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2001 DIGILAW 49 (PAT)

Pawan Yadav And Another v. State Of Bihar

2001-01-17

INDU PRABHA SINGH

body2001
Judgment 1. ORDER :- Since both the appeals arise out of the same Judgment and are being heard together, and are being disposed of by this common Judgment. 2 Both the appellants have been convicted under S.412 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years with a fine of Rs.5,000.00 each. In case of failure of payment of fine, they have been further sentenced to undergo rigorous Imprisonment for one year each. 2-A. The prosecution case, in brief, is that a dacoity was committed in the house of Subhankar Kumar (P.W.11) in the night intervening the 25th/26th of October, 1997. It has been stated that the informant was sleeping with his wife (not examined) in a room while his father Satya Narain Sah (P.W.9) and his mother (not examined) were sleeping in another room on the first floor. The two sisters of the informant and their children were sleeping on the Varandah while Deepak Kumar (P.W.8) full brother of P.W. 11 was sleeping at the Darbaja. It has been alleged that at about 12 P.M. 6-7 unknown dacoits armed with country made gun, Bhala, Katha and arrows came there and put a country made gun on P.W.8 and asked him to get the door of the house opened. But in the meantime, one of the dacoits came inside the Angan after scaling the wall and himself unlocked the door as a result of which 4-5 decoits cane inside and woke up the informant after flashing torch light inside the room and asked him to open the door otherwise, his brother would be shot dead. The informant (P.W. 11) opened the door out of fear and three dacoits came inside his room and took away BPL 1407 M Television, one Phillps three band radio over which a sticker of S.M. Electronics was stuck. The doors of the almirah were broken and from that Rs. 1800.00 in cash was looted. Another articles which were looted from his house were one box and 2 Safari Briefcases, 3 wrist watches, one Allwin, another Titan and the 3rd Jaico were also taken away. It has been further alleged that the brief cases and the steel box contained wearing apparels and Rs.1000.00 in cash notes of Rs.100.00 and 50.00 denominations. Some of the notes of Rs.50.00 denomination were bearing the signature of the informant. It has been further alleged that the brief cases and the steel box contained wearing apparels and Rs.1000.00 in cash notes of Rs.100.00 and 50.00 denominations. Some of the notes of Rs.50.00 denomination were bearing the signature of the informant. Thereafter the informant gave the list of huge number of ornaments of silver, gold and rolled gold. Besides the ornaments, a new BSA Cycle of green colour was also taken away. The dacoits committed the theft of a silver chain with Locket from the neck of the wife of the informant. The Informant alleged that the dacoits looted away all the properties worth Rs.25,000.00 . The fardbeyan (Ext.2) of the informant (P.W.11) was recorded by S.I. Abinash Kumar Singh (P.W. 12) at Rampur Village and he himself took up investigation. During the course of investigation, he inspected the place of occurrence and after that on 26-10-1997 at 12.15 P.M. he reached the house of appellant Pawan Yadav. As soon as P.W.12 reached there, the appellants started fleeing away from there but he was chased and apprehended. Thereafter his statement was taken and on that basis, his house was searched in presence of P.W. 5, Anti Kumar and Surendra Sah (not examined) and 5 notes of Rs.50 denomination were found kept in a leather purse which was concealed inside a Bamboo Chachari. Two notes out of these five, were bearing the signature of P.W. 11. The notes were seized after preparing the seizure list, During the interrogation of appellant Pawan Yadav it was revealed that major part of the booty was stored in the house of appellant Rajiv Sah, On that information P.W. 12 along with his raiding party went to the house of appellant Rajiv Sah and raided it at 1.50 P.M. During the course of investigation he found a Philips three band radio, with sticker of S.S. Electronics, ornaments, such as, 2 Karan Phuls, a chain with locket, another chain with locket of sliver, two Bichia of silver, one Mangttka and one Nathla of gold, three chains with locket with blank pearls of silver and two old silver payal along with other articles described by P.W. 12 in his evidence were found concealed inside a earthen grainary (Kothi). These articles found in the Kothi were recovered and a seizure list was prepared in presence of the witnesses, a copy of which was handed over to the wife of appellant Rajiv Sah. The seizure list has been marked as Ext.3/1. These recovered articles were put on T.I.P. conducted by P.W. 13 Shri From Prakash Mahton, Block Development Officer, Sour Bazar on 26-10-1987 itself and each and every item was identified by the informant. On the basis of Ext.2 the case was instituted. Thereafter the cognizance was taken and ultimately the trial concluded with the result as stated above. 3. The appellant pleaded not guilty and have stated that they have been falsely implicated in this case due to enmity. 4. The prosecution In order to prove Its case has examined altogether 12 witnesses out of whom P.W. 1, Raju Sah P.W.2, Kari Sah, P.W.3 Ram Gulam Sah, P.W.4, Jharilal Sah were declared hostile. P.W. 5 is a witness to the seizure but he has stated that nothing was recovered in his presence from the house of appellant, Pawan Yadav. P.W.6, Sahdeo Mukhiya, is yet another witness who was declared hostile. P.W.7, Girija Devl has also not supported the prosecution case. P.W.8, Deepak Kumar is the brother of the informant.P.W.9 Satya Naratn Sah is the father of the informant. P.W. 10, Sitaram Yadav who is also a seizure list witness. P.W.11, Subhanker Kumar is the informant of the case, P.W. 12 is the I.O. of this case, P.W. 13 is Om Prakash Mahton. 