Baid Nath Mehtar v. The State Of Bihar

Case No. 79 of 1995 was registered and accordingly, formal first information report was drawn up against the appellant and one other Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 3 person. After completion of investigation, police submitted charge sheet for the offences punishable under Sections 395 and 397 of the Indian Penal Code against the appellant. The cognizance of the offence was taken and the case of appellant was committed to the court of Sessions, in usual way.

5. The appellant was put on trial and accordingly, he was charged for the offences punishable under Sections 395 and 397 of the Indian Penal Code to which he denied and claimed to be tried.

6. In course of trial, prosecution examined, altogether, eight witnesses. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he stated that he was falsely implicated by the informant as he had pounded the pigs of informant prior to the alleged occurrence. The appellant also produced one defence witness who proved receipt which is Annexure-A.

7. The learned trial court having relied upon the testimonies of prosecution witnesses convicted and sentenced the appellant in the manner as stated above.

8. Learned counsel appearing for the appellant as amicus curiae assailed the impugned judgment of conviction and sentence order submitting that appellant is co-villager of informant and according to statement of P.W.8, the appellant was arrested by P.W.8 from his house on the alleged date of occurrence and, therefore, Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 4 the aforesaid circumstance negates the involvement of the appellant in the alleged crime because no prudent person would commit dacoity in his own village without covering his face and furthermore, no person would take rest in his house just after committing the dacoity in his own village. He further submitted that the prosecution witnesses claimed to have identified the appellant in the light of DHIBRI which was burning in their house at the time of alleged crime but Investigating Officer did not find any DHIBRI nor seized the said DHIBRI and, therefore, non seizure of the DHIBRI is fatal to the prosecution case. He further submitted that P.W.4 stated in his Ferdbeyan that his mother had identified the appellant and one other dacoit in course of dacoity but in course of trial, P.W.4 and his other family members claimed that they had also identified the appellant at the time of alleged dacoity. He further submitted that the mother of P.W.4 has been examined before the trial court as P.W.2 and she stated that only two persons committed dacoity in her house and similar statement has been made by P.W.3, Manju who happens to be cousin sister of P.W.4 whereas P.W.4 and other witnesses stated that dacoits were 8 to 10 in number and, therefore, the aforesaid contradiction also creates doubt about the genuineness of the prosecution story. He further submitted that even if the prosecution succeeded to prove the factum of dacoity, the participation of the Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 5 appellant in the aforesaid dacoity is doubtful because admittedly, the appellant is co-villager of P.W.4 and Exhibit-A as well as deposition of defence witness reveal that prior to the alleged dacoity, the pig of P.W.4 was pounded by the appellant and, therefore, P.W.4 and his other family members had grudge against the appellant.

9. On contrary, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that almost all the material prosecution witnesses supported the factum of dacoity as well as participation of the appellant in the alleged dacoity. He further submitted that according to prosecution case, P.W.5 sustained injury in the aforesaid dacoity and just after the alleged dacoity he was examined by P.W.6 who found injuries on the person of P.W.5 and, therefore, the aforesaid circumstance also supports the factum of dacoity. He further submitted that in course of trial, witnesses stated that appellant had covered his face by gamcha but luckily, the aforesaid gamcha got off during commission of the dacoity and in that course, the witnesses identified the appellant. He further submitted that non seizure of DHIBRI is not fatal to the prosecution case because being illiterate persons, the prosecution witnesses did not produce the aforesaid DHIBRI before Investigating Officer nor Investigating Officer did take any pain to seize the aforesaid DHIBRI and, therefore, there is nothing on the Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 6 entire record on the basis of which this Court could interfere with the impugned judgment of conviction and sentence order.

10. P.W.1, Rambrit Malli is father of P.W.4, informant. This witness supported the factum of dacoity. This witness stated that while he was sleeping at the door of his house, 9 to 10 dacoits came there and started assaulting him and also snatched his money. This witness further stated at para 2 of his examination in chief that one dacoit remain stayed at his door whereas rest dacoits entered into his house and assaulted his daughter as well as his wife and also committed loot. He further stated that at the time of commission of the aforesaid dacoity, one DHIBRI was burning at the door. He claimed to have identified the appellant and one other dacoit but from perusal of para 6 of P.W.8, it would appear that P.W.1 had not claimed before the Investigating Officer (P.W.8) to have identified the appellant at the time of commission of the dacoity. Therefore, in my view, the testimony of P.W.1 is not free from doubt in respect of identification of the appellant.

11. P.W.2, Jagpati Devi is wife of P.W.1 and she stated that she was sleeping inside the house and 8 to 10 persons came in her house. The aforesaid persons assaulted and committed loot. She stated that a DHIBRI was burning in the house and she identified the appellant and one Karodi. She stated at para 8 of her cross Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 7 examination that there were only two dacoits. She stated that dacoits had broken her wooden box and committed loot.

12. On perusal of deposition of this witness, I find that this witness claimed to have identified the appellant and one other dacoit in the light of DHIBRI.

