Judgment · High Court · 2012

Hearing halla raised at the house of PW1, Bipul Sharma (PW2) rushed to Gogamukh Police outpost and informed the police orally that a dacoity was takin g place at the house of Kunja Goswami (PW1), whereupon police party, led by A.S. I. Hiranya Chakradhar and S.I. Nirmal Kumar Baruah, proceeded in two different d irections in search of the dacoits. Hiranya Chakradhar (PW7) intercepted accused Abdul Rashid (i.e., the present appellant), on the bank of river Subansiri, wit h some articles, which were being carried by accused-appellant, Abdul Rashid, by commission of dacoity. Another accused Hanif Ali was also arrested by police pa rty. Sub-Inspector, Nirmal Kumar Baruah (PW8) was, at the relevant point of time , In-Charge of the said outpost, who, then, came to the place of occurrence and received there a written Ejahar from PW1 (Kunja Goswami). Treating the said Ejah ar as First Information Report, Dhakuakhana Police Station Case No.155/96, under Section 395 IPC, was registered. Some of the articles, recovered from the prese nt appellant, Abdul Rashid, as described hereinbefore, were identified by PW1 as her properties and these properties were given to her in her zimma. Altogether five accused were arrested by police. A Test Identification Parade (in short, ’T IP’) was held by a Judicial Magistrate and the accused persons were identified b y Kunja Goswami (PW1), Bipul Sharma (PW2) and Jugal Goswami (PW3) at the said TI P.

#3. On completion of investigation, police laid charge-sheet, under Section 395 IPC, against the five accused persons, namely, Gopal Das, Pradip Borah, Bika sh Majumdar, Abdul Rashind (i.e., the present appellant) and Hanif Ali. As three of the accused persons, namely, Gopal Das, Pradip Borah and Bikash Majumdar abs conded, accused Abdul Rashid and Hanif Ali were put to trial.

#4. d. To the charge, so framed, the accused pleaded not guilty. During trial, a charge, under Section 395, was framed against the accuse

#5. In support of their case, prosecution examined altogether 8 (eight) witn esses. The accused were, then, examined under Section 313 Cr.PC and, in their ex aminations aforementioned, the accused denied to have committed the offences, wh ich were alleged to have been committed by them, the case of the defence being t hat of total denial. No evidence was, however, adduced by the defence.

#6. At the end of the trial, while the learned trial Court acquitted accused Hanif Ali of the charge, framed against him, under Section 395 IPC, the present appellant, Abdul Rashid, was found guilty of the offence under Section 395 IPC; he was accordingly convicted and sentence was passed against him as mentioned a bove. Aggrieved by his conviction and the sentence passed against him, this appe al has been preferred by accused Abdul Rashid.

#7. cused-appellant, and Mr. D. Das, learned Addl. Public Prosecutor, Assam. I have heard Mr. A. Alam, learned counsel, appearing on behalf of the ac

#8. ine their evidence. The evidence of PW1 and PW3 being pivotal in nature, let me, first, exam

#9. According to the evidence of PW1, on the night of the occurrence, she wa s sleeping with her children, Jugal (PW3), Orindom and Santanu. A lantern was bu rning inside her house. It is in the evidence of PW1 that she woke up on hearing halla outside her house and 10/11 persons forced their entry into her house by breaking open the door from the backside of the house and, upon entering into th e house, they demanded the key of the almirah from her and, out of fear of her l ife, she handed over the keys to them. It is also in the evidence of PW1 that th e dacoits were armed with dagger, etc, and she was forced to maintain silence. I t is also in the evidence of PW1 that the dacoits took away one set of gold orna ment, two gold earrings and cash of Rs.26,000/- and they also snatched away bang le from her hand, one ring from her finger and a gold chain from her neck and an other two gold chains, one torch light, one Nepaki Khukri, one camera, one lady’ s wrist watch.

#10. Since the evidence of PW1 was recorded on 07.10.2004 and the alleged occ urrence had taken place on 21.06.96, PW1 clearly deposed that as the incident ha d taken place in the year 1996, she had forgotten the details of the articles re moved by the dacoits.

#11. What is important to note, in the evidence of PW1, is that she has claim ed that in the light of the lantern, which was burning inside her house, she saw accused Hanif Ali as well as other accused persons. She identified two of the a ccused in the dock, when her evidence was being recorded. This witness has furth er asserted that a Test Identification Parade was held in the Court campus, wher e she identified the accused persons. Though cross-examined, at length, nothing of significance could be elici 12. ted by the defence to show that what had been deposed to by PW1 was untrue or fa lse. In fact, in her evidence, she claimed that the dacoits had not damaged the lantern and that police arrived at her house soon after the occurrence.

#13. Thus, it becomes evident that PW1 has given a clear version of the facts of dacoity and also the fact that a Test Identification Parade was held and she had identified the accused, because she had seen the accused in the light of th e lantern, which was burning inside her house at the time of the alleged occurre nce.

