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2001 DIGILAW 503 (PAT)

Ram Ashis Dome v. State Of Bihar

2001-06-29

A.K.SINHA, R.N.PRASAD

body2001
Judgment 1. The sole appellant has preferred this appeal against the judgment and order dated 28.9.1994/30.9.1994 passed by 6th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 1120 of 1979. Whereby the sole appellant has been convicted for the offence under Section 396 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The informant, Rustam Mian, gave his fardbeyan 1.11.1976 at about 9 a.m. in the hospital that he along with members of his family was sleeping in the house. At about 2 a.m. the dacoits entered the house after opening the door. They were flashing torch. His uncle Sultan Mian and father Wazir Mian also woke up. The dacoits caught them and there was scuffle. In the light of the torch he saw 8-10 dacoits out of whom he identified Ram Ashish Dome, the appellant, with country made gun, Chola Dome and Langra Dome. The dacoits were wearing Dhoti, Lungi, Shirt, etc. and they were of different size. Sultan Mian caught Chola Dome and Wazir Mian caught another dacoit. Chola Dome shouted on which the appellant fired causing injury on the back of Sultan Mian. The other dacoit fired causing injury to his father, Wazir Mian. Some female members also sustained injury. The dacoits took away boxes and other articles from his house and from the house of Sultan Mian. On hearing alarm villagers assembled and chased the dacoits. During chase five persons sustained injury and they fell down. Thereafter, they were assaulted by the people and four of them namely, Chola Dome, Laxman Dome, Munna Dome and Kedar Dome died. Lengra Dome was caught and he disclosed that the appellant called them to commit dacoity. The injured Sultan Mian and Wazir Mian were taken to Nasriganj hospital where Sultan Mian died and his father Wazir Mian was taken to Patna for treatment. 3. On the aforesaid fardbeyan a formal First Information Report was drawn. Investigation was taken up and on completion of investigation charge-sheet was submitted. On receipt of charge-sheet in the Court cognizance was taken and the case was committed to the Court of Sessions for trial. During trial the appellant and Darogia Dome were put on trial. The trial court convicted the appellant as indicated above, however, acquitted Darogia Dome. 4. Investigation was taken up and on completion of investigation charge-sheet was submitted. On receipt of charge-sheet in the Court cognizance was taken and the case was committed to the Court of Sessions for trial. During trial the appellant and Darogia Dome were put on trial. The trial court convicted the appellant as indicated above, however, acquitted Darogia Dome. 4. The defence of the appellant was that pigs of the appellant were used to be taken in front of the house of the informant which the informant used to protest and for the aforesaid reason he was falsely implicated in the case. 5. During the trial thirteen witnesses were examined out of whom PW 10 is informant and has claimed to be an eye-witness to the occurrence. PW 8 and PW 9 have also claimed to be the eye- witnesses. PW 1 has proved fardbeyan. Ext. 1 and First Information Report. Ext. 2 PW 2. PW 3 and PW 4 have been declared hostile. PW 5 is a formal witness. He slated that in dacoity his cycle was also taken away. PW 6, PW 7 and PW 11 were tendered. PW 12 is Sub-Judge, who held TI parade of Darogia Dome. PW 13 proved post-mortem report. 6. The factum of dacoity is not in dispute. The dispute is with regard to participation of the appellant in the dacoity. In the incident of dacoity four dacoits were killed and one Sultan Mian from the prosecution side was also killed. PW 8 sustained injury in the said incident of dacoity. The appellant is co-villager of the informant. In the case of dacoity identification by the witnesses plays a vital role for coming to a conclusion. In the instant case, PW 8, PW 9 and PW 10 claimed to be the eye- witnesses to the occurrence. PW 10 is informant and PW 9 is his brother. They were sleeping on the roof of the house. They woke up on hearing alarm and saw 10-12 dacoits in the courtyard. The dacoits were scuffling with Sultan Mian and Wazir Mian, PW 8. The appellant fired causing injury to Sultan Mian and one other dacoit fired causing injury to PW 8. The dacoits entered his house and the house of Sultan Mian as the partition wall was four feet high. The dacoits were scuffling with Sultan Mian and Wazir Mian, PW 8. The appellant fired causing injury to Sultan Mian and one other dacoit fired causing injury to PW 8. The dacoits entered his house and the house of Sultan Mian as