Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.243 of 2013 ====================================================== Anil Kumar Rai, S/o Late Ganga Rai, Resident of Village- Raja Pakar, P.S.- Raja Pakar, Dist.- Vaishali. .... .... Petitioner/s Versus The State of Bihar ====================================================== With Criminal Revision No.260 of 2013 ====================================================== Shyam Ji Singh, son of Late Ram Eqwal Singh, Resident of Village- Pakauli, P.S.- Bidupur, Dist.- Vaishali. .... Respondent/s Versus .... .... Petitioner/s The State of Bihar ====================================================== With Criminal Revision No.1167 of 2012 ====================================================== Prem Shankar Poddar, son of Surya Narain Poddar, resident of Mahnar, P.S. Mahnar, Distt. – Vaishali. …….. Respondent/s Versus .... .... Petitioner/s …….. Respondent/s The State of Bihar ====================================================== Appearance: (In CR. REV. No.243 of 2013) For the Petitioner/s For the State (In CR. REV. No.260 of 2013) For the Petitioner/s : Mr. Tilak Sao, Adv. : Mr. Uma Nath Mishra, A.P.P. : Mr. Kanhaiya Prasad Singh, Sr. Adv. Mr. Tilak Sao, Adv : Mr. Matloob Rab, A.P.P. For the State (In CR. REV. No.1167 of 2012) For the Petitioner/s For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER : Mr. Tilak Sao, Adv. : Mr. Md. Arif, A.P.P. 9. 25-10-2013 All these three revision petitions arise out from common judgment relating to case bearing G.R. No.1855 of 1980 as such been heard together and are being disposed of by a common judgment. 2. Each of the petitioners along with Kameshwar (Not a petitioner) have been found guilty for an offence punishable under 2. Section 392, 411 of the Indian Penal Code vide judgment dated 22.07.2011 passed by Railway Judicial Magistrate, Sonepur, Saran in G.R. No.1855 of 1980 and each one was directed to undergo R.I. for three years as well as slapped with fine of Rs.2000 in default thereof to undergo S.I. for three months additionally under Section 392 of the Indian Penal Code as well as R.I. for an year under Section 411 of the Indian Penal Code with a direction to run the sentences concurrently
Legal Reasoning
which further found confirmed vide judgment dated 21.09.2012 passed by Additional Sessions Judge, XIth, Saran at Chapra in Cr. Appeal No.53 of 2011 / 16 of 2011 challenged under present three revision petitions. 3. Arun Kumar Agrawal (PW-1) gave his fardbeyan on
Legal Reasoning
19.10.1980 at about 10:00 A.M. at Police Station, Deshri disclosing therein that on the same day at about 03:30 A.M. he got down at Mahnar Railway Station from a train where unfortunately was intercepted by the criminals who, on the pretext of firearm, took away a briefcase containing the articles detailed therein and escaped towards western direction. No sooner than he informed the A.S.M. at Mahnar Railway Station who accordingly, informed the Sahdei as well as Deshri Railway Station on account of having the criminals escaped towards that direction as well as having both flank of railway line inundated under water leaving no scope for criminals to divert during course thereof. After sometime he got information regarding apprehension of criminals at Deshri whereupon he rushed and 3. identified the criminals who were under police lock up as well as also identified the briefcase belonging to him which was snatched away by the criminal and was seized from possession of criminals. 4. He had further disclosed that the criminals on query have disclosed their identity as Prem Shankar Poddar, Shyam Ji Singh, Anil Prasad and further disclosed identity of his another associate as Kameshwar Prasad Singh. 5. On the basis of the aforesaid written report, Sonepur (Hajipur) Railway P.S. Case No.10 of 1980 was registered and investigation was taken up during course of which co-accused, Kameshwar Prasad Singh was apprehended who was identified during course of T.I. parade and after concluding the same, charge sheet was submitted. The trial commenced and concluded in a manner regarding guilt of petitioners including Kameshwar out of whom save and except Kameshwar, petitioners have challenged the verdict. 