at the house of Manish Kumar, informant and
recorded re-statement of informant and inspected the Place of
occurrence. According to him the Place of occurrence of the
case is the house of informant facing east situated in Village
Narainpur adjacent to the pakka road to sakaldiha at its east
side. There is a varanda in-front of the house and at north-south
to the Varanda, two rooms have been constructed and in the
middle of Varanda door, main entrance doors is situated and
from this road, the informant and his family members comes-out
and goes in and inside the house there is courtyard. At south
side to the courtyard, three rooms in a row and at north side a
separate room is situated. Adjacent to the northern room at west,
a stair is situated and beneath the stair there is exit for female
member of the house and at the west to the courtyard three
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rooms in a row and at north one room is without roof. There is
hand-pipe at east north corner and at north-south to east varanda
is situated. Adjacent to the eastern room, there is stake and dung
were scattered there. It was told to him that in eastern room to at
the side of south it was locked in which bhabhi of the informant
was residing and lock was broken and the room was opened. In
southern room to east informant and in middle room the parents
of informant were sleeping. In all the rooms wooden door have
been found. It was also told to him that accused persons after
breaking the locks of the boxes and trunk by Khanti, took out
clothes, ornaments, utensils and cash amount. He found in all
the rooms articles of the boxes scattered and the mirror of
almirah was broken and there was sign of breaking in the
almirah. At the east side, the main door of the house of
informant and after that pakka road from Sandesh to Sakaldiha,
at west, potato field of informant. At north, main door of the
informant after that foundation of the house of Chhetru Singh
and at south the land of Satya Narain Singh to the occurrence,
are situated.
14.ii. He further stated that he recorded the
statements of witnesses, namely, Saroj Devi, Dinesh Singh and
Shatrughan Singh who told him physical identification of the
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accused persons and on that basis accused had been arrested
when he was on patrolling near Chilhaus petrol pump when he
saw a person going towards the southern boundary wall of the
petrol pump in the night, who attempted to hide himself and
started fleeing at west side. The arrested accused told his name
as Singhasan Sahni @ Sahdeo Sahni s/o Ramchandra Sahni of
village Mak, P.S. Mahua, District- Vaishali. The arrested
accused gave no satisfactory answer as to why he was present
there at that time. When his person was searched out, a Nokia
mobile set Model No.1200, EMEI NO. 35984201711990 SIM
Card No. 8092036716 and Driving License No. 815 of 2005
dated 22.03.2005 was found. Seizure list was prepared in
presence of witnesses Hari Narain Sah and Srikant Chaudhary.
He has identified this seizure list as Ext. 2. He further stated that
after taking permission from the Court, he arranged TIP of
accused through witnesses namely, Dinesh Singh, Manish Singh
and Saroj Devi, in premises of Ara Jail. He has further stated
that he could not find the whereabouts of the looted articles but
finding the offence true against the present accused he kept
investigation continued and finally he submitted charge-sheet
under Section 395 of the Indian Penal Code.
15. PW-8 Sri Anand Kumar Singh who was
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posted as Judicial Magistrate- Ist Class in Sessions Division,
Ara on 24.12.2010 and on that day following order of Chief
Judicial Magistrate, Ara, he went to Ara Jail and in his presence
TIP of suspect (present accused) has been conducted in which
witnesses Manish Kumar Singh, Saroj Devi and Dinesh Singh
had identified the suspect (present accused). He has identified
the identification chart as Ext. 3.
16. On behalf of defence, two defence witnesses
namely, DW-1 Ashok Kumar Singh and DW-2 Ramakant Singh
have been examined.
17. DW-2 Ashok Kumar Singh has stated that he
was Mukhiya of Ahpura Panchayat from 2006 to 2011. On
10.12.2010, he along with Ramakant Singh, Mukhiya of
Bagarpur- Panchayat, Munna Singh, Mukhiya of Chillhaus
Panchayat and B.D.O. Siya Ram Paswan of Sandesh Block,
proceeded to Sonepur fair at 5 PM in the evening by four
wheeler of Ramakant Mukhiya. In Patna Ex-Vehicle driver of
Ramakant Singh met them who had driven the vehicle from
Patna to Sonepur fair and the driver was with him the whole
night and early in the morning at 6 AM returned to Patna and
left there. Later on, he came to know that the accused had been
implicated in a false case.