13. P.W.3, Manju, who happens to be cousin sister of P.W.4, also supported the factum of dacoity and claimed that she had identified the appellant and one Karodia in course of dacoity. She claimed to have identified the appellant and aforesaid Karodia in the light of DHIBRI and torch. She further stated that at the time of dacoity, she was caught by the appellant and Karodia and again she stated that she had seen only two dacoits. She, further stated that appellant, Baid Nath Mehtar and other dacoits had covered their faces with clothes. She further stated that DHIBRI was not only burning in courtyard but also at the door of the house. This witness proved the factum of dacoity as well as participation of the appellant in the alleged dacoity.

14. P.W.4 also supported the factum of dacoity and stated that 8 to 10 dacoits came and assaulted him as well as other inmates of his house and committed loot. He further stated that police came at his house on the same day and recorded his statement. This witness stated that at the time of commission of the dacoity, appellant Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 8 had covered his face by gamcha but luckily, the aforesaid gamcha got off and he identified the appellant. He stated that he had named the appellant before P.W.8 when his statement was recorded and specifically denied this fact that he had not named any dacoit when his statement was recorded by the police. Although, the aforesaid suggestion was given by the defence to this witness but defence did not draw the attention of P.W.8 towards the statement of P.W.4 recorded by the police and, therefore, even if it assumed that this witness had not claimed to have identified the appellant when his statement under Section 161 of the Cr.P.C. was recorded, then also, the defence could not take any benefit of the aforesaid contradiction because admittedly, the aforesaid contradiction was not taken by the defence from P.W.8.

15. P.W.5 has supported the factum of dacoity but he has stated nothing against the appellant because he fairly stated that he could not identify any dacoit but this witness stated that he sustained injury in the aforesaid dacoity and got his treatment at Sahebganj hospital. of P.W.5.

16. P.W.6, Dr. Amarnath Jha proved the injury report

17. P.W.7 is formal witness whereas P.W.8 Investigating Officer of this case. P.W.8 stated that having got rumour Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 9 he reached at the house of P.W.4, recorded his statement, inspected the place of occurrence and after completion of investigation, submitted charge sheet. This witness stated that in course of inspection he found a broken steel box in the house of P.W.4 and he also found that clothes, utensils and other articles were scattered in the house of P.W.4. This witness further stated that in course of investigation, he found some clothes lying near a pulia. He further stated that on the same day, he arrested the appellant from his house but nothing was recovered from the house of the appellant.

18. On careful examination of depositions of prosecution witnesses, I find that dacoity was committed in the house of P.W.4 on the alleged date of occurrence and in course of aforesaid dacoity, dacoits looted clothes, ornaments and cash and also injured P.W.5 who was got examined by P.W.6 after the occurrence. Furthermore, I find that P.W.8 reached on the place of occurrence just after the alleged dacoity and on the same day, he arrested the appellant from his house and the house of the appellant was searched but no incriminating article was found from the house of the appellant. Furthermore, I find that appellant is co-villager of P.W.4 and other prosecution witnesses and house of the appellant is situated in another tola of the village of P.W.4. It is also apparent from the materials available on the record that being co-villager, appellant was Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 10 well known to material prosecution witnesses including P.W.4 prior to the alleged occurrence.

19. It has been argued on behalf of the appellant that it is hard to believe that being co-villager appellant would commit dacoity in his own village without covering his face but the statements of above stated prosecution witnesses clearly reveal that mask of the appellant was got off during course of the dacoity and as a matter of fact, he had gone to commit dacoity after covering his face. So, in my view, the aforesaid submission of learned counsel for the appellant is not tenable in view of the materials available on the record.

20. Learned counsel for the appellant further submitted that it is also hard to believe that appellant would go to his house after committing the dacoity in his own village but I am unable to accept the aforesaid contention of learned counsel for the appellant because admittedly, just after the alleged occurrence, police reached there and raided the house of the appellant. So, even if the appellant was arrested from his house after the alleged dacoity, the aforesaid circumstance does not make the entire prosecution case doubtful.

21. From perusal of the impugned judgment, I find that learned trial judge based his findings on the basis of materials available on the case diary and in my view, the learned trial court committed error basing his findings on the basis of materials available Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 11 on the case diary but even if the aforesaid findings of the learned trial court are excluded, then also, there are sufficient materials on record to prove this fact that appellant participated in the alleged dacoity and in my view, the prosecution has successfully proved the charges levelled against the appellant.

22. Learned counsel for the appellant submitted that appellant has already remained in jail custody for near about 600 days and he has sufficiently been punished. He further submitted that prosecution could not succeed to bring any criminal history of the appellant on record in course of trial whereas the specific stand of the appellant is that he was falsely implicated by the prosecution on account of previous enmity and, therefore, a lenient view should be taken and end of justice would be met, if appellant is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal.

23. It appears that in course of trial, appellant was arrested on 03.08.1995 and later on, he was released on bail on

26.10.1995. Furthermore, the appellant was convicted on 02.02.2001 and he was taken into custody on the same day and after that he was released on bail vide order dated 03.07.2002. Therefore, I find that learned counsel for the appellant rightly submitted that appellant has already remained in jail custody for near about 600 days and he has Patna High Court CR. APP (SJ) No.67 of 2001 dt.19-03-2013 12 sufficiently been punished. Admittedly, appellant does not have any criminal antecedent and, therefore, in my view also, the end of justice would met, if the appellant is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal.

24. On the basis of aforesaid discussions, this criminal appeal stands dismissed with modification in order of sentence as stated above. SHAHZAD/A.F.R (Hemant Kumar Srivastava, J)