6. Learned counsel for the petitioners challenged the finding on factual aspect as well as also questioned the propriety of sentence in the background of non-application of Section 361 of the Cr.P.C. 7. It has been submitted on behalf of petitioners that the whole trial has vitiated on the fact that before registration of present case on the basis of the written report of PW-1, Arun Kumar Agrawal, the police party have already proceeded for nabbing the culprit on account of being informed by the responsible officials regarding 4. commission of cognizable offence. Petitioners were apprehended, articles were seized then in that circumstance at least the police personnel on his self-statement should have recorded the First Information Report. That means to say the action of police personnel, on its face speaks regarding inception of investigation and in the aforesaid background the present written report is found to be inadmissible in the eye of law on account of hit by Section 162 of the Cr.P.C. 8. It has also been submitted that the case suffers from improbability whereupon complicity of petitioners being a culprit is found full of dubietys. To support the same, it has been submitted that the occurrence has been alleged on 19.10.1980 at about 03:30 A.M. at Mahnar Railway Station while apprehension of petitioners is said to be near outer signal of Deshri Railway Station at about 06:00 A.M. The distance in between happens to be 11 K.M. That means to say petitioners apprehension was two and half hours after the alleged occurrence. One should not expect to cover such long distance within the span of two and half hours that too passing over railway track. Not only this, PW-3 had already disclosed presence of R.P.F. personnel at Mahnar P.S., but neither how as informed nor thee was any effort to apprehended the accused at Mahnar Railway Station at their end. 9. It has also been submitted that in the written report the informant had detailed the items kept in the briefcase while the recovery happens to be with regard to railway ticket, one packet of 5. Emami powder and one towel yellow colour along with the briefcase. Neither there happens to be any mark of identification nor there happens to be any explanation with regard to absence of the remaining identifiable items whereupon prosecution could base its case belonging to informant, Arun Kumar Agrawal. 10. In continuity with challenging the finding on this very score, it has been submitted that from the written report itself it is apparent that after arrest of petitioners along with briefcase at Deshri Station, ASM of Mahnar Station was informed who, accordingly, intimated informant Arun Kumar Agrawal who arrived at Deshri Station subsequently and written report was launched at 10:00 A.M. The inventory / seizure list happens to be dated 19.10.1980 at about 06:00 A.M. showing the place Dharamdaspur Mathiya near Brahamasthan and surprisingly one of the seizure list witness Suresh Prasad Agrawal who happens to be brother of informant, Arun Kumar Agrawal and had accompanied the informant from his house to P.S. stood as one of the witness thereupon having his address as of Desari, while another seizure list witness Paras Nath Jaiswal belonged to Mahnar. Thus, the aforesaid event is sufficient to discard the theory of recovery of briefcase along with articles from the possession of one of the petitioner Prem Prasad Poddar at 06:00 A.M. at Dharamdaspur Mathiya near Brahamasthan became falsified. In likewise manner it has also been submitted that from Ext.-2, the inventory-cum-seizure list, it is crystal clear that the police official who had prepared the 6. Exhibit-2 had failed to endorse from whose possession the aforesaid recovery was made. That means to say, the theme of recovery of briefcase happens to be not at all conclusively proved. 11. It has further been stated that so far complicity of these three petitioners during course of occurrence is concerned, again the prosecution faulted. None of the petitioners were put on T.I. parade. Petitioners were not apprehended in continuity with commission of the crime nor were chased in its continuity to have direct link connecting the petitioners with the alleged crime. It is also apparent from the written report itself that before furnishing of the same these three petitioners were already under police lock up and identification of petitioners in the aforesaid circumstance was not at all permissible in the eye of law. More over, the informant in his cross-examination had fairly admitted that one of the co-accused, Prem Shankar Poddar is also resident of Mahnar and was known since before. In the aforesaid background, had there been presence of petitioners during commission of crime, his name should have been figured instead of coming out through inventory confessional statement. 