Araria. The State Of Bihar v. with
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.59 of 2013 =========================================================== Md. Raquib @ Raquib, son of late S.K.Yusuf, resident of village-Satbita, P.S.Jokihat, District-Araria. The State Of Bihar Versus with .... .... Appellant .... .... Respondent Criminal Appeal (SJ) No. 68 of 2013 =========================================================== 1. Baharuddin & 2. Shahabuddin @ Kaila. Both son of Late Nabir @ Nabirruddin, resident of village-Gamahria, P.S. Jokihat, District-Araria. Versus .... .... Appellants The State Of Bihar .... .... Respondent =========================================================== Appearance : (In CR. APP (SJ) No. 59 of 2013) For the Appellant : M/S V.D.Singh, Mukesh Kumar Rana & Ziaul Quammer, Advocates. For the Respondent : Mr. Z. Hoda, A.P.P. (In CR. APP (SJ) No. 68 of 2013) For the Appellants : M/S V.D.Singh, Mukesh Kumar Rana & Ziaul Quammer, Advocates For the Respondent : Mr. Z. Hoda, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 21-03-2013 With consent of the parties, both the appeals have been taken up for final hearing. 2. Heard Mr. Vikramdeo Singh, learned counsel for the appellant and Mr. Z.Hoda, learned A.P.P. for the State. 3. These two appeals arise out of judgment dated 17.12.2012 passed in Sessions Trial No.647 of 2002/Trial No.221 of
Legal Reasoning
Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 2 2012 by the learned Ist Additional Sessions Judge, Araria whereby and whereunder the appellants have been held guilty for the offence punishable under Section 395 of the Indian Penal Code. After holding the appellants guilty, the trial court, by order dated 21st December, 2012, sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- each. In default of payment of fine, they have been ordered to undergo rigorous imprisonment for a further period of six months. 4. The prosecution case is based on the fardbeyan of one Washiur Rahman, recorded on 13.10.1993 at 6 a.m. by one Shivendra, an Assistant Sub Inspector of Police of Jokihat police station. In the fardbeyan, it has been alleged that on 12.10.1993, at 11.45 p.m, while the informant was sleeping on a cot in front of his shop, suddenly, 7-8 dacoits variously armed with lathi, dagger etc. came there. They tied his hands and put cloth in his mouth. They put Gupti (a sharp edged weapon) on his belly and threatened him to keep quiet. They enquired from him about his gun. The informant told them that his gun was kept at his brother’s residence at Araria. One of them asked him to give key of the aforesaid shop. Apart from the aforesaid 7-8 dacoits, who had come together some other miscreants were also found present there. They broke open the door of the shop of the informant. At that time, another shopkeeper, namely, Sagir asked ‘who is there?’ Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 3 However, the dacoits threatened him too and told to keep quiet. When the informant tried to stand up, one of the miscreants assaulted him with lathi on his knee but another miscreant requested him not to assault further. The informant identified him as brother of Eqbal, namely, Raquib @ Raquib. The miscreants looted several articles of the grocery shop of the informant including the license of his gun. They also took away some cartridges which were kept in a packet. The entire operation of loot continued for about fifteen minutes. Thereafter, the miscreants took the informant inside the shop and locked the same from outside. When the miscreants left the place, he raised alarm pursuant to which the shopkeepers of the neighbourhood, the Chaukidar and the Dafadar of the locality reached at the place of occurrence immediately. They chased the dacoits. However, while retreating the dacoits threw two boms on them out of which one exploded. The dacoits also threw a Jhola containing several articles for manufacturing bomb, a knife, Chillum, three pudias of ganja and a letter written in Urdu. The informant claimed that articles worth Rs.1900/- were looted by the dacoits from his shop in the alleged incident. The informant also claimed to identify the dacoits by face. 5. The fardbeyan of the informant was testified by Sagir and Ainul. On the basis of the aforesaid fardbeyan, Jokihat P.S.Case No.109 of 1993, was registered under Section 395 of the Indian Penal Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 4 Code against Md. Raquib @ Raquib and nine unknown accused persons. The police investigated the case and on conclusion of investigation, submitted chargesheet. The Magistrate took cognizance of the offence and after supply of police papers, committed the case to the court of Sessions for trial. 6. The trial court framed charge under Section 395 of the Indian Penal Code against the appellants to which they pleaded not guilty and claimed to be tried. Accordingly, the trial commenced. 7. In coursed of trial, three witnesses were examined on behalf of the prosecution in order to prove the charge. They are P.W.1, Sk. Bechan, P.W.2, Md. Sagir, witness to the fardbeyan and P.W.3, Washiur Rahman, the informant. 8. The defence also examined two witnesses. They are D.W.1, Md. Kasim and D.W.2, Md. Yasin. The defence also proved a registered sale deed dated 29.03.1972 which has been marked as Ext-4 in course of trial. 9. P.W.1, Sk. Bechan, stated that he went to the house of the informant on the next day of the occurrence after coming to know about the incident of dacoity. At this stage, he has been declared hostile by the prosecution. The prosecution put him to cross examination under Section 154 of the Indian Evidence Act, but nothing cogent could come out in his cross-examination. Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 5 10. P.W.2, Md. Sagir, a witness to the fardbeyan, has stated that he heard about the incident but had not seen the occurrence himself. He has proved his signature on the seizure memo which has been marked as Ext-1. In examination-in-chief itself, he has stated that his statement was never recorded by the police in course of investigation. In cross-examination, he admitted that on 13.10.1993, in the morning, the police had taken his signature on a plain paper and he further admitted that in his presence no incriminating article was ever seized. 