Patna High Court
Case Details
Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.162 of 2001 ========================================================= (Against the judgment of conviction dated 20-04-2001 and order of sentence dated 24-04-2001, passed by Ist Additional Sessions Judge, Bhabua, in Sessions Trial No. 157 of 1994) 1. Badshah Nutt, S/o Late Lattan Nutt, Resident of Village-Amarha, P.S. Sonhan, at present residing at village-Semaria, P.S. Bhabua, district-Kaimur at Bhabua. 2. Nagina Bind, S/o Late Triveni Bind, R/o Village-Harna Tand, P.S. Sonhan, District-Kaimur (Bhabua). Versus .... .... Appellants. The State of Bihar .... .... Respondent/s ========================================================= Appearance : For the Appellant/s : Mr. Ravi Shankar Sahay, Advocate. Mr. Ajay Nandan Sahay, Advocate. For the Respondent/s : Mr. Sujit Kimar Singh, A.P.P. Dated/ the 2nd day of April, 2013 ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Hemant Kumar Srivastava, J.
Legal Reasoning
1. Heard learned counsel appearing for the Appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2.This criminal appeal has been preferred against the judgment of conviction dated 20-04-2001 and order of sentence dated 24-04-2001, passed by Ist Additional Sessions Judge, Bhabua, in Sessions Trial No. 23/170 of 1991/2000 by which and whereunder, he convicted the appellants for the offence punishable under Section-395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for the period of six years. 3. In brief, the fact, which lies to file this Cr. Appeal, is that Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 2 P.W. 1, namely, Lallan Singh gave his fardbeyan to Officer-in-charge of Bhabua Police Station on 11-11-1988 at his home to this effect that in the night of 12-09-1988, while he alongwith his other family members was sleeping in his house, 8-9 dacoits entered into his house and committed dacoity. He further stated that he identified the appellants in the light of torch flashed by the dacoits while they alongwith other dacoits were decamping alongwith looted booty. 4. On the basis of aforesaid fardbeyan, Bhabua P.S. Case No. 318 of 1988 under Section-395 of the Indian Penal Code, was registered and formal FIR was drawn up against the appellants and 6-7 unknown persons. 5. After investigation, police submitted charge sheet against the appellants and one accused, Parikha Bind, for the offence under Section-395 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 6. The appellants alongwith co-accused, Parikha Bind were put on trial and they were jointly charged for the offence punishable under Section-395 of the Indian Penal Code, to which, they denied the charge and claimed to be tried. 7. In course of trial, prosecution examined altogether, 7 witnesses, and, got exhibited signature of P.W. 1 as Ext-1, formal FIR as Ext.-2 and fardbeyan as Ext. 3. 8. The statements of appellants and other accused were recorded under Section-313 of the Cr. P.C. in which, they reiterated their Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 3 innocence. No evidence was adduced on behalf of the defence but from perusal of statement of appellants recorded u/S 313 of the Cr.P.C. as well as trends of cross-examination of the prosecution witnesses, it appears that the appellants denied their involvement in the alleged dacoity. 9. Learned trial court, having analyzed the prosecution evidence and having relied upon testimony of P.W. 1, P.W. 2 & P.W. 3, convicted and sentenced the appellants in the manner, as stated above whereas; co-accused, Pareekha Bind was acquitted of the charge. 10. Learned counsel appearing for the appellants, challenged the impugned judgment of conviction and order of sentence, arguing that according to prosecution case itself, the alleged occurrence took place in the night of 12-09-1988 but fardbeyan of the informant was recorded on 11-11-1988 i.e. near about after two months of the alleged occurrence and no plausible and sufficient explanation was given by the prosecution for the aforesaid delay, in lodging the first information report. He, further submitted that the prosecution could not succeed to establish the source of identification. Continuing his submission, he submitted that P.W. 1 has stated in his fardbeyan that he identified the appellants in the light of torch, flashed by the dacoits, while they alongwith other dacoits were decamping alongwith looted booty but P.W. 1 developed the story and in course of trial, stated that he identified the appellants in the light of Lantern as well as in the light of torch, flashed by the dacoits. He further submitted that the I.O. did not seize any lantern nor the said lantern was produced before the I.O. and, therefore, it is hard to believe that at the time of alleged dacoity, any lantern was burning in the house of the P.W. Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 4 1. He further submitted that so far as identification of the appellants in the light of torch, flashed by the dacoits, is concerned, it is not possible to identify any person in the light of torch, particularly, in the circumstances, when the torch is flashed by another person. In support of his contention, he referred a decision reported in 2000(1) PLJR page 515 (Bandhu Yadav & Ors. Vs. The State of Bihar) in which, Division Bench of this court observed that it is difficult to accept the assertion of the eye witnesses, who claimed to have identified the culprits, in the torch light, flashed by the accused persons. He further submitted that moreover, except P.W. 1 none has claimed to have identified the appellants at the time of commission of the dacoity but P.W. 1 did not disclose the name of appellants to his co-villagers including his family members and for the first time, he disclosed the name of the appellants after two months of the alleged occurrence and, therefore, no reliance can safely be placed on the testimony of P.W. 1. He further submitted that the learned trial court, based his findings only on surmises and conjectures and therefore, the impugned judgment of conviction and sentence order cannot be sustained in the eye of law. 11. On the other hand, learned Additional Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence, arguing that conviction can be based only on the basis of single identification and in the instant case, P.W. 1 claimed to have identified the appellants committing dacoity. He further submitted that so far as delay, in lodging the first information report, is concerned, the P.W. 1, specifically, stated in his fardbeyan as well as in his deposition that the dacoits had given threatening of dire consequences Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 5 and on account of the aforesaid fear, he could not gather courage to lodge the case against the dacoits but when police came at his home and assured for his protection, he could muster courage and lodge the case and, therefore, prosecution properly explained the delay in lodging the first information report. . 12. On perusal of the materials available on the record, I find that P.W. 1 is informant, P.W. 2 is wife of the informant and P.W. 3 is nephew of the informant and it is stated that all the aforesaid witnesses were present in the house, when the occurrence of dacoity, took place. Furthermore, I find that P.Ws. 4, 5 & 6 are co-villagers of the informant and out of them; P.W. 6 has been declared hostile. Furthermore, I find that P.W. 7 is I.O. of this case. 13. Before discussing the deposition of other witnesses, I would like to discuss the deposition of P.W. 7. This witness stated in his examination-in-chief that the appellant No. 2 was arrested by Bhabua Police in connection with Bhabua P.S. Case No. 254 of 1988 and in the aforesaid case, he made his confessional statement disclosing his involvement in the present case and after that, the then SDO, K.P. Ramaiya informed the officer-in-charge of Bhabua Police Station about the above-said confessional statement and after that, the then officer-in- charge of Bhabua Police Station namely, Bhanu Pratap Singh went to the house of P.W.1 on 11-11-1988 and recorded the fardbeyan of P.W. 1. Therefore, it is clear from the aforesaid statement of P.W. 7 that for the first time, P.W. 1 disclosed the name of appellants in connection with the present case of dacoity but admittedly, before disclosure of name of appellant No. 2, in the present case by the P.W. 1, his name had already Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 6 been surfaced in connection with the present case of dacoity in his so- called confessional statement recorded by police in connection with Bhabua P.S. Case No. 254 of 1988. Furthermore, the aforesaid fact suggests that P.W. 7 was aware of the name of appellant No. 2 as well as other persons, whose names had surfaced in so-called confessional statement of appellant No. 2 in connection with Bhabua P.S. Case No. 254 of 1988 before recording the fardbeyan of P.W. 1. 14. P.W. 1 has admitted in his deposition that appellants were well-known to him prior to the alleged occurrence and he also stated that after the occurrence, villagers came at his home but he did not disclose the name of appellants to the co-villagers. P.W. 2 had admitted in her deposition that P.W. 1 disclosed the name of appellants after two months of the alleged occurrence and almost same statement has been made by P.W. 3. 15. P.W. 4 and P.W. 5 are co-villagers of P.W. 1 and the aforesaid witnesses stated that after dacoity, they reached at the house of P.W. 1 but P.W. 1 did not disclose the name of any dacoits. Therefore, it is clear from the aforesaid materials that the name of appellants came in this case after two months of the alleged occurrence when the then, officer-in-charge of Bhabua Police Station, went to record the fardbeyan of the P.W. 1 and, therefore, the aforesaid circumstance creates doubts about the genuineness of the prosecution case, particularly, about the involvement of the appellants in the alleged crime. 16. Apart from the aforesaid facts, the P.W. 1 developed the prosecution story, in course of trial, when he stated that he identified dacoits in the light of lantern as well as in the light of torch, flashed by the Patna High Court CR. APP (SJ) No.162 of 2001 dt.02-04-2013 7 dacoits because no such statement had been made by P.W. 1 in his fardbeyan. Moreover, the lantern, which was said to be burning in the house at the time of alleged occurrence, was not seized by the I.O. nor it was shown by P.W. 1 to police and, therefore, non-seizure of the lantern is fatal to the prosecution case and so-called identification of appellants in the light of lantern becomes doubtful and in my view, prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and appellants are entitled to get the benefit of doubt. 17. On the basis of aforesaid discussions, this Cr. Appeal is allowed and the impugned judgment of conviction and sentence order is, hereby, set aside. Appellants are on bail. They are discharged from the liabilities of their bail bonds. Patna High Court Dated/ the 2nd day of April, 2013 AFR/A.K.V./- (Hemant Kumar Srivastava, J)