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2001 DIGILAW 340 (PAT)

Rasayan Hazra v. State Of Bihar

2001-04-16

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the order of conviction and sentence passed by Sri Shashi Kumar Choudhary, 3rd Addl. Sessions Judge, Motihari in Session Trial No. 81/83/1/87. Appellants were convicted under Section 395 of the Indian Penal Code. 2. The case of the prosecution, as described in the fardbeyan of Sukhpati Devi, was to the effect that on 5.2.1979, she was sleeping in a room with her husband and her mother and father-in-law were sleeping in another room. Suddenly, four persons armed with chhura entered inside her room and asked her as to where the properties of the house were kept. She told them that she had no property. Her box containing sari, blouse etc. were taken away. One of the dacoits pulled out her golden nose ring from her person. Box taken by the dacoits also contained silver payed and one golden nose pin. She claimed to identify the dacoits whom she had seen in the torch light. Her mother and father had also seen the dacoits and they could also identify them. Out of the dacoits who were 10-12 in number, some of them had entered inside various rooms of the house and some were standing in the courtyard. Yet some others were standing outside the house. They were all armed with dagger, iron rod etc. 3. The accused-appellants denied the charges levelled against them. 4. The prosecution had examined altogether 15 witnesses, out of whom some were formal witnesses and some were material witnesses on the factum of the possession. The trial Court, on the basis of the evidence adduced, held that the offence of the dacoity in the house of the informant was established. However, the trial Court held that the charge under Section 412, IPC framed against Rasayan Hazara (appellant No. 1) was not proved and hence he was acquitted of the aforesaid charge. Two appellants before this Court who were charged under Section 395, IPC were convicted for the offence and others were acquitted. 5. Before me, it was submitted that both the appellants were convicted on the basis of single identification. Hence, their conviction and bad and there was benefit of doubt which was available to the appellants. Hence, they should have been acquitted. 5. Before me, it was submitted that both the appellants were convicted on the basis of single identification. Hence, their conviction and bad and there was benefit of doubt which was available to the appellants. Hence, they should have been acquitted. However, I find that the order of conviction passed against the appellants which was allegedly based only on single identification is not borne out by the evidence on the record. In this connection, I am to point out that so far Rasayan Hazra is concerned, PW 5 Jiwat Sah said that he had gone to Motihari Jail where he identified one dacoit who gave his name to the Magistrate holding TI Parade as Rasayan Hazra. This witness said in cross-examination by the accused that this dacoit whom he identified had pointed chhura towards him at the time of dacoity. He denied the suggestion that he had seen the accused before TI Parade. So the identification of Rasayan Hazara by Jiwat Sah was not tainted. Moreover, criticism of appellants lawyer that identification did not refer to manner of identification is also not tenable; because in cross-examination, this witness has claimed that accused-appellant had shown him chhura during the course of dacoity. Now, so far identification of Rasayan Hazara by a single witness is concerned, it is to be noted that TI Magistrate, who was examined as PW 14, clearly said that Rasayan Hazara was identified by one Karjhingan Sah as one of the dacoits. This accused was also identified by Jiwat Sah as PW 5. One Mahendra Sah also identified Rasayan Hazara. In the judgment of the trial Court, it has been mentioned that Karjhingan Sah was dead and Mahendra Sah was not examined. In view of the fact that Karjhingan was dead his identification as vouchsafed to by TI Magistrate (PW 14) could be taken to be substantive piece of evidence supported by the TI chart. The evidence of TI Magistrate given on oath becomes a substantive piece of evidence although TI chart is simply a corroborative piece of evidence. So I think that PW 5 was also supported by the TI Magistrate so far as identification of Rasayan Hazara by another witness Karjhingan Sah and Mahendra Sah. So the contention of the appellants lawyer that identification of Rasayan Hazara was by a single witness is not sustainable. 6. So I think that PW 5 was also supported by the TI Magistrate so far as identification of Rasayan Hazara by another witness Karjhingan Sah and Mahendra Sah. So the contention of the appellants lawyer that identification of Rasayan Hazara was by a single witness is not sustainable. 6. So far appellant, Jitan Mahto is concerned, he was identified by the informant, Sukhpati Devi (PW 8) firstly. It was submitted by appellants lawyer that Jitan Mahtos identification by Sukhpati Devi was also not proper because she has said only that she had identified one person in the TI Parade, but manner of identification was not referred to. However, I find that this argument of the appellants lawyer is not sustainable because Sukhpati Devi has clearly said that she had gone to Motihari Jail to identify the dacoits. She further said that she identified one dacoit and pointed out towards Jiwan Mahto who was standing in the dock. She has been supported by TI Magistrate (PW 14) who also said that Sukhpati Devi had identified Jitan Mahto and she had said that this person had committed dacoity. So the manner of identification of Jitan Mahto by Sukhpati Devi was clear and it was to the effect that this accused had taken part in the alleged offence of dacoity. Now another witness PW 13, Krishna Baitha, also said that in the morning he had seen one person running away when he was guarding his crops in the field and there was an alarm. This person who was armed with doubel-barrel gun was caught on chase. Thereafter he was handed over to the police and this person had disclosed his name as Jitan Mahto. This witness could not be cross-examined by the accused lawyer because the court in spite of waiting for considerable period of time, discharged the witness when his lawyer failed to turn up. So evidence of this witness is very much valid and worth consideration. Thus, Sukhpati Devi was also supported by Krishna Baitha. Therefore, identification of this appellant was not single. It was submitted before me that the appellant Jitan Mahto was caught on chase, but it was not understandable why he was not named in the FIR itself. It is to be noted that fardbeyan of Sukhpati Devi was recorded at her home whereas Jitan Mahto was arrested by the villager and handed-over to the police. It was submitted before me that the appellant Jitan Mahto was caught on chase, but it was not understandable why he was not named in the FIR itself. It is to be noted that fardbeyan of Sukhpati Devi was recorded at her home whereas Jitan Mahto was arrested by the villager and handed-over to the police. So omission regarding name of Jitan Mahto in the FIR was very much probable because informant might not either be aware of arrest of Jitan Mahto or she might have advertently omitted to mention the name of Jitan Mahto in the FIR So this omission cannot be given undue importance. So I am of the opinion that the evidence regarding the identification of appellants was sufficient to hold them guilty for the alleged offence. 7. In the result, I am of the opinion that there is no necessity to differ with the order of conviction recorded by the trial Court. So far quantum of sentence is concerned, both appellants have been awarded to suffer imprisonment for ten years. I do not think, this sentence also deserves any reconsideration. Hence this appeal is dismissed. 8. The appellants are directed to surrender in the court below to suffer remaining period of sentence.