#14. Though it has been pointed by Mr. Alam, learned counsel for the accused- appellant, that the Investigating Officer has confirmed that in her previous sta tement recorded by police, PW1 had not stated that a lantern was burning inside her house, what is extremely important to note, in this regard, is that while cr oss-examining PW1, the defence never enquired from her if she had stated before the police that a lantern was burning inside her house at the time of the occurr ence nor was it suggested to her that she had not stated in her previous stateme nt, made to the police, that a lantern was kept lit inside her house at the time of the occurrence. Having not put any such question to PW1 and/or having not pu t any suggestion, in this regard, to PW1, the confirmatory evidence, which the d efence has elicited from the Investigating Officer, can be of no avail at all.

#15. Since it is the previous statement of PW1, which is sought to be contrad icted by the defence, it was the duty of the defence to put the contradiction, i f any, to PW1. Had she admitted the omission in her previous statement to the ef fect that she had really not made any statement to the police earlier that a lan tern was burning inside her house at the time of the occurrence, there was no ne ed for the defence to take confirmation of this omission from the Investigating Officer. Consequently, the confirmation from the investigating officer was neede d only if PW1 had denied the defence suggestion, in this regard, by asserting th at she had made the statement before the police, in the past, that at the time o f commission of dacoity, a lantern was burning inside the house.

#16. Thus, when the omission, in question, had not been put to PW1, the confi rmation, elicited by the defence from the investigating officer, was of no legal consequence and cannot, therefore, be attributed any importance at all.

#17. What logically follows from the above discussion that the evidence of PW 1 remained wholly intact and this Court sees no reason to disbelieve her evidenc e. From the evidence of PW1, it has also transpired that she had identified some of the ornaments, which had been taken away by the dacoits. The fact that dacoi ty had taken place at the house of PW1 and that the dacoits identified by her, h ad snatched away the ornaments could not be effectively assailed by the defence.

#18. What emerges from the evidence of PW1 is that her evidence is sufficient to show that a dacoity had taken place as described by her and at the time, whe n dacoity was so committed, a lantern was burning inside her house and, in the l ight of the lantern, PW1 had identified accused-appellant, Abdul Rashid, and tha t she had also identified some of the ornaments, which had been recovered by the police from the possession of the accused-appellant.

#19. Bearing in mind what has been indicated above, let me, now, turn to the evidence of PW3 (Jugal Goswami). This witness, who was, admittedly, aged about 1 2 years, at the time of occurrence, her deposed that on the night of the occurre nce, he was sleeping with his mother and brother, the dacoits came to their hous e raising halla and the dacoits entered into the house by breaking open the doo r. PW3 has also deposed that he got up from the bed, the dacoits demanded the ke y of the almirah from his mother and asked her to hand over money, they forcibly opened the almirah, removed cash, ornaments and other belongings. This witness has also deposed that the dacoits snatched away ornaments from the hands and nec k of his mother and as there was halla outside the house, the dacoits fled away with the articles, which they had taken from the house of this witness. It is i n the evidence of PW3 that the dacoits had switched off the lights of his house, but a lantern was burning inside the house and the dacoits also flashed the tor ch lights inside the house and he saw the faces of the dacoits. It is also in th e evidence of PW3 that the dacoits put dao over his neck and asked him not to cr y or shout for help. This witness identified the accused standing in the dock at the time of recording his evidence and it is in his evidence that some of the a rticles, removed by the dacoits, were recovered by the police.

#20. In his cross-examination also, this witness has asserted that a lantern was burning inside his house at the time of the occurrence and, in the light of the lantern, he saw the accused persons and could identify them. Even while cros s-examining PW3, nothing significant could be elicited by the defence, which can be taken to have shaken the credibility of the evidence given by PW3. The mater ial aspects of the evidence of PW3 have, therefore, remained unshaken and there is no reason for this Court to disbelieve his evidence or the evidence of his mo ther (PW1), which I have already discussed above.

#21. Turning to the evidence of PW2 (Bipul Sharma), it may be noted that acco rding to his evidence, at the time of the occurrence, he used to reside in the r ented house of PW1, located in the same courtyard, wherein was also located the house of PW1, and at mid-night, he heard somebody beating at the walls of his ho use. While he tried to came out of his house by opening the door, the dacoits as ked him not to come out and, hence, he remained inside the house and, then, he h eard the sound of breaking the door of PW1. It is in the evidence of PW2 that he made some sound by striking at the C.I. sheet roofing of the house and, on hear ing the sound, the neighbourer started assembling. It is also in the evidence of PW2 that the dacoits locked him from outside and it was unlocked by one person and, then, he came to the house of PW1 and came to know that dacoity was committ ed at the house of PW1. The evidence of PW2, thus, supports the fact that a daco ity did take place at the house of PW1 and PW3.

