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2001 DIGILAW 214 (PAT)

Tapeshwar Yadav v. State Of Bihar

2001-03-08

INDU PRABHA SINGH

body2001
Judgment 1. Criminal Appeal No. 111/97 and Criminal Revision No. 223/97 arise out of the same judgment and have been heard together and are being disposed of by this common judgment. 2. Cr. Rev. No. 223/97 has been filed against the judgment and order dated 2-4-97 passed by 2nd Additional Sessions Judge, Bhagalpur by which the learned Judge acquitted four accused-opposite parties and convicted the rest four accused under S. 395 of the Indian Penal Code and they were sentenced to undergo R.I. for five years. In this case it has also been prayed that the sentence passed by the Court below is less. Therefore, it had been prayed that the sentence imposed upon the four convicted accused persons be enhanced to life imprisonment and also to convict the acquitted opposite parties. 3. In Cr. Appeal No. 111 of 1997 four appellants, namely, 1. Tapeshwar Yadav, 2. Bhudeo Yadav, 3. Sukdeo Yadav and 4. Raghu Mistri, had been convicted under S. 395 of the Indian Penal Code and have been sentenced to undergo R.I. for five years each. 4. The prosecution case, in short, is that the informant, Anuplal Yadav, on 17-2-82 at about P.W. 1 Bijay Yadav was reading in his own room in the light of lantern. The family members were sitting near fire after taking their meal in the courtyard. It has been stated that his brother, Kailash Yadav alias Kapildeo Yadav, had gone to darwaja. Suddenly at 12-30 a.m. about five persons went in the room of his uncle Rameshwar Yadav and fired twice and on hearing this the informant came out from his room in the courtyard. Vijay Yadav also came in the courtyard. It has been stated that in the meanwhile, three dacoits came to the court- yard while rest remained on the roof. It has further been stated that they caught the informant and Vijay Yadav and opened the door of the western side of the house, five to six dacoits went in the courtyard and asked regarding whereabout of Kailash Yadav. They also threatened them, if they would not disclose whereabouts of Kailash Yadav, they will be killed. It has been stated that the dacoits were talking between them that firstly they will loot the property and thereafter kill them. Accordingly they started plundering articles and having seen them the family members fled away from the house towards eastern side. They also threatened them, if they would not disclose whereabouts of Kailash Yadav, they will be killed. It has been stated that the dacoits were talking between them that firstly they will loot the property and thereafter kill them. Accordingly they started plundering articles and having seen them the family members fled away from the house towards eastern side. It is also stated that the property of the house of Bijay Yadav, his cousin, was also looted by the miscreants, and then the dacoits took the informant and Bijay Yadav before his father. The informant identified the dacoits namely, Tapeshwar Yadav, Sukdeo Yadav, Bhudeo Yadav, all of the village of the informant and dacoit Raghu Mistry belonged to Makrudin. It has been stated that Tapeshwar Yadav had thrown a bomb on Kailash Yadav while Sukdeo Yadav uttered that he could not be killed, so his neck should be cut by Garasa and Tapeshwar Yadav inflicted a Garasa blow on Kailash Yadav. In the meantime the father of the informant came to save his son, then Bhudeo Yadav threw a bomb on his father which caused hurt on the wrist of his father. Apellant Raghu Mistry said that police had come and they fled away towards the southern side. Statement of informant, D.W. 6 was recorded by the S.I. in the night at 1.00 a.m. itself. On the basis of the statement of P.W. 6 a formal FIR was drawn up. During the investigation names of the four appellants (since acquitted) were added as accused. Police submitted chargesheet against ten accused persons but two of them died in course of trial. Subsequently cognizance was taken and the case was committed to the Court of Sessions. Ultimately the trial concluded with the result as indicated above. The appellants pleaded not guilty and have stated that they have been falsely implicated due to enmity. 5. The prosecution in support of its case examined altogether 9 witnesses. P.W. 1 is Kailash Prasad Yadav alias Kapildeo Yadav, P.W. 2 is Bijay Kumar Yadav, P.W. 3 Rameshwar Yadav, P.W. 4 is Aruna Devi, P.W. 5 Sarswati Devi, P.W. 6 Anup Lal Yadav, P.W. 7 Abdul Shamad, P.W. 8 is Shanti and P.W. 9 is Mahesh Prasad. 6. On factum of the occurrence there are six witnesses including the informant, P.W. 6. 