12. It has also been submitted that there happens to be inconsistent version of the PWs itself regarding the source of identification. The informant PW-1 had himself divulged that it was complete dark when he got down at Mahnar Station and so it was not feasible for the petitioner to identify the culprit at the other hand the Station Master, PW-2 had stated that there was electricity and there 7. was light on account thereof. Furthermore, the ASM, PW-2 on his own had not spoken regarding commission of the occurrence at the platform while he was on duty rather he came to know from informant. In the aforesaid background, it has been submitted that the theme of identification as suggested by the prosecution is legally not entertainable and on account thereof is fit to be discarded. In an alternative, it has also been submitted that it happens to be the identification for the first time in the court after such long interval and therefore mistaken identity cannot be ruled out. 13. It has also been submitted that during course of inflicting sentence, the successive courts completely overlooked the mandatory provision of Section 360 of the Cr.P.C. or having application of Probation of Offenders Act as mandated under Section 361 of the Cr.P.C. and on account thereof the sentence so inflicted by the learned courts below is fit to be annulled. To support the same, referred AIR 1979 SC 964. 14. At the other hand, the learned Additional Public Prosecutor while supporting the successive finding of the courts below submitted that there happens to be chain of circumstance which ultimately proves the complicity of the petitioners during commission of crime. To support the same, it has also been submitted that as soon as PW-2 was informed by the informant he inquired from Gumti Man through phone and having informed at his end that they were proceeding towards western direction through railway track, 8. accordingly the Station Master of Sahdei Railway Station as well as Deshri Railway Stations were informed. From the evidence of police official, it is apparent that they have chased the culprit who, seeing the police, escaped from railway track and was apprehended at Dharamdaspur Mathiya near Brahamasthan. It has further been stated that presence of ticket from Hajipur to Mahnar supports the case of the prosecution. The informant identified the articles. Therefore, in terms of Section 114 of the Evidence Act conviction of petitioners apart from 411 of the Indian Penal Code is also found justified under Section 392 of the Indian Penal Code. Apart there from the occurrence has been supported by consisting oral evidence. 15. From the lower court record, it is evident that altogether thirteen PWs have been examined in this case out of whom PW-1 is informant, PW-2 is Daroga Singh Baghel, ASM, Mahnar, PW-3 is Ram Sevak Prasad Verma, Constable, PW-4 is Nagendra Prasad Singh, Tendered, PW-5 Paras Nath Jaiswal one of seizure list witness, PW-6 Raja Ram, ASI Deshri Police Station, PW-7 Anil Kumar, ASM Sahdei Police Station, PW-8 Ram Prasad, Tendered, PW-9 Sirajuddin Khan, Havaldar, PW-10 Birendra Tiwari, Tendered, PW-11, Ram Chandra Prasad, Tendered, PW-12 Om Prakash, Clerk, PW-13 Uday Pratap Singh, police official as well as had also exhibited series of documents as Ext.-1, written report, Ext.-2 inventory list, Ext.-3 Seizure list, Ext.-4 fardbeyan, Ext.-5 TIP Chart as well as Material Ext-I, Briefcase, Material Ext-II, Railway Ticket Material Ext-III, 9. Towel, Material Ext-IV Packet of Talcum Powder. Defence save and except making denial during course of statement under Section 313 of the Cr.P.C. did not inter into his defence. 16. Before making critical analysis the evidence available on the record, when the questionnaire of statement under Section 313 of the Cr.P.C. has been gone through, it is apparent there from that no question relating to recovery of seized article has been confronted and on account thereof the petitioners were deprived of to explain to the extent of recovery. Furthermore, the aforesaid deficiency also happens to be a circumstance when the same is taken together with the inventory cum seizure list which happens to be totally absent from whose exclusive possession the recovery was made. In the aforesaid background one could infer that the presumption which the court is at liberty to infer in terms of Section 114 of the Evidence Act could not be found applicable. 17. PW-3 is the constable of Deshri G.R.P. who had stated that as directed they proceeded to apprehend the accused headed by Darogaji and under para-3 of his examination-in-chief he had stated that when they reached Deshri outer signal they found four persons who were challenged. They all ran therefrom and were chased out of whom three were apprehended while fourth managed to escape. Prem Shankar Poddar was possessing briefcase. From possession of accused persons three cartridges were also recovered. During cross- examination at para-5 he had again reiterated that briefcase was found 10. in possession of Prem Shankar. 