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18. DW-1 Ramakant Singh has stated in his
examination-in-chief that he was Mukhiya of Baga Panchayat
from 2006 to 2011. He claimed to have little knowledge of the
accused as he was ex-driver of his Scorpio vehicle purchased in
January 2009 in the name of his brother. On 12.12.2010 the
accused was not the driver of his vehicle. On 10.12.2010 he,
Ashok singh Mukhiya of Ahpura Panchayat, Munna Mukhiya of
Chillhaug Panchayat and Siya Ram Paswan, the then BDO of
Sandesh Block had gone to see Sonepur fair by Scorpio, the
Scorpio was being driven by Shailendra Sharma and when
Singhasan Sahni was contacted, Singhasan Sahni told him that
he was in Patna and he would also accompany them. Singhasan
Sahni had driven his vehicle from Patna to Sonepur and on
11.12.2010 Singhasan Sahni left his vehicle in Patna. Singhasan
Sahni was driver of the vehicle of Som Yadav but Singhasan
Sahni told him that his payment was not regular, upon which he
asked him to come. On 12.12.2010, A.S.I Ram Vinay Singh of
Sandesh P.S. telephoned him that a person has been arrested and
requested to come and identify him as he was claiming to be
driver of his vehicle. He went to Police Station and identified
the accused and on request, the police did not released
Singhasan Sahni. He returned home. He further stated that the
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character of Singhasan Sahni is very good.
19. Learned Amicus-Curiae for the appellant
submits that the impugned judgment of conviction and order of
sentence are not sustainable in the eye of law or on facts.
Learned trial Court has not applied its judicial mind and
erroneously passed the judgment of conviction and order of
sentence. From the perusal of the evidences adduced on behalf
of the prosecution it is crystal clear that the offence under
Section 395 of the Indian Penal Code is not made out as only
four persons had participated in the commission of offence and
FIR has been registered against 2-3 unknown persons. In the
written statement of the informant the number of accused
persons has been mentioned to be not more than four persons. In
this regard PW-5 informant Manish Kumar Singh has not
numbered the offenders rather he has stated about the present
accused only and he further stated that after departure of
accused persons, they raised alarm. The counsel further
submitted that there is delay in TIP as appellant was arrested on
13.12.2010 and TIP was held in Jail premises on 24.12.2010
(TIP Chart Ext-3) and it should be held in an interval of 11 days
of arrest and the accused person had been kept in police station
for more than five days.
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19.i. Learned Amicus-Curiae for the appellant
submitted that there is no source of light at the place of
occurrence mentioned in the F.I.R because the time of
occurrence is 11:45 PM in the night but it is evident from the
evidence of Investigating Officer that there is no source of light
when he reached at the place of occurrence and there he also
recorded the statement of witnesses and their also not mentioned
about the source of light nor seized any equipment for source of
light and here it is doubtful that how the witnesses claim to
identify the accused/appellant in dark night. The Investigating
Officer stated in para 15 that he did not seize broken locks and
also in para 17 stated that he arrested the accused on the basis of
suspicion and not on the basis of physical structure stated by the
witnesses. She further submitted that the Learned trial Court
has failed to appreciate the evidence in it’s right perspective and
the impugned judgment of conviction is bad in law as well as on
fact and such to set aside.
19.ii. Learned Amicus-Curiae for the appellant
further has relied upon the judgment of co-ordinate bench of this
Court passed in Cr. Appeal (SJ) No. 158 of 2008, Nand
Kishore Sahni vs. State of Bihar that:
“It has regularly been held by this Court
that the evidence of test identification
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was an enormous un-explained delay in
holding test identification parade for
identification of the suspected accused. …..
The unexplained delay in holding the test
identification parade with further non-
explanation or not putting the appellant on
test identification parade on 05.02.1994
and 22.02.1994 makes the evidence of test
identification parade suspect and in that
view of the matter it is not safe to act upon
that evidence for upholding the judgment of
conviction and sustaining the sentence
passed upon the appellant.”
