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2000 DIGILAW 532 (PAT)

Anirudh Singh v. State Of Bihar

2000-04-04

M.L.VISA, R.N.PRASAD

body2000
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 26-5-1987 passed by 4th Additional Sessions Judge, Bhagalpur, in Sessions Case No. 107 of 1981/101 of 1985 convicting and sentencing both the appellants to undergo imprisonment for life under Sec. 396 of the Indian Penal Code. 2. The case of the prosecution, in brief, is that on that night between 21st and 22nd of April, 1974, the informant Yadu Nandan Singh (PW 6) was sleeping in the house of his neighbour Jai Karan Singh (not examined). At about 12.300 clock when he was not in complete sleep he saw about 10-12 dacoits coming from north side flashing their torches and going to darwaja of his house. Amongst dacoits, he identified appellant Anirudh Singh armed with jarsa, appellant Sushil Singh armed with bhala and coaccused Lakshman Ram armed with a gun when the dacoits reached his darwaja. Other dacoits who could not be identified by him were armed with, pistols, swords, lathis etc. At that time his two sons Nand Kishore Singh (PW5) and Pancha Nand Singh (since deceased) along with his grandson Umesh Singh (PW3) were sleeping on the darwaja of his house. The dacoits inquired from his sons about his whereabouts and when his sons knew that they were dacoits, they started running away from the place, One of the dacoits fired from his fire arm hitting on the back of the deceased Pancha Nand Singh who even after receiving injury managed to run up to the house of Phul Babu alias Triyogi Narayan Singh. (PW2) and fell down at his darwaja and died. Nand Kishore Singh (PW5) went running to the informant. The dacoits tied Umesh Singh (PW3) with ropes and thereafter they entered the house of informant and took away clothes, ornaments, utensils, cash etc. worth about Rs. 41,000.00 and thereafter, they left the place after firing two rounds. When the informant came near his son Pancha Nand Singh he found him lying dead. On the morning of 22-4-1974 the fardbeyan of informant (Ext. 1) was recorded by ASI Suresh Prasad Singh (PW7) at Full Dumar out post and a case under Sec. 396, IPC was registered. 41,000.00 and thereafter, they left the place after firing two rounds. When the informant came near his son Pancha Nand Singh he found him lying dead. On the morning of 22-4-1974 the fardbeyan of informant (Ext. 1) was recorded by ASI Suresh Prasad Singh (PW7) at Full Dumar out post and a case under Sec. 396, IPC was registered. ASI Suresh Prasad Singh (PW7) took up investigation of the case and on 22-4-1974 he reached the place of occurrence at about 10 Oclock, inspected the place of occurrence, found the dead body of Pancha Nand Singh lying at a distance of 65 yards from the house of informant, prepared inquest report (Ext. 2), seized fired cartridges of rifle from the place of occurrence prepared seizure list, collected blood - stained soil from the place of occurrence, found articles of three rooms of the informant scattered here and there, recorded statements of witnesses and on 23-4-1974 handed over the charge of investigation to officer-in-charge, Belhar. 3. Charge - sheet under Sec. 396, IPC was submitted against both the appellants and co-accused Lakshman Ram showing him as absconder. The case was committed to the Court of Sessions where charge under Sec. 396, IPC was framed against both the appellants. The appellants denied the charge and their case as appears from the trend of cross - examination of prosecution witnesses is that they have been falsely implicated in this case on account of enmity. After the trial, both the appellants were found guilty and have been convicted and sentenced as indicated above. 4. Altogether 8 witnesses have been examined on behalf of the prosecution. Yadu Nandan Singh (PW 6) the informant and Nand Kishore Singh (PW5), son of informant, are the eyewitnesses to the occurrence who had identified the appellants amongst dacoits. Suresh Pd. Singh (PW 7) is the I.O.Sheo Kumar Dutta (PW 8) is an Advocate who has proved post - mortem examination report (Ext. 4) of deceased Panchanand Singh in the pen of Dr. N. K. Ghose. Balbhadra Narayan Singh (PW 1) is the hearsay witness who had heard about the dacotis and their names from the informant. Triyogi Narayan Singh (PW2) is a witness up to whose house the deceased after receiving injury on his back by fire arm at the hands of dacoits had run and had fallen in his portico where he died in his presence. Triyogi Narayan Singh (PW2) is a witness up to whose house the deceased after receiving injury on his back by fire arm at the hands of dacoits had run and had fallen in his portico where he died in his presence. He was also told the names of dacoits taking part in the dacoity by the informant and his family members. He by relation is grandson of, informant. Umesh Singh (PW3) is another grandson of informant who at the time of dacoity was sleeping at the darwaja of the house of informant and the dacoits had tied his hands by ropes. He could not identify any dacoit and was told by the informant that the appellants were amongst the dacoits. Lalan Kumar Singh (PW4) is a witness whose father is brother-in-law (sala) of Yugal Kishore Singh, son of informant and at the time of occurrence he was sleeping on the roof of the house of informant and has witnessed the commission of dacoity and was also assaulted with lathis by dacoits, but he could not identify the dacoits and was told the names of appellants by informant amongst the dacoits. 5. The Court below formulated three questions for consideration, that is, whether dacoity had been committed in the house of informant, whether murder of Panch a Nand Singh, sons of informant, had been committed by someone of the dacoits in course of committing dacoity and whether the appellants had taken part in the commission of said dacoity and after considering the evidence on record answered all the questions in affirmative. Learned counsel appearing on behalf of the appellants has not disputed the findings of the Court below on the first two points. We also in conformity with the Court below on these points finds from the evidence of prosecution witnesses including the evidence of Suresh Prasad Singh (PW 7), the I.O., who on the next day of occurrence found dead body of Pancha Nand Singh lying near the place of occurrence, seized an empty cartridge of rifle, seized blood stained soil from the place of occurrence and found the articles of the rooms of the house of informant scattered and besides the post - mortem examination report (Ext. 4) of deceased Pancha Nand Singh, that prosecution has proved the dacoity as alleged and in commission of dacoity the murder of Pancha Nand Singh, son of informant. 