18. PW-6 is the ASM of Deshri Railway Station who had deposed that while he was on duty, he was informed by ASM, Sahdei Railway Station that the criminals are proceeding towards his station after committing robbery at Mahnar Station. Accordingly he informed the police. He in para-2 had stated that at about 10-11 AM he was informed by the public that police officials had apprehended the culprit and accordingly was declared hostile. 19. PW-12 is the police official who was Officer-in-charge, Deshri Police Station. He had stated that after having been informed by ASM, Deshri that the miscreants are coming towards Deshri Station through railway track after committing robbery at Mahnar Railway Station, he constituted a raiding party, came at Deshri Station and then proceeded towards destination. At outer signal, he found four persons coming having a briefcase who were challenged and on account thereof, they were chased and out of them three were apprehended while one managed to escape. Briefcase was found in the possession of Prem Shankar Poddar for which he prepared seizure list. He had also found one cartridge each from the possession of each of the apprehended accused. In para-7 of his examination-in-chief he had disclosed that the victim had appeared before him who had identified all the three accused as well as the briefcase and the articles. In para- 16 of his cross-examination he had stated that he had seized the briefcase from possession of the accused. 11. 20. Thus, from the evidence of PW-3 as well as PW-13, it is apparent that he had shown accused Prem Shankar Poddar from whose possession the briefcase was seized however the charge stood against all the three petitioners as well as the finding by the successive courts on this very score happens to be in similar fashion. Thus, the infirmities as pointed out relating to inventory cum seizure list, statement of the accused under Section 313 of the Cr.P.C. Coupled with the finding recorded by the learned lower court on this very score which are found to be inconsistent to each other and on that very score the conviction and sentence recorded relating to Section 411 of the IPC is not at all appreciable. 21. Now coming to the main offence. PW-2, Daroga Singh Baghel, ASM of Mahnar Road Station had stated that on 19.10.1980 at about 02:30 A.M. Patna Express Train (78 Down) arrived. Bulb was lighting. At that very time Arun Kumar Agrawal came and disclosed that miscreants, on the point of revolver, took away his briefcase and escaped towards western direction. He inquired from main gate who disclosed that four persons are proceeding towards western direction out of whom one has got a briefcase and then thereafter, he informed the Sahdei as well as Deshri Station. He had also disclosed that both flank of railway line was inundated. He was also informed by the ASM, Sahdei that four persons have passed through platform who had inquired about the train towards Hajipur. They were informed that train will be available at the morning hour, over which they proceeded 12. towards Deshri Station. Then he was informed by Deshri Station Master that three out of four along with a briefcase was apprehended by the Deshri police. During cross-examination at para-7 he had stated that Arun Kumar Agrawal had informed after entering inside his room. At that very time train was at the platform. In para-11 he had also disclosed the fact that it was a moonlit night. In para-12, he had stated that he had not seen the occurrence and whatever he had stated, that happens to be based upon disclosure made by the informant Arun Kumar Agrawal. As stated above, PW-6 Raja Ram, who happens to be A.S.I Deshri had not deposed over apprehension of these three petitioners and on account thereof, was declared hostile. 22. PW-1 is the informant himself he had stated that he had got down from Pasupati Express at Mahnar Station at about 03:30 – 04:00 A.M. He had further detailed the items having been kept in a briefcase having with him which was snatched away by the miscreants on the point of pistol. Then he rushed to Station Master’s room and informed him regarding the occurrence and who, accordingly, informed the Sahdei as well as Deshri Station. He remained there. At about 6-7 A.M. Baghel Saheb had informed him that he has got information from Deshri that criminals have been apprehended along with articles. Thereafter, he had gone to his house and then reached at Deshri Police Station where he found four persons again corrected three persons were apprehended. Again said that out of three only one was at the Police Station whom he identified as Prem Shankar Poddar. 