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2000 DIGILAW 849 (PAT)

Mahesh Choudhary v. State Of Bihar

2000-07-07

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. This appeal has been preferred against the judgment and order of conviction dated 28.8.1939 passed by the 2nd Assistant Sessions Judge, Gopalganj in Sessions Trial No. 11/89 convicting appellant No. 1 Mahesh Choudhary under Sections 395 and 412, IPC and sentenced him to undergo RI for seven years and five years respectively. The sentences were to run concurrently, appellant No. 2 Jiut Choudhary has been convicted under Section 395, IPC and sentenced to undergo RI for seven years. 2. The brief fact of the case is that the informant Nagina Choudhary (PW 1) lodged fardbeyan against unknown alleging therein that in the night intervening between 13/14th of March, 1988 while he was sleeping on a cot in his house about 15 to 20 dacoits entered the house. They started looting valuables and on protest by the informant and family members, the dacoits assaulted the informant, his brother Sita Ram Pathak (PW 5) and his wife Sukhiya Devi (PW 4). They snatched ornaments from the possession of female members. The informant and some of the family members claimed to have identified some of the dacoits, who had not covered their faces. The informant stated that the properties worth Rs. 4,000/- were looted by the dacoits. The dacoits had also fired, guns causing injuries to some persons. After some time of the dacoity, the police party arrived at the place of occurrence which was on patrolling duty and having heard the sound of fire it reached the house of the informant. The fardbeyan of the informant (Ext. 2) was recorded and on its basis formal FIR (Ext. 3) was drawn up. The main investigation of the case was conducted by Sub-Inspector Awadhesh Singh (PW 9), who had recorded the fardbeyan and the statement of most of the witnesses, but in the meantime, he was transferred. PW 4 Prithwi Nath Tiwary. Sub-Inspector of Police completed the investigation and submitted charge-sheet. 3. During the course of investigation of the case, some of the suspected looted articles such as silver and golden ornaments and clothes were recovered from the house of appellant Mahesh Choudhary on 15.3.1988. PW 4 Prithwi Nath Tiwary. Sub-Inspector of Police completed the investigation and submitted charge-sheet. 3. During the course of investigation of the case, some of the suspected looted articles such as silver and golden ornaments and clothes were recovered from the house of appellant Mahesh Choudhary on 15.3.1988. These articles were put on T.I.P. which was conducted by Circle Officer Sahdeo Ram (PW 7) and identified by female members of the informants family including Jiuti Devi (PW 3) who is daughter of the informant, Sukhia Devi (PW 4) wife of the informant and Panmati Devi (PW 2) wife of younger brother of the informant. The accused Mahesh Choudhary and Jiut Choudhary were arrested on 18.3.1988 and they were put on T.I.P. and they were identified by as many as four witnesses. During the course of investigation another accused, namely, Deomuni Yadav was also arrested but no suspected article was recovered from his possession. He was also put on T.I.P. which was conducted by Raj Kishore Choubey, Judicial Magistrate (PW 6) and he was identified by the informant and his brother Sita Ram Pathak (PW 5). However, the trial Court did not find sufficient evidence against him and accordingly he was acquitted. 4. The prosecution examined as many as nine witnesses in support of its case. PW 1 Nagina Choudhary is the informant. PW 2 Panmati Devi is wife of younger brother of the informant, PW 3 Jiuti Devi is the daughter of the informant, PW 4 Sukhiya Devi is the wife of the informant, PW 5 Sita am Pathak is the brother of the informant. As stated above, PW 6 is Judicial Magistrate who conducted the T.I.P. of the suspects and PW 7 is Circle Officer, who held T.I.P. of the recovered articles. PWs 8 and 9 are police officials who made investigation in this case. On the basis of the evidence adduced on behalf of the prosecution, the trial Court has come to the finding that the dacoity took place in the house of the informant in between the night of 13/14th March, 1988 and valuables were looted. The trial Court has further held that in course of dacoity some of the inmates including the informant were injured and were treated in the hospital. The trial Court has further held that in course of dacoity some of the inmates including the informant were injured and were treated in the hospital. The Court below has further come to the finding that there is reliable and cogent evidence on the point of identification of appellants No. 1 and 2 as dacoits. The trial Court has also held that the recovered articles from the house of appellant No. 1 were identified by the family members of the informant being their articles looted by the dacoits. The Court below has also held that the witnesses of the T.I.P. including PWs 1, 2, 3 and 4 have categorically stated the roles played by appellants No. 1 and 2 in course of dacoity and on these findings came to the conclusion that the prosecution has been able to substantiate the charge levelled against both the appellants beyond all reasonable doubt and convicted them as indicated above. 