6. On factum of the occurrence there are six witnesses including the informant, P.W. 6. P.W. 1 is own brother of the informant P.W. 3 is the uncle of the informant and P.W. 2 is son of P.W. 3. P.W. 4 is the wife of the informant and P.W. 5 is the wife of P.W. 3. P.W. 6, the informant, Anup Lal Yadav, has fully supported the case of the prosecution and has stated that in the night of 17/ 18/02/1982 at about 1 p.m. while he was sitting in his room 10-15 dacoits came to his darwaza. He has stated that 5 persons went to the roof of Rameshwar Yadav and fired twice from there. On hearing the sound of firing he came out in the courtyard. Vijay Yadav also came out in the courtyard. He has stated that three dacoits descended from the courtyard while the rest were on the roof. He has stated that the dacoits caught him and asked him about whereabouts of Kailash Yadav and threatened him to disclose his whereabouts otherwise he would be killed. They started looting in the rooms of western side of the house. He has stated that seeing the dacoits the female of the house fled away from the door of eastern side. He had further stated that during course of commission of dacoity he identified the appellants, Tapeshwar Yadav, Sukhdeo Yadav, Bhudeo Yadav and Raghu Mistry. He had stated that their faces were covered with Galmochha but their faces were visible and he identified the dacoits in the light of lantern and also flash of torch, flashed by the dacoits. He has stated that he has proved his signature on his statement which is Ext. 1. In his cross-examination he has stated that he had gone to attend the Test Identification Parade after one year and six months of the occurrence. He has stated that he identified Bhoju Yadav who is brother-in-law of the appellant, Sukdeo Yadav. He has also stated that he had land dispute with the appellants, Tapeshwar Yadav and there was litigation between them. 7. P.W. 1 got injuries during dacoity and his statement was recorded after fifteen days in the hospital by the police. He has stated that he identified Bhoju Yadav who is brother-in-law of the appellant, Sukdeo Yadav. He has also stated that he had land dispute with the appellants, Tapeshwar Yadav and there was litigation between them. 7. P.W. 1 got injuries during dacoity and his statement was recorded after fifteen days in the hospital by the police. He had also supported the prosecution case as narrated by the informant, P.W. 6, he had stated that when he was assaulted by the dacoits he became unconscious and his statement was recorded in the hospital. He also identified the aforesaid five appellants, Bhudeo Yadav, Tapeshwar Yadav, Sukhdeo Yadav and Raghu Mistry in the light of lantern and flash of torch. He had also admitted that prior to the dacoity he had litigation with Bhudeo Yadav. P.Ws. 2, 3 and 6 have also supported the factum of dacoity. P.Ws. 2 and 3 have also stated that they have identified four appellants. P.Ws. 4 and 5 have stated that they did not identify any of the dacoits during the commission of the dacoity. P.W. 5 has further stated that none of the male members disclosed the names of dacoits to her. P.Ws. 7 and 8 had conducted the T.I. Parade. P.Ws. 7, 8 and 9 are formal witnesses. P.W. 9 has stated that the informant identified one co-accused since acquitted. 8. Learned counsel appearing on behalf of the appellants has submitted that on the factum of dacoity all the witnesses are interested and are closely related to each other. It is further stated that two ladies. P.Ws. 4 and 5 had not supported the identification of the dacoits. It has also been submitted that though it was dark night and light was not adequate as claims of identification by inimical P.Ws. are doubtful with intention to falsely implicate the appellants. It has also been submitted that P.W. 2, Vijay Yadav, has clearly stated in his cross-examination in paragraph 8 that the dacoits were flashing torch facing downward. 9. It is not in dispute that the informant and the appellants are next door neighbour and they have litigation amongst themselves for a land which was alleged to have been purchased by the appellants, Sukhdeo from one Nand Lal Verma, Advocate of Bhagalpur. 9. It is not in dispute that the informant and the appellants are next door neighbour and they have litigation amongst themselves for a land which was alleged to have been purchased by the appellants, Sukhdeo from one Nand Lal Verma, Advocate of Bhagalpur. It appears that the fardbeyan was recorded in the night at 12-30 p.m. on the same day and the same was shown to have dispatched by the I.O. on 18-2-82 to the C.J.M., but surprisingly it reached/was seen by the C.J.M. at 2.45 p.m. on 20-2-82. The distance of Jagdishpur police station from District Head Quarters Bhagalpur is about 30 kms. which is covered in 3 hours by a public transport. The inordinate delay in reaching FIR has not been explained which creates doubt about prosecution story and also creates possibilities of false implication. P.W. 3 in his deposition in paragraph No. 16 has stated that the appellants were not covering