13. Again he disclosed that Shyam Ji Singh and Anil Prasad were also there. He further disclosed that these persons were the culprit including other. He had identified the briefcase, towel, talcum powder and a ticket. He had further disclosed that he had identified one person during T.I. parade. He had further disclosed that he had given his fardbeyan before the Deshri Police Station. During cross-examination at para-6 he had disclosed that from his house he had proceeded to Deshri Police Station from his house along with Paras Nath Agrawal, Suresh Kumar (Younger Brother) at 09:00 A.M. They first of all gone to Station and then they reached at P.S. at 09:30 A.M. In para-8 he had stated that Darogaji had not disclosed names of all the accused persons. He was knowing one of the accused since before the occurrence namely Prem Shankar Poddar whose house lies in his vicinity. He is identifying him since his childhood. At para-9 he had disclosed that articles were shown by the Darogaji at the Police Station and he identified the same. Articles were shown at about 10:00 A.M. He had further stated that he had identified the accused but Darogaji had not disclosed their names. Then, thereafter, he had given his fardbeyan. In para-12 he had stated that it was moonlit night. In para-15 he had stated that when he got down from the train at that very time there was no light. He had further stated that when he reached at Deshri Police Station he found three accused having been apprehended. Darogaji had said that all the three persons were caught along with briefcase. 14. 23. From the evidence available on record, two events are apparent. The first one having three accused under police custody as well as recovery of briefcase containing the items and the another aspect save and except PW-1, the informant, none other PW stated to be an eye witness to occurrence. The prosecution did not produce any evidence over the fact that any of the PW had seen the accused going towards Desari, although PW-2 had disclosed that Gateman had disclosed like so. Further from evidence of PW-2 it is evident that the distance in between Mahnar to Desri is 11 K.M., hence the story of apprehending the accused at 06:00 A.M. The story of apprehension also became doubtful as brother of informant. Arun has not been examined while another seizure list witness gone hostile to prosecution. 24. When the evidence of informant is taken together with Ext.-4, the fardbeyan, it is apparent that some sort of cunningness is found during course of evidence. From the fardbeyan, it is evident that when PW-1 arrived at the Deshri Police Station he found the accused in lock up and who disclosed their identity as Prem Shankar, Shyamji, Anil Prasad while such theme has been withheld during course of evidence. The story of identification become worthless in the background of admission of PW-1, informant that he was knowing the Prem Shankar Poddar since before occurrence when he could not be able to identify him during course of commission of occurrence, at the P.O. itself, in the aforesaid factual position, it is apparent that there 15. was no sufficient light available at the P.O. whereupon informant could have occasion to see the face of all the culprit who were indulged in commission of robbery. In likewise manner, claim of informant that he had identified the culprit while they were under police lock up cannot be accepted as genuine conduct and on account thereof, it looks unsafe to rely upon such kind of suspicious mode of identification. Apart from this, when the evidence of PW-1 is taken together with the evidence of PW-13, it is found that they are not at all pious in their natural conduct. 25. In the aforesaid facts and circumstances of the case, as well as taking into account the infirmities persisting in the prosecution case more over due to non-examination of Investigating Officer as well as Arun, brother of informant, prosecution version is found muddled with so many if and but which are found unexplained and on account thereof, even having presence of petitioners behind lock up, did not give any lifeline to the prosecution case. Hence successive judgments are set aside. Petition is allowed. Petitioners are under custody, hence are directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT Dated the 25th day of Oct., 2013 PRAKASH NARAYAN/A.F.R.