5. Learned lawyer for the appellants submitted that he does not dispute the factum of dacoity but the main defence of the appellants is that they have been falsely implicated in this case because of previous enmity and they have not committed dacoity in the house of the informant nor any article was recovered from their possession. 6. Another point that has been raised on behalf of the appellants is that the identification of the accused in the T.I. Parade was made at a belated stage. The accused were arrested on 18.3.1988 and the T.I. Parade was held on 7.4.1988. i.e. after 18 days. There is no explanation for this delay. PW 6 who was the Judicial Officer conducted the T.I. Parade of the accused appellants. In paragraph 3 of his cross-examination he stated that none of the witnesses who identified the accused stated about the means of identification. He has not stated that he mixed up the suspects along with other persons of similar description as required under the T.I.P. Rules. This fact is also not mentioned in the T.I. Chart (Ext. I). 7. Learned appellants lawyer submitted that from the evidence of the informant (PW 1) and his family members, PWs 2, 3 and 4, it is clear that at the time of dacoity, the dacoits had covered their faces and as such it was not possible to see their faces at the time of commission of dacoity. I). 7. Learned appellants lawyer submitted that from the evidence of the informant (PW 1) and his family members, PWs 2, 3 and 4, it is clear that at the time of dacoity, the dacoits had covered their faces and as such it was not possible to see their faces at the time of commission of dacoity. If the informant and his family members had seen the faces of the accused persons they must have stated this fact in the fardbeyan because both the accused appeilants are of the neighbouring village and were known to the informant from before. This shows that the informant or his family members had not identified any of the appellants by faces at the time of commission of dacoity, but subsequently, at the instance of police they have identified them. 8. In reply to the above submission, learned APP submitted that from the evidence of PWs 1 to 4, it is clear that all of them had seen both the appellants at the time of dacoity by their faces. They have categorically stated that these two dacoits and some others were not covering the r faces. Out of about 20 dacoits some of them had covered their faces. In the fardbeyan. the informant has claimed to have identified some of the dacoits by their faces. There is no evidence on record to show that the informant or his family members knew the appellants by their faces from before. On the other hand, the witnesses have denied this suggestion of the defence that they had occasion to see these appellants on several dates prior to the occurrence because they are of the neighbouring village. 9. Learned APP further submitted that there is no abnormal delay in holding the T.I. Parade of the accused persons. Only after 18 days they were put up on T.I. Parade. The defence has failed to show that any prejudice has been caused to them because of the delay in holding the T.I. Paraded There is no evidence on the record to show that the I.O. had got these two appellants seen by the informant and his family members before the T.I. Parade was held. Learned APP submitted that the Judicial Magistrate. PW 6 in his examination-in-chief has not stated that he mixed up the suspects with other persons of similar description. This was only an omission on his part. Learned APP submitted that the Judicial Magistrate. PW 6 in his examination-in-chief has not stated that he mixed up the suspects with other persons of similar description. This was only an omission on his part. In the cross- examination on behalf of accused Deomuni Yadav, this question was asked to the Judicial Magistrate whether he had mixed the suspects with other persons and his reply was in affirmative. He stated that he had mixed the accused appellants with 20 other persons of similar description. The Magistrate has also stated that he had followed the rules as prescribed for holding the T.I. Parade. Learned APP further submitted that the witnesses who had identified the suspects have further attributed their role played at the time of commission of dacoity. This fact is mentioned in the T.I. Chart. Ext. I and also in the evidence of the Judicial Magistrate, PW 6. Learned APP submitted that the PWs who identified both these appellants have stated that they had seen appellant No. 2, Jiut Choudhary assaulting the family members and also snatching ornaments. They further stated that Mahesh Choudhary was snatching ornaments and was taking away a box from the room. Therefore, they have described in detail the role played by these two appellants in the commission of dacoity. 