their faces and their faces were open. He has also stated that some of the dacoits had covered their faces and he did not identify them. As such, he has controverted the case of the prosecution. All other accused persons on the factum of the dacoity and identification are related to the informant and their testimony has to be scrunitised more critically. P.W. 3 has further stated that P.W. 2 Kailash became unconscious after the assault of dacoit whereas P.W. 2, Kailash Yadav in paragraph 5 specifically stated that when Daroga came to the place of occurrence was shown injury which was inflicted by the police. In paragraph No. 15 he has further stated that after the dacoity he fled away and he talked to his family members, but he did not disclose the name of the dacoits. 10. In this case non-disclosure of the name of the dacoits to the ladies of the house creates doubt about identification of FIR named appellant. It is clear that dacoits were covering their faces and according to the PW. 2 the forches were focussed downward by the dacoits and as such in such means of light the possibilities of identification is more doubtful. It has been proved that there was litigation between the appellants and the informant. 11. In view of proved enmity, delayed submission of FIR and flimsy means of identification of persons covering their faces, it would not be safe to convict the appellants. It has been proved that there was litigation between the appellants and the informant. 11. In view of proved enmity, delayed submission of FIR and flimsy means of identification of persons covering their faces, it would not be safe to convict the appellants. The prosecution has not been able to prove its case beyond reasonable doubt. Accordingly, the appellants deserve benefit of doubt. In the result, conviction and sentence passed by the Court below against the appellants is set aside and they are discharged from the liability of their bail bond. 12. So far the Revision Petition No. 223/97 is concerned, the Court below on the appreciation of evidence adduced, convicted the four appellants, namely, Tapeshwar Yadav, Bhudeo Yadav, Sukdeo Yadav and Raghu Mistry alias Raghunandan Mistry, and acquitted the four opposite parties, namely, Asgar Mian, Jagdish Yadav, Bauju Yadav and Harihar Yadav. The informants had filed the aforesaid revision petition against the acquittal of four opposite parties and also for enhancement of the sentence of the appellants of Cr. Appeal No. 111/97. 13. Learned counsel appearing on behalf of the petitioner had submitted that the Court below erred in acquitting the aforesaid opposite parties although there was sufficient evidence and materials against them. They were also put on Test Identification Parade and identified by the witnesses but the Court below has not taken into consideration this aspect of the matter and acquitted these four opposite parties. 14. From the perusal of FIR it appears that the opposite parties, namely, Asgar Mian, Jagdish Yadav, Bhuju Yadav and Harihar Yadav, were not named in the FIR subsequently, they where named by one co-accused Bauju Yadav. Bauju Yadav was put on Test Identification Parade and he was identified by the informant in T.I. Parade conducted by P.W. 8 on 25-4-82. However, P.W. 8 did not mention in TIP chart that opposite party No. 4 was having small pox mark on his face. It appears from the record that other opposite parties except Bhoju Yadav were not put on T.I. Parade. As such only one opposite party, Bhoju Yadav was identified by the informant and that too who was known to him from before and, if actually had be participated in the crime, his name should have been given initially by the informant in his FIR. 15. As such only one opposite party, Bhoju Yadav was identified by the informant and that too who was known to him from before and, if actually had be participated in the crime, his name should have been given initially by the informant in his FIR. 15. As such, the prosecution could not prove the charges levelled against the oppposite parties beyond reasonable doubt and they have been rightly acquitted by the Court below. 16. So far the enhancement of the sentence of the opposite parties/appellants, namely, Bhudeo Yadav, Sukdeo Yadav, Raghua alias Raghunandan Sharma alias Mistry and Tapeshwar Yadav, are concerned, on the basis of material available on the record and the evidence of P.Ws. even the case of the prosecution was found to be not proved beyond all reasonable doubts and as a result of which the appellants of Cr. Appeal No. 111/97 have been acquitted on benefit of doubt. As such the question of enhancement of sentence of these appellants does not arise, and there is no merit in this revision. Accordingly, this Cr. revision is dismissed. 17. In the result, Appeal No. 111/97 is allowed and Cr. Rev. No. 223/97 is dismissed. Order accordingly.