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Patna High Court · body

2000 DIGILAW 158 (PAT)

Rampujan Thakur v. State Of Bihar

2000-01-28

M.L.VISA

body2000
Judgment M.L.Visa, J. 1. All the three appeals have been heard together and are being disposed of by this common judgment as all these appeals arise out of judgment and order dated 18.7.1989 passed by 1st Additional Sessions Judge, Bhqjpur, Arrah in Sessions Trial Nos. 129/83 and 225/85, convicting and sentencing all the appellants to undergo RI for seven years each under Section 395 of the Indian Penal Code. Appellant Ashok Dome has further been convicted and sentenced to undergo RI for five years and appellant Uma Thathera to undergo RI for two year under Section 412 of the Indian Penal Code. Both the sentences passed against these appellants have, however, been ordered to run concurrently. 2. The case of the prosecution, in short, is that on 20.10.1981 at about 10 p.m. the informant Kali Prasad Sah (PW 1) after taking meal was sitting in his cloth shop along with his granddaughter when about 8-10 dacoits entered his shop and started assaulting him with an iron rod and they also started taking cloths from the shop. Some of the dacoits entered in the angan of his house and from there they started lifting the articles. When the informant tried to run away one of the dacoits pointed out a single barrel gun at him and asked him to remain quite otherwise he would be killed. Thereafter he fired from his gun causing injuries to him as well as to his granddaughter. The dacoits for about 45 minutes were engaged in committing dacoity and they took away the articles from his shop as well as from his house. After dacoity his son Kashi Prasad Sah (PW 4) and his daughter in-law (not examined) came out from the house and informed him that dacoits had taken away articles, utensils, cloths etc. from the house. At the time of dacoity a lantern was lit in the shop of the informant and dacoits were also flashing torch light, in the light of which the informant saw the dacoits who were young except two and were of general built and 2-3 dacoits had covered their faces. Most of the dacoits appeared to be belonging to Dome community. The informant on 21.10.1981 in the morning went to Police Station and lodged FIR (Ext. 1) narrating the aforesaid incident of dacoity giving details of the articles worth about Rs. 15,000/- taken away by the dacoits. Most of the dacoits appeared to be belonging to Dome community. The informant on 21.10.1981 in the morning went to Police Station and lodged FIR (Ext. 1) narrating the aforesaid incident of dacoity giving details of the articles worth about Rs. 15,000/- taken away by the dacoits. The Police registered a case under Section 395 of the Indian Penal Code against unknown. During the course of investigation, appellants Ashok Dome and Uma Thathera were put on T.I. parade and they were identified by the informant. Some stolen articles were also recovered from their houses which were put on T.I. parade and were identified by the informant and his son. After investigation charge-sheet was submitted and all the four appellants along with three others, namely, Bishwamitra Singh, Narad Singh and Amira Dome were put on trial. 3. The case of the appellants before the Court below was that they have been falsely implicated in the case owing to enmity. After the trial co-accused persons, namely, Bishwamitra Singh, Narad Singh and Amira Dome were acquitted after giving them benefit of doubt but so far as appellants are concerned they were found guilty and they all were convicted and sentenced to undergo RI for 7 years each under Section 395 of the Indian Penal Code. Appellants Ashok Dome and Uma Thathera were convicted and sentenced to undergo RI for 5 years each under Section 412 of the Indian Penal Code. 4. Altogether 7 witnesses have been examined on behalf of the prosecution. Kali Prasad Sah (PW 1) is the informant of this case. Kashi Nath Sah (PW 4) is the son of informant. Bhajuman Sah (PW 2) and Nirmal Kumar Pandey (PW 3) are the witnesses who had reached the place of occurrence immediately after the dacoity and were told about the occurrence by PW 4. Bramhanand Singh (PW 5) is the I.O. of the case. Chandrason Choubey (PW 6) is the Judicial Magistrate, who had conducted the T.I. parade of the suspects and Pusp Narain Singh (PW 7) is the BDO who had conducted T.I. parade of articles said to have been recovered from the houses of appellants Ashok Dome and Uma Thathera. 5. Appellants Rampujan Thakur and Deopujan Thakur are not named in the FIR. Kali Prasad Sah (PW 1), the informant, in his evidence has not stated that he had identified these dacoits at the time of commission of dacoity. 5. Appellants Rampujan Thakur and Deopujan Thakur are not named in the FIR. Kali Prasad Sah (PW 1), the informant, in his evidence has not stated that he had identified these dacoits at the time of commission of dacoity. It is only the evidence of Kashi Prasad Sah, son of the informant in which the names of these two appellants have figured. He has said that he had identified both these appellants at the time of dacoity. Bhajuman Sah (PW 2) and Nirmal Kumar Pandey (PW 3), the witnesses who are said to have reached the place of occurrence, in their evidence have stated that after hearing the sound of firing they went to the place of occurrence and found the informant and his grand- daughter injured and they met Kashi Prasad Sah (PW 4), son of the informant, who told them the names of appellants Deopujan Thakur and Rampujan Thakur amongst the dacoits. 