10. I have carefully scrutinised the evidence of the PWs on the point of identification of the appellants. PW 1 has stated that as soon as the dacoits arrived; they turned his cot on which he was sleeping and pressed him for about five minutes. He any how managed to escape and ran towards his house. One of the dacoits had also fired on him and he had received bullet injury. He stated that when he entered the room of his brothers wife, he saw some of the dacoits thrashing her and snatching her ornaments. He categorically stated that he identified these dacoits in the torch light which the dacoits were flashing. He further stated that he had seen and identified one of the dacoits in the torch light who was carrying the box kept in the room. He identified the third dacoit who was snatching Hasuli from the neck of his wife. 11. Learned appellants lawyer has pointed out some contradictions in the above statement of PW 1 and his statement recorded by the I.O. under Section 161, Cr PC. He identified the third dacoit who was snatching Hasuli from the neck of his wife. 11. Learned appellants lawyer has pointed out some contradictions in the above statement of PW 1 and his statement recorded by the I.O. under Section 161, Cr PC. These contradictions are not substantive and it does not discredit the evidence of PW 1 made in the Court. At best it can be said that there is some omission in his evidence in the Court. PW 2, Panmati Devi stated that some of the dacoits had entered in her room when she was sleeping. She claimed to have identified some of the dacoits by their faces in the flash of the torch light. Both these witnesses have identified the appellants in the Court and stated that they had identified them in the T.I. Parade as also while committing dacoity in their house. PW 3 the daughter of the informant also claimed to have identified the dacoits in the flash of torch light. She identified both these appellants in the dock. In the cross-examination, she stated that she had identified only those dacoits at the T.I. Parade who had entered in her house. PW 2, is the wife of the informant and claimed to have identified some of the dacoits in the flash of torch light. She was also assaulted at the hands of the dacoits. Thus, she had ample opportunity to be in close vicinity with some of the dacoits and she claimed to have identified them. She identified them in the T.I. Parade and in the dock also. Similar is the evidence of PW 5, who is the brother of the informant. 12. From the evidence of these witnesses read with the evidence of PW 6, it is clear that accused appellant Mahesh Choudhary has been identified by as many as three witnesses and appellant Jiut Choudhary by four witnesses. The witnesses have also stated the specific part played by the appellants in the Commission of dacoity. Therefore, there is no reason to disbelieve their evidence on the point of identification. There is nothing on the record to show that before the T.I. Parade was held in the jail premises, the witnesses had any occasion to see them and as such the delay of 18 days in holding the T.I. Parade is not very material in this case. 13. There is nothing on the record to show that before the T.I. Parade was held in the jail premises, the witnesses had any occasion to see them and as such the delay of 18 days in holding the T.I. Parade is not very material in this case. 13. It was submitted on behalf of the appellants that the informant and his family members had opportunity to see appellants 1 and 2 from before, but from the evidence this fact is not substantiated. The defence has contended that Jatan Choudhary has got his land in the vicinity of the house of the informant and both the accused persons being brother were looking after and cultivating the land of Jatan Choudhary. In support of this fact, Jatan Choudhary has been examined as DW 1. He stated that father of appellants 1 and 2, namely, Mannu Choudhary had visiting terms with his family members and the village in which these appellants were living is only about 200 yards from the P.O. village. In support of the above submission no document with regard to the land has been produced. The accused persons could have produced Khatian to justify this fact. On the other hand, this fact has been denied by the PWs including the informant. As such this defence of the accused persons appears to be only a suggestion given to the witnesses and not substantiated by any reliable evidence. DW 1 does not appear to be an independent witness. Therefore, there is no reliable material on the record to substantiate the defence of the accused that they have been falsely implicated in this case at the instance of Ved Veyan Tiwary, Mukhia of the Gram Panchayat. Mukhia is a witness to the Jardbeyan (Ext. 2). But there is nothing on the record to connect that the Mukhia has any animosity with the accused persons. A carefully scrutiny of the evidence on the point of identification show that PWs 1 to 5 have identified both the accused persons in the T.I. Parade and also in the Court and their evidence on reliable. There is nothing on the record to show that they had any motive to implicate the accused appellants in this case. 14. Besides the identification of the appellants by the witnesses, there is evidence of recovery of stolen articles from their possession. There is nothing on the record to show that they had any motive to implicate the accused appellants in this case. 14. Besides the identification of the appellants by the