4) of deceased Pancha Nand Singh, that prosecution has proved the dacoity as alleged and in commission of dacoity the murder of Pancha Nand Singh, son of informant. It is the last point which is about participation of appellants in the commission of dacoity which falls under consideration in the present appeal because learned counsel appearing on behalf of the appellants has assailed the judgment of the Court below on this point. As stated above, on this point only, informant (PW 6) and his son Nand Kishore Singh (PW 5), in their evidence have stated that they identified the appellants amongst the dacoits. Yadu Nandan Singh (PW 6), in his evidence, has stated that at the time of occurrence he was sleeping in the courtyard of his neighbour Jai Karan Singh and from there he in the light of his torch identified the appellants amongst the dacoits when all the dacoits including the appellants had reached the darwaja of his house. His son Nand Kishore Singh (PW 5) in his evidence has stated that courtyard of Jai Karan Singh is inside the house of Jai Karan Singh. Suresh Pd. Singh (PW 7), the I.O., in his evidence, has stated that the house of Jai Karan Singh is situated at a distance of 18 yards from the house of informant. The informant in his evidence has also stated that at that time there was no electricity in his village. The occurrence is said to have taken place in the night at about 12.30 Oclock. Now the question arises, could the informant have identified the appellants from a courtyard inside a house situate more than 54 in the light of his torch in the dead night? To us it does not appear possible. We say so because not only identifying both the appellants amongst dacoits the informant in his evidence has stated that the youngest amongst the dacoits was aged about 25 years meaning thereby that he in the light of his torch not only saw each and every dacoit but assessed their ages also. Apart from this, he has also stated that dacoits fired at his son Pancha Nand Singh who after receiving\injury ran up to the house of Triyogi Narayan Singh (PW2) where he fell down and died and the dacoits entered his house and took away the articles and they in his angan assaulted his relation Lalan Kr. Apart from this, he has also stated that dacoits fired at his son Pancha Nand Singh who after receiving\injury ran up to the house of Triyogi Narayan Singh (PW2) where he fell down and died and the dacoits entered his house and took away the articles and they in his angan assaulted his relation Lalan Kr. Singh (PW 4) with Lathi and thereafter, they fled away after firing two rounds in the air and thereafter, he went near his son. In the fardbeyan the informant has stated that when the dacoits reached his darwaja they enquired from his sons for his whereabouts. This also does not seem probable because when the dacoits as alleged were enquiring from his sons for his whereabouts, at that time admittedly this witness was in the angan of the house of his neighbour Jai Karan Singh. In the fardbeyan, the informant has clearly stated that both the appellants and co-accused Lakshman Ram were having galmochha (a piece of cloth wrapped round the fact in order to hide it). In his evidence the informant is silent on the point whether the dacoit had covered their faces or not. His son Nand Kishore Singh (PW 5) has clearly stated that the dacoits had not covered their faces. The informant, in his evidence, has admitted that he was fighting a case with both the appellants from before the occurrence and the case is still going on. Nand Kishore Singh (PW 5) has also admitted this fact and he has given the nature of this litigation, which according to him, is due to irrigation of field of informant and appellants. Balbhadra Narayan Singh (PW1), in his evidence, has stated that he is nephew of informant, having his house near the house of informant and both the appellants are residents of his village having their houses in adjoining tola, Considering all these facts if we take into account the statements of informant made in the fardbeyan that the appellants had covered their faces then the evidence of informant that he identified both the appellants becomes untrue. If we consider the evidence of Nand Kishore Singh (PW 5) that the dacoits including the appellants had not covered their faces then a doubt arises in accepting this part of evidence because it does not seem probable that the appellants who were well known to the informant and his family members and are residents of the same village will not take any precaution to conceal their identity while going to commit dacoity in the house of informant particularly when they had enmity with him. It is true that there is no hard and fast rule that a known person would not go to commit dacoity without taking precaution of concealing his face and a hardened and desperate criminals can do so without taking such precaution but then there is no evidence that the appellants are hardened criminals. On the other hand, there is evidence of prosecution witnesses that they are residents of same village having their lands adjacent to the lands of informant. A suggestion by defence to Nand Kishore Singh (PW 5) was given whether he had stated in his earlier statements that he had identified the appellants to, which he answered in affirmative. On the point of identification of appellants at the time of occurrence the evidence of Nand Kishore Singh (PW 5) is that he identified the appellants in the light of torch which the dacoits were flashing. It also does not seem probable because it is not expected that the dacoits would be throwing light on the face of each other. It is true that enmity cuts both the ways but then the contradictory evidence of PW 5 and PW 6 who are the only eye-witnesses claiming to have identified the appellants amongst the dacoits and their evidence on the point of identification of appellants being highly improbable lean towards the other way, of course of the two, suggesting the possibility of false implication of appellants. In this view of the matter, we do not find it safe the rely on such type of evidence adduced on behalf of prosecution to hold the appellants guilty in this case and to sustain the judgment and order of the Court below. 6. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants are hereby set aside and the appellants are acquitted. 6. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants are hereby set aside and the appellants are acquitted. As the appellants are on bail, they are discharged from the liability of their bail bonds. R.N.Prasad, J. 7 I agree.