11. P.W.3, Washiur Rahman, has more or less corroborated his statement in the fardbeyan. In the fardbeyan, he has stated that he identified appellant Md. Raquib @ Raquib by voice as well as by face but while deposing in court, he has omitted to disclose that he identified the appellant Md. Raquib by face. In court, he has stated that Deputy Superintendent of Police and the police party of Jokihat police station reached at the place of occurrence immediately after the occurrence. According to him, they seized the articles at the place of occurrence and brought it to the police station where the seizure lists were prepared. He has proved his signature on the two seizure memos which have been marked as Ext-2 and 3 respectively. He has proved his signature on the fardbeyan which has been marked as Ext-4. He identified the appellants in dock. In cross-examination, Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 6 he has admitted that it was a dark night and he could identify the appellant Md. Raquib @ Raquib by voice, as his Nanihal was in his village and he used to frequently visit his Nanihal. He has further admitted that the appellant Md. Raquib @ Raquib was found standing at the place of occurrence but he had not participated in the loot committed inside his shop. He further admitted that perhaps it was because of the appellant Md. Raquib @ Raquib, the dacoits did not assault him any further after giving him one lathi blow. He denied the defence suggestion that since Md. Raquib @ Raquib was a Bataidar and owing to some dispute relating to Bataidari, he has been implicated in this case falsely. He also denied that since the appellant Md. Raquib @ Raquib had opposed him in his election, he has implicated him in the present case. 12. At this stage, it would be relevant to note that D.W.1, Md. Kasim, has proved a registered Kewala executed by the informant and his three brothers in favour of one Md. Yaseen. He has stated that Md. Yaseen is brother-in-law of one of the brothers of the appellant Md. Raquib @ Raquib. The sale deed proved by him has been marked as Ext-A. 13. D.W.2, Md. Yaseen, has stated that the informant and his brothers had executed a sale deed in his favour. He has further stated that there was some dispute relating to land with the informant Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 7 and, as such, the informant implicated Md. Raquib @ Raquib who is younger brother of his brother-in-law. 14. From the evidence discussed, hereinabove, according to the informant, the police reached at the place of occurrence immediately after the occurrence but the fardbeyan was recorded after six hours. The delay of six hours in recording the fardbeyan may not be termed to be an undue delay under ordinary circumstances. However, when the informant claims that the police party of the Jokihat police station, the Deputy Superintendent of Police, the Chaukidar and the Dafadar reached at the place of occurrence immediately, the delay of six hours in recording the fardbeyan of the informant creates doubt about the veracity of the prosecution case. A prompt FIR always gives assurance to the authencity of the information received by the police. A delayed information gives rise to the apprehension that there may have been due deliberation, concoction and fabrication in giving information to the police. 15. The investigating officer of the case has not been examined in course of trial. There is no explanation for his non- examination. In absence of the examination of the investigating officer, the place of occurrence, the manner of occurrence and the recovery of incriminating articles could not be properly proved. His non-examination has certainly caused prejudice to the defence. Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 8 16. I further find that the Dafadar, the Chaukidar and the Dy.S.P. who are alleged to have arrived at the place of occurrence have also not been examined in course of trial. In the fardbeyan itself, the informant has alleged that the neighbouring shopkeepers had chased the miscreants but unfortunately, apart from P.W.2, Md. Sagir, no other witness of neighbourhood has deposed in the court. The fardbeyan, the formal FIR and the seizure lists have also not been proved in course of trial. The prosecution has simply proved the signature on the fardbeyan and the seizure lists. 17. According to P.W.3, the police had made seizure of the articles and had prepared the two seizure memos at the police station. However, from perusal of Exts-2 and 3, it appears that the police did not seize any article from the place of occurrence rather the informant had himself produced certain articles before Shivendra Kumar, an ASI of police, who had recorded the fardbeyan. The A.S.I., on production of those articles, prepared two production-cum-seizure memos in front of the shop of the informant. 18. It is relevant to note here that the police officer who recorded the fardbeyan and prepared the production-cum-seizure memos has also not been examined in course of trial. 19. The informant claimed that P.W.2, Md. Sagir, had seen the occurrence of dacoity but Md. Sagir stated that he had not Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 9 seen the incident of occurrence and he came to know about the same in the next morning, i.e., on 13.10.1993. 20. Thus I find that the case rests on the sole testimony of the informant. It is true that no particular member of witnesses would be required for proof of any fact. Even non-examination of all the eye witnesses of the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. The court can and may act on the testimony of a single witness provided he is wholly reliable. But, if there are doubts about the testimony, the court would insist on corroboration. From the evidence discussed, hereinabove, the informant can not be treated as a wholly reliable witness. There is no corroboration of his evidence. He identified the appellant Md. Raquib @ Raquib by voice and further identified all the appellants for the first time in court. The appellants were never put on test identification parade. Such an identification is a very weak type of evidence. 21. Under the circumstances, I have been left with no option but to set aside the judgment of conviction and order of sentence recorded by the trial court. Accordingly, the impugned judgment dated 17.12.2012 and the order of sentence dated 21.12.2012, passed by the Ist Additional District & Sessions Judge, Araria, in Sessions Trial No.647 of 2002/Trial No.221 of 2012, are set Patna High Court CR. APP (SJ) No.59 of 2013 dt.21-03-2013 10 aside. In Cr.Appeal(SJ)No.59 of 2013, the appellant, Md. Raquib @ Raquib, is on bail. He is discharged from the liabilities of the bail bond. In Cr.Appeal(SJ)No.68 of 2013, the appellants, Baharuddin & Shahabuddin @ Kaila, are in custody. They are directed to be released forthwith, if not required in any other case. 22. The appeals stand allowed. (Ashwani Kumar Singh, J) Patna High Court, Dated 21st day of March, 2013, Brajesh Kumar/NAFR