5. P.W. 11 the informant has fully supported the case of the prosecution as narrated in the F.I.R. He has stated that on 25/ 26th October, 1997 when he was sleeping with his wife in his room 6-7 dacoits came armed with country made Gun, Bhala, Farsa etc, and he put a country made gun on P.W.8 his brother and asked him to get the door of the house opened. He has further stated that in the meantime one of the dacoits came inside the Angan after scaling the wall and he opened the door as a result of which other dacoits also came inside. One of the dacoits woke up the informant after flashing torch light inside the room and asked him to open the door. He has further stated that in the meantime one of the dacoits came inside the Angan after scaling the wall and he opened the door as a result of which other dacoits also came inside. One of the dacoits woke up the informant after flashing torch light inside the room and asked him to open the door. He has further stated that the dacoits looted away BPL 1407 M Television, one Philips three band radio over which a sticker of S. Electronics was stuck. He has also stated that the dacoits also took away other articles from his room. He has stated that his fardbeyan was recorded by S.I. Abinash Kumar Singh (P.W. 12) and he investigated the case. He has further stated that during the course of investigation P.W.12 inspected the place of occurrence and after that on 26-10-1997 at 12.15 he reached the house of appellant Pawan Yadav and having seen him the appellant wanted to flee away but he was chased and apprehended. Thereafter on his statement his house was searched and 5 notes of Rs.50.00 denomination were found kept in a leather purse which was concealed inside a Bamboo Chachari. He has fully supported that from the possession of appellant, Rajiv, the stolen articles were recovered by P.W. 12 and a seizure list was prepared. The other witnesses P.Ws. 8 and 9 have also fully supported the case of the prosecution. 6. P.W. 13, the Block Development Officer, who conducted the T.I.P. has also fully supported the case of the prosecution. 7. Learned counsel appearing on behalf of the appellants has submitted that both the witnesses P.Ws. 5 and 10 have not supported the case of the prosecution. He has further submitted that P.W. 11 the informant has not mentioned about the currency notes taken by the dacoits in his deposition before the Court below. He has further submitted that P.W.9 father of the Informant has stated that although he participated in the T. I.P. of looted articles but he did not see those articles. 8. Both the appellants were charged under Ss. He has further submitted that P.W.9 father of the Informant has stated that although he participated in the T. I.P. of looted articles but he did not see those articles. 8. Both the appellants were charged under Ss. 395 and 412 of the Indian Penal Code but the Court below did not find sufficient material to convict them for the offence punishable under S.395 of the Indian Penal Code and convicted them only for the offence punishable under S.412 of the Indian Penal Code, since some looted articles were recovered from their house. 9. It appears that T.I.P. was held by P.W.13, the Block Development Officer in respect of looted articles on 26-10-1997 in which P.W. 11 the informant and his father (P.W.) and also wife of the informant, Sunita Kumari (not examined) participated in the T.I.P. It is stated by P.W. 13 that the articles were mixed with the looted articles which is mentioned in the T.I. Chart. However, P.W. 11 has stated that his currency notes were also stolen which was identified at the time of T.I.P. but he has stated in the F.I.R. about the currency notes stolen from the house. P.W.9 the father of the informant has been declared hostile. He has also not supported the recovery of looted articles from the house of the appellant. He has stated in his cross examination that he did not see the looted article as such the recovery of the looted articles and identification of the currency notes do not find any support from the deposition of the witnesses. Though the informant had mentioned in the F.I.R. that the dacoits also looted away the currency notes but it was not corroborated by his statement before the Court below during his deposition. As such there is no admissible evidence regarding theft of currency notes so alleged and accordingly recovery of currency notes from the house of appellant could not be consively proved as stolen articles. Therefore, the appellant, Pawan Yadav, deserves benefit of doubt and is acquites of the charges under S.412 of the Indian Penal Code. 10. So far as appellant Rajiv Sah, is concerned the looted articles so recovered from his house were identified by the informant during the T.I.P. as such the Court below has rightly convicted him for offence punishable under S.412 of the Indian Penal Code. Accordingly, his conviction is maintained. 11. 10. So far as appellant Rajiv Sah, is concerned the looted articles so recovered from his house were identified by the informant during the T.I.P. as such the Court below has rightly convicted him for offence punishable under S.412 of the Indian Penal Code. Accordingly, his conviction is maintained. 11. Coming to the question of sentence learned counsel appear on behalf of the appellant, Rajiv Sah, has submitted that the appellant has remained in all for three years and there is single identification of looted articles against this appellant and P.W.9, father of the informant has stated that he did not see the looted articles which were kept in T.I.P. Therefore, lenient view may be taken while awarding sentence to the appellant, Rajiv Sah. 12. Keeping in view of the submission and in the facts and circumstances of the case, in my opinion, the ends of justice will be met if the sentence of this appellant is reduced to the period he has already gone in jail. The direction of the payment of fine of Rs.5,000.00 in maintained. 13. In the result, Cr. Appeal No.45 of 1999 is allowed and Cr. Appeal No. 153 of 1999 is dismissed with the modification in the sentence. Appeal allowed.