19.iii. If identification in the TIP has taken place
after the accused is shown to the witnesses, then not only is the
evidence of TIP inadmissible, even an identification in a court
during trial is meaningless (Shaikh Umar Ahmed Shaikh and
Anr. v. State of Maharashtra (1998) 5 SCC 103). Even a TIP
conducted in the presence of a police officer is inadmissible in
light of Section 162 of the Code of Criminal Procedure, 1973
(Chunthuram v. State of Chhattisgarh (2020) 10 SCC 733 and
Ramkishan Mithanlal Sharma v. State of Bombay (1955) 1
SCR 903).
20. On the other hand, learned Additional Public
Prosecutor has vehemently opposed this appeal and submits that
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there is direct allegation against the present appellant, for
dacoity. In view of the aforesaid statements and the evidence on
record, learned trial Court has rightly convicted the appellant
and the present appeal should not be entertained.
21. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court. I have thoroughly perused the
materials on record and aforesaid judgments referred by the
Amicus-Curiae as well as given thoughtful consideration to the
submissions advanced by both the parties.
22. Having deeply studied and scrutinized the
facts and the material on record of the present case, it is evident
to note that there was no description of source of light
mentioned in the FIR, when the investigating officer reached at
the place of occurrence where he also recorded the statement of
witnesses and there also not mentioned about the source of light
nor seized any equipment for source of light and here it is
doubtful that how the witnesses claim to identify the
accused/appellant in the dark night without any source of light.
None of the prosecution witnesses mentioned above the source
of light at the place of occurrence in their deposition except PW-
3 and PW-4. PW-3 and PW-4 have only disclosed about source
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of light during the trial and not during the course of
investigation. The Investigating Officer stated in para 15 that he
did not seize broken locks and also in para 17 stated that he
arrested the accused on the basis of suspicion and not on the
basis of physical structure stated by the witnesses. The evidence
of test identification parade gets suspicious as it is shown that
there was an enormous un-explained delay in holding test
identification parade for identification of the suspected accused.
There could be an inference that the police was waiting for
ensuring the identification of the appellant by witnesses after
they had the opportunity of fully seeing the appellant so as to
identifying him at the test identification parade. As PW-4 in her
deposition para No. 7 stated that she received an information
about a dacoit being arrested and thereafter, she along with other
persons went to the police station and identified him and in Para
9 she stated that she has identified the same person in the TIP
whom she identified at the police station. The unexplained delay
in holding the test identification parade with further non-
explanation or not putting the appellant on test identification
parade makes the evidence of test identification parade
suspectful and in that view of the matter it is not safe to act upon
it. The prosecution has not established its case beyond
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reasonable doubt. Apart from the TIP, I find no other evidence
put forth by the prosecution to prove the guilt of the accused for
offences under Section 392 of the Indian Penal Code. On the
other hand, defence has also established his case as the accused
person was not present at the place of occurrence and he has
shown his driving license to the Investigating Officer while he
was on patrolling duty. Since the prosecution has not been able
to prove its case and the defence has put forth stronger evidence
showing that he was not present at the place of occurrence and
at the time of occurrence, the accused/appellant is hereby given
the benefit of doubt and the appeal is allowed.
23. Hence, the Judgment of conviction dated
28.02.2013 passed in Sessions Trial No. 142 of 2011 arising out
of Sandesh P.S. Case No. 117 of 2010, passed by learned Adhoc
Additional Sessions Judge-I, Bhojpur at Ara is set aside and the
accused/appellant is acquitted from the charges leveled against
him. As the appellant is on bail, he is discharged from his
liability of bail bonds.
24. Before parting with this appeal, Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 10,000/- (ten thousand) to the learned Amicus-Curiae Ms.
Priya towards honorarium for assisting this Court in the present
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appeal.
25. Let a copy of the first and last page of this
judgment be handed over to the Advocate Ms. Priya, learned
Amicus-Curiae and Office is directed to proceed further in
granting honorarium to her which is to be paid by Patna High
Court legal services committee.
26. Accordingly, this appeal is allowed.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
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