witnesses, there is evidence of recovery of stolen articles from their possession. Some of the stolen articles were recovered from the possession of appellant Mahesh Choudhary. The I.O., PW 9 has stated that on 15.3,1988, on secret information, he raided that house of Mahesh Choudhary and after search, some ornaments and clothes suspected to be stolen property were recovered, for which seizure list (Ext. 4/2) was prepared in presence of two witnesses. At the time of search both the appellants were found to be traceless. These recovered articles were put on T.I. Parade and the T.I. Chart is Ext. 1/1. PW 7 is the Circle Officer, who held the T.I. parade of the recovered articles on 19.3.1988. PWs 2, 3 and 4 were the witnesses on the point of identification of these articles and they had identified them. In the cross-examination, PW 7 stated that the recovered articles were mixed with other articles of similar description which were brought from the local market. In his statement under Section 313, Cr PC, appellant Mahesh Choudhary stated that the recovered articles were his own properties. Therefore, recovery of these articles from his house is an admitted fact. I do not find any irregularity in holding the T.I. Parade by PW 7. The identifying witnesses are the family members and they are victim ladies because those articles were either stolen from their house or were snatched from their person. Therefore, there can be no doubt in their testimony on the point of identification of these articles. Thus genuineness of the T.I. Parade is above board and there is also no justifying reason to disbelieve the evidence of these witnesses on the point of identification of ornaments and clothes. Thus the recovery of the stolen articles from the house of the appellant No. 1 further corroborates the guilt of the accused appellants which leads to the conclusion that they along with other accused persons had participated in the commission of dacoity in the house of the informant. 15. Thus the recovery of the stolen articles from the house of the appellant No. 1 further corroborates the guilt of the accused appellants which leads to the conclusion that they along with other accused persons had participated in the commission of dacoity in the house of the informant. 15. Therefore, I come to the finding that the trial Court has rightly held that these two appellants were amongst the dacoits who committed dacoity in the house of the informant and as such convicted both of them under Section 395, IPC. 16. So far the charge under Section 412, IPC is concerned, it has been levelled against appellant No. 1, Mahesh Choudhary only. The recovery was made from his house and it has been proved beyond doubt that these articles were the stolen property and looted from the house of the informant in course of dacoity. Therefore, the prosecution has been able to substantiate the charge of Section 412, IPC against appellant No. 1, beyond all reasonable doubt. 17. In view of the above discussions, I find and hold that both the appellants are guilty under Section 395, IPC and appellant No. 1, Mahesh Choudhary is further guilty under Section 412, IPC. Therefore, the order of conviction imposed by the trial Court needs no interference. 18. Learned lawyer for the appellant submitted that the occurrence is dated 13/14.3.88 and about 12 years have elapsed by now.and during all these long years, the appellants have been facing the rigorous of criminal trial. Appellant No. 1 Mahesh Choudhary was taken into custody on 18.3.1988 and he remained in custody all along during trial. He was enlarged on bail by the High Court on 4.10.1989, when this appeal was admitted. Thus he has been in custody for about one year and seven months. Appellant No. 2. Jiut Choudharv was taken into custody on 18.3.1988 but was released on 5.4.1988. Thereafter on the date of judgment, le. 28.8.1989. he was again taken into custody and after filing of the appeal along with appellant No. 1, he was ordered to be released on bail by the High Court on 4.10.1989. Thus he has been in custody for about two months. 19. Thereafter on the date of judgment, le. 28.8.1989. he was again taken into custody and after filing of the appeal along with appellant No. 1, he was ordered to be released on bail by the High Court on 4.10.1989. Thus he has been in custody for about two months. 19. As mentioned above, both the appellants have been sentenced to undergo seven years RI under Section 395, IPC and appellant No. 1, Mahesh Choudhary has further been sentenced to undergo five years RI under Section 412, IPC. However, his sentences were ordered to run concurrently. Considering the above facts, the period of sentence of both the appellants under Section 395, IPC is reduced to three years from seven years as imposed by the Trial Court. Further the period of sentence imposed against appellant No. 1, under Section 412, IPC le. five years RI is reduced to two years. His sentences shall run concurrently. 20. With the above modification in the order of sentence, this appeal fails and is dismissed accordingly. Since both the appellants are on bail, they are directed to surrender in the Court below to serve out their remaining period of sentence.