#22. So far as PW4 is concerned, his evidence shows that he, too, used to res ide, at the house of PW1, for prosecuting his studies at College and his evidenc e is that at the time of occurrence, the dacoits started beating the door of PW1 and as he heard halla , he woke up and wanted to come out of his house, but fou nd somebody pushing a dao through the door pointing at him, whereupon he raised alarm and started striking at the roof of the house with a lathi and this attrac ted the attention of the neighbouring people and after about 20 minutes, he coul d come out of his house, he found two dacoits in the courtyard, who started chas ing him, whereupon he ran towards the backside of the house and went to Gogamukh Outpost and informed the police and along with police, he came back to the plac e of occurrence. It is in the evidence of PW4 that police followed the dacoits a nd he also accompanied police upto Sunapur Railway line and by the side of the r oad there, they found the dacoit, who, suddenly, jumped into the deep water and only one dacoit could be arrested by the police and he was identified as Abdul R ashid. This witness has identified, at the T.I.P, all the five dacoits, who stan d charge-sheeted. This witness (PW4) identified the accused, Abdul Rashid, at th e trial too. There is nothing in the cross-examination of PW4 to render his evid ence unbelievable. His evidence, therefore, clearly shows that the present appel lant was caught with some of the articles, which had been obtained by commission of dacoity at the house of PW1 and were recovered by police inasmuch as these a rticles were, later on, identified by PW1.

#23. As far as PW5 and PW6 are concerned, they are merely seizure witnesses.

#24. Coming to the evidence of PW8, who was in-Charge of Gogamukh Police Stat ion at the relevant point of time, I notice that according to his evidence, PW2 lodged oral information, at the police outpost, regarding the incident of dacoit y at the house of PW1, whereupon he made G.D. Entry No.364, dated 21.06.96, and started investigation. It is in the evidence of PW8 that he, along with his othe r police staff, proceeded in one direction and he sent ASI Hiranya Chakradhar (P W7) in another direction and when he came to know that dacoits had started runni ng towards Railway line, he too proceeded in that direction and, on the way, one torch light, two ten Rupees note, one five rupees note were found and he seized the same by a seizure list, which is Ext.4. PW8, then, came to the place of occ urrence and received the FIR from PW1 and a case was accordingly registered. It is also in the evidence of PW8 that by the time he received the FIR, accused Abd ul Rashid had already been arrested by PW7 along with the articles removed by th e dacoits from the house of PW1 and that by this time, accused Hanif Ali was als o arrested and he came to know that accused Gopal Das, Pradip Borah and Bikash M ajumdar had been detained by the police of North Lakhimpur Police Station, where upon he brought them to Gogamukh Police outpost and, on his request, a TIP was h eld.

#25. Broadly in tune with the evidence of PW8, PW7 has deposed that after the oral information received from Bipul Sharma (PW2), a G.D. Entry was made and he proceeded to arrest the dacoits. It is in the evidence of PW7 that instead of g oing to the place of occurrence, he, along with his staff, proceeded towards Sub ansiri bridge and while he was coming towards Gogamukh from the Railway line, he found the dacoits near the Social Forest area, but except accused Abdul Rashid, the other accused fled away. Abdul Rashid was arrested and he found some clothe s, gold ornaments, cash amount and torch light along with a dagger and seized th e said articles by a seizure list, which is Ext.3. In his cross-examination, PW7 has clearly stated that the chain and cash belonged to Bipul Goswami, husband o f the informant, and they identified those ornaments and that while the other ac cused had jumped into water near the Railway line and made good their escape, ac cused Abdul Rashid was actually hiding in the bushes and he was apprehended. From the evidence that I have discussed above, it becomes clear that so 26. far as PW1 and PW2 are concerned, they have given clear and consistent descripti ons of the version of dacoity, which had taken place at their house and the fact that a lantern was burning inside the house and, in the light of the lantern, t hey could see the dacoits. In such circumstances, identification of the present appellant by these witnesses cannot, in the absence of anything showing to the c ontrary, be disbelieved. This apart, the present accused was caught with some of the articles, which the dacoits had taken away from the house of PW1, the artic les having been identified by PW1.

#27. Because of the evidence, which have been discussed above, I do not find that the learned trial Court committed any error in coming to the conclusion, wh ich it has reached, that the prosecution has proved beyond all reasonable doubt that more than five persons had co-jointly committed robbery in the house of PW1 and removed cash from her house, the accused were armed with deadly weapons and they committed thereby robbery putting the inmates of house into fear of their lives and committed thereby the offence of dacoity punishable under Section 395 IPC.

#28. Considering the fact that accused Abdul Rashid was clearly identified as the person caught with the ornaments and other articles, which had been taken f rom the house of PW1 by commission of dacoity, the learned trial Court held that the accused-appellant had been proved guilty, beyond all reasonable doubt, of h aving committed the offence under Section 395 IPC. This Court does not find that the conclusion, so reached, suffers from any infirmity, legal or factual.

#29. Thus, the conviction of the accused-appellant does not call for any inte rference. Even the sentence, in the facts and attending circumstances of the pre sent case, cannot be said to be harsh, excessive or unreasonable. The sentence t oo, therefore, calls for no interference.

#30. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed.

#31. ety is hereby discharged. The bail bonds of the accused-appellant are hereby cancelled and his sur

#32. The accused-appellant is hereby directed to surrender, forthwith, in the learned trial Court, in order to serve out the sentence of imprisonment passed against him.

#33. Send back the LCR.