Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1113 of 2012 ====================================================== Shambhu Ram, son of Late Govind Ram, resident of village-Kageshwar P.S.Khaira in the District of Jamui. Versus .... .... Petitioner/s The State Of Bihar .... .... Respondent/s ====================================================== with Criminal Revision No.1144 of 2012 ====================================================== Kapil Ram @ Kapildeo Ram S/O Late Rameshwar Ram R/O Vill-Moura, P.S.-Laxmipur(Gidhour), Distt-Jamui Versus .... .... Petitioner/s 1. The State Of Bihar 2. Gorelal Yadav S/O............................ R/O Vill-Moura, P.S.-Laxmipur Gidhour, Distt-Jamui .... .... Respondent/s ====================================================== Appearance : (In CR. REV. No.1113 of 2012) For the Petitioner/s : Mr. Akhileshwar Pd. Singh, Sr.Advocate. Mr. Sarvan Kumar, Advocate. For the Respondent/s : Mr. A.H.M.Rahman, APP. (In CR. REV. No.1144 of 2012) For the Petitioner/s : Mr. Kartik Kumar Sinha, Advocate. For the Respondent/s : Mr. Abhay Kumar-I, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 8 2-08-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Cr.Revision No.1113 of 2012 wherein Shambhu Ram happens to be the petitioner and Cr.Revision No.1144 of 2012 wherein Kapil Ram @ Kapildeo Ram happens to be the petitioner commonly originate against the judgment of 2 concurrence dated 31.01.2012 passed by Additional Sessions Judge, Fast Track Court No.I, Jamui in Cr.Appeal No.98 of 1999 with modification in sentence reducing to four years from seven years so imposed by 2nd Assistant Sessions Judge, Jamui vide judgment dated 24.06.1999 and sentence dated 25.06.1999 passed in connection with Sessions Trial No.228 of 1997 holding Panchu Ansarai, Shambhu Ram, Nago @ Nageshwar Ram and Kapil Ram guilty for an offence punishable under Section 395 of the IPC and directed each of them to undergo R/I for seven years. 3. P.W.8 Gore Lal Yadav gave his fardbeyan on 23.03.1994 at about 1 P.M. alleging inter alia that there was commission of dacoity in his house in between night of 22/23.03.1994 wherein the miscreants took away their belongings. During course thereof, they were also assaulted. The dacoits also committed dacoity in the house of his aunt and had assaulted the inmates. He along with family members had claimed identification of Nageshwar Ram of village Bageshwar as well as Kuli Yadav, Panchu Ansarai, Bulak Yadav, Umesh Yadav and Shambhu Ram. 4. After registration of the case followed with submission of chargesheet, the trial was taken up whereunder 11 witnesses were examined on behalf of the prosecution as also exhibited series of documents. At the other hand, defence had not 3 produced any witness and the trial ultimately concluded recording conviction and sentence in a manner as divulged above. During course of appeal, the finding of fact was concurred. However, sentence was reduced from R.I. seven years to four years, hence this revision. 5. It has been submitted on behalf of both the petitioners that the learned courts below failed to scrutinize the
Legal Reasoning
evidence of the P.Ws. in the background of improbabilities visualizing therefrom. The first and foremost plea has been raised over manner of identification. It has been submitted that at the time of occurrence it was dead of night while the prosecution were sleeping they have awaken during course of dacoity then in that event, they could not have in a position to identify the miscreants having drowsiness. It has also been submitted that they have claimed identification in the light of lamp which was not at all acceptable in the background of the fact that no seizure of lamp was ever made by the investigating officer during course of investigation nor produced during course thereof. It has also been submitted that there was no occasion for P.Ws.5, 6, 7 and 9 to claim identification being a female having no assess in the locality. Therefore, once the source of identification is disbelieved then in that event the complicity of the petitioners being a dacoit 4 and identified as dacoit during course of dacoity found to be completely availed. 6. It has also been submitted that there happens to be vital contradiction, exaggeration in the evidence of P.Ws. and on account of non-examination of I.O. who had conducted major part of investigation, petitioners are entitled for acquittal in the background of the fact that on that very score they found their interest highly prejudiced. 7. In an alternative, it has also been submitted that petitioners have remained under custody for substantial period and taking into account the ordeal faced by them since 1994 justify modification of sentence as have already undergone. 8. At the other hand, the learned Additional P.P. while supporting the concurrent finding of fact submitted that there happens to be no exaggeration in such manner which would affect adversely to the prosecution case. It has also been submitted that the learned Appellate Court had already taken lenient view while reducing the sentence of seven years to four years. As such, the successive orders are just, legal and proper and did not attract interference. 9. From the Lower Court record, it is apparent that the doctor has not been examined. It is also apparent from the Lower 5 Court record that out of eleven witnesses so examined P.Ws.1, 2, 3 and 4 were declared hostile while P.W.10 Yasoda Devi was tender. P.W.11 Ram Bachchan Singh is the investigating officer who had recorded the fardbeyan, took up investigation and submitted chargesheet. During course of investigation, as is evident, he had seized the article which were kept on test identification parade and was identified. Although, one of the co- accused Panchu Ansarai who was charged under Section 412 also is found to be acquitted so far charge under Section 412 of the IPC is concerned. From the evidence of P.W.11, it is apparent that no contradiction or embellishment is found therefrom. As such plea of defence on this score is found to be baseless. 10. Now coming to the evidence of remaining P.Ws., it is evident that they have supported the case of the prosecution as well as the source of identification. During cross-examination the defence would not be able to stake their testimony. At this moment, the evidence of P.W.11 is again being referred for the purpose of appreciation of plea raised on behalf of the petitioner on the score of source of identification/seizure of source of identification. Surprisingly, no cross-examination of this P.W. has been made on that score. Apart from this, any fault on the part of the investigating officer is not going to adversely affect upon the 6 prospect of prosecution case in case the same happens to be proved otherwise. 11. Normally, while exercising the revisional jurisdiction the concurrent finding of the fact is not at all subject to fresh scrutiny but it looks prudent to scrutinize the evidence to sort out deficiency if any, persisting on the record. 12. From the evidence as discussed above, the witnesses have consistently supported the case of the prosecution regarding commission of the dacoity in between night of 22/23.03.1994 and the involvement of petitioners including others is found to be sufficiently proved. 13. With regard to manner of identification in Ramesh v. State by Madhugiri Police reported in (2010) 15 SCC 49, it has been held in para 15 as under:- “As stated earlier, the appellant and these two witnesses (PWs 3 and 4)are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatised to fluorescent light. Visible (sic visual) capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meager light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidence clearly shows that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.” 7 14. Admittedly, Kapil Ram @ Kapildeo Ram is a co- villager and petitioner Shambhu Ram is of village-Kageshwar and he was identified while having bomb in his possession as well as indulged assaulting the prosecution case and is also evident from the cross-examination of the witnesses that they were not been challenged on that very score. 15. Therefore, so far merit of the case is concerned, it is apparent that prosecution has succeeded in proving its case. So far sentence is concerned, taking into account the ordeal faced by the petitioners since after inception of instant trial attracts interference and on account thereof the sentence of four years imposed by the learned Appellate Court is reduced to three years with a further direction of set of in terms of Section 428 of the Cr.P.C. which will meet the ends of justice. 16. With the aforesaid modification in sentence, both the revision petitions are dismissed. (Aditya Kumar Trivedi, J) Patna High Court, Dated 2nd August, 2013. Brajesh Kumar/AFR