6. The informant in the FIR has clearly stated that after the dacoits left the place he was told by his son Kashi Nath Sah (PW 4) and his daughter-in-law that dacoits had taken away ornaments, utensils, cloths etc. from the house. If Kashi Nath Sah (PW 4), who is none else but the son of informant had identified appellants Deopujan Thakur and Rampujan Thakur and after dacoity he gave the details of articles which the dacoits had taken away from his house to his father and he told the names of these two appellants to PW 2 and PW 3, how is that he did not disclose the names of these appellants to the informant. In his evidence PW 4 has stated that after the dacoity he had gone to see his father and his daughte who had received injuries but he did not have any talk with his lather. "He has even denied of having any talk with his wife after dacoity. The informant also in his evidence has stated that after dacoity his son did not meet him therefore he could not know the name of dacoits before proceeding to Police Station. This evidence cannot be believed in view of the specific statement of the informant in the FIR that he was given the details of articles taken away in the dacoity by his son. This evidence cannot be believed in view of the specific statement of the informant in the FIR that he was given the details of articles taken away in the dacoity by his son. When the son of informant could have told the names of appellants Rampujan Thakur and Deopujan Thakur to witnesses PW 2 and PW 3, who had reached the place of occurrence after dacoity there does not seem any reason for not disclosing the names of these appellants to his father. As stated earlier, the FIR which was lodged on the next day in the morning at the Police Station by the informant is silent about the names of these two appellants. It appears that their names have figured subsequently in the statements of PW 4. Under such circumstances, this piece of evidence of prosecution is quite doubtful. 7. About appellants Uma Thathera and Ashok Dome it is stated that appellant Ashok Dome was identified by the informant whereas appellant Umesh Thathera was identified by Kashi Nath San (PW 4), Chandrason Choubey (PW 6), the Judicial Magistrate, in his evidence has stated that he conducted T.I. parade in proper manner following the rules and in T.I. parade informant identified appellant Ashok Dome and his son Kashi Nath Sah (PW 4) identified appellant Uma Thathera. He has proved the T.I. Chart (Ext. 7 and 7/1). Kali Prasad Sah (PW 1), the informant, in his evidence has stated that he attended the T.I. parade and identified appellant Ashok Dome to whom he had identified in Court also. Similarly, Kashi Nath Sah (PW 4) in his evidence has stated that he identified appellant Uma Thathera in T.I. parade. He identified this appellant in Court as well. So I find that so far the case of prosecution in respect of appellants Uma Thathera and Ashok Dome on the point of their participation in the dacoity is concerned, the prosecution has proved its case against them. 8. Appellant Ashok Dome and Uma Thathera have also been convicted under Section 412 of the Indian Penal Code. According to the case of the prosecution, during the course of investigation a lota was recovered from the house of appellant Uma Thathera which was put on T.I. parade and which was identified by the informant and his son. 8. Appellant Ashok Dome and Uma Thathera have also been convicted under Section 412 of the Indian Penal Code. According to the case of the prosecution, during the course of investigation a lota was recovered from the house of appellant Uma Thathera which was put on T.I. parade and which was identified by the informant and his son. Bramhanand Singh (PW 5), the I.O. in his evidence has stated that from the house of appellant Uma Thathera one lota was recovered which was seized by him in presence of the witnesses. He has proved the seizure list (Ext. 5/3). Pusp Narain Singh (PW 7) in his evidence has stated that at the relevant time he was posted as BDO at Bramhpur Block and on 18.11.1981: the Iota seized from the house of appellant Uma Thathera was put on T.I. parade which was identified by informant and his son. He has proved the T.I. Chart (Ext. 7). So I find that on the point of recovery of a lota which was taken away in dacoity, the prosecution has proved that it was recovered from the house of appellant Uma Thathera. So far the question of articles said to have been recovered from the possession of appellant Ashok Dome is concerned, I find that Bramhanand Singh (PW 5), the I.O. in his evidence has stated that on 2.10.1981 he searched the house of appellant Ashok Dome and recovered a number of looted articles from the house and prepared seizure list (Ext. 5). The case of the prosecution is that these articles were put on T.I. parade conducted by PW 7 and were identified by PWs 1 and 2. The seizure list (Ext. 5) said to have been prepared after recovery of looted articles from the house of appellant Ashok Dome shows that articles were recovered from the house which was in joint possession of appellant Ashok Dome and one Lala Dome. It has been submitted on behalf of appellant Ashok Dome that in view of the aforesaid fact it cannot be said that the recovery of articles was from the exclusive and conscious possession of this appellant. This point was raised before the Court below but the Court below did not accept it by observing that Ashok Dome and Lala Dome both are full brothers living in the same house. 9. This point was raised before the Court below but the Court below did not accept it by observing that Ashok Dome and Lala Dome both are full brothers living in the same house. 9. In this case charge-sheet was submitted against Lala Dome also showing him as absconder. When articles are said to have been recovered from a house which was not in exclusive possession of appellant Ashok Dome but it was in occupation of Lala Dome also who has also been made an accused in this case, it becomes quite doubtful that in fact who amongst two persons was in conscious possession, of articles. In such circumstances, when the articles were recovered from a house which was in joint possession of appellant Ashok Dome as well as of co-accused Lala Dome, the case of prosecution on the point of recovery of articles from the conscious possession of appellant Ashok Dome becomes doubtful and he, therefore, is entitled to benefit of doubt. 10. I therefore, find that charge under Section 412, IPC against appellant Ashok Dome is not proved beyond all reasonable doubts but so far charge under Section 395, IPC against him is concerned, it has been proved by the prosecution. 11. In the result, Cr. Appeal No. 272 of 1989 is allowed and appellants of this appeal, namely, Rampujan Thakur and Deopujan Thakur are acquitted and the order of the Court below convicting and sentencing them is set aside. These appellants, who are on bail, are discharged from the liability of their bail bonds. 12. Criminal Appeal No. 298 of 1989 and 311 of 1989 are dismissed with modification in Cr. Appeal No. 311 of 1989 as indicated above. The order of conviction and sentence against the appellant Uma Thathera under Section 395/412, IPC and conviction and sentence of appellant Ashok Dome under Section 395, IPC is hereby confirmed. The bail bonds of these two appellants, who are on bail, are cancelled. The Court below is directed to take steps for their remand to jail custody for serving out the sentences passed against them.