the partition wall was four feet high. They identified the appellant, Ram Ashish Dome, Chola Dome and Langra Dome in the light of the torch. The dacoits took away the boxes and other articles from the house. On hearing alarm the villagers came and chased the dacoits. Five dacoits were caught and were assaulted out of whom four dacoits died and one Langra Dome survived and he was handed over to the police. The injured were taken to the hospital for treatment. However, Sultan Mian died in the Nasriganj hospital and Wazir Mian was taken to Patna for treatment. In the cross- examination both the witnesses supported the prosecution case on all material points. The witnesses stated that 4-5 dacoits had torches in their hands. They were flashing torches and as such it was easy for identification. In spite of cross-examination at length nothing cogent could be taken by the defence to doubt the evidence of the witnesses. 7. PW 8 is an injured witness and as such his presence at the time of occurrence cannot be doubted. His evidence is that he was sleeping in the eastern room of the house. He woke up and saw 8-10 dacoits in the courtyard. There was scuffle between Sultan Mian and the dacoits. He identified Ram Ashish Dome, the appellant, Chola Dome, Darogia Dome and Langra Dome in the light of the torch. Ram Ashish Dome fired causing injury to Sultan Mian who died in the Nasriganj hospital. Darogia Dome fired causing injury to him on the chest. Four dacoits were killed on chase. Langra Dome was caught. The articles from the house were looted. In the cross-examination the witness stated that dimension of the courtyard was 6 x 4. His statement was recorded by the police on the next morning in the hospital. The attention of the witness was drawn to the statement made before the police. The witness stated that he had stated before the police that Sultan was catching hold of Chola Dome. Ram Ashish Dome fired causing injury to Sultan Mian. The other dacoit fired which caused injury to him. The attention of the witness was drawn to the statement made before the police. The witness stated that he had stated before the police that Sultan was catching hold of Chola Dome. Ram Ashish Dome fired causing injury to Sultan Mian. The other dacoit fired which caused injury to him. He found Sultan Mian lying in the courtyard. He named Darogia Dome before the police. He also identified him in the TI parade. In cross-examination nothing cogent was taken by the defence to discard the evidence of the witness. However, it was pointed out that since the Investigating Officer has not been examined, the case of the defence has been prejudiced. Admittedly the Investigating Officer has not been examined in this case but from the evidence as indicated above it appears that the attention of the witness was drawn with respect to manner of occurrence and not with respect to identification of the appellant. With respect to darogia Dome his attention was drawn with respect to identifiction and the trial Court considering the aforesaid fact has acquitted" Darogia Dome. Thus, from the evidence as discussed above, it does not appear that any attention was drawn with respect to identification of the appellant. The identification in the case of dacoity is very material and the case hinges on the point of identification of the culprits. 8. Even if the evidence of PW 8 is excluded for the sake of submission, there is no ambiguity in the evidence of PWs 9 and 10. They have categorically stated that they were on the roof of the house and had identified the appellant in the torch light. The appellant was co-villager. Therefore, the identification, in our view, can not be doubted. Nothing cogent could be elicited from their cross-examination to doubt their evidence in any manner. Moreover, no attention of the witness 2was drawn to the statement made before the police and as such the defence cannot take plea that non-examination of the Investigating Officer, has caused prejudice to the defence case. 9. Learned counsel for the appellant, however, contended that admittedly the appellant was co-villager of the informant and there is no evidence on the record that he had concealed his face. A known person generally does not go to commit such offence without concealing his face. Therefore, prosecution case cannot be accepted. 9. Learned counsel for the appellant, however, contended that admittedly the appellant was co-villager of the informant and there is no evidence on the record that he had concealed his face. A known person generally does not go to commit such offence without concealing his face. Therefore, prosecution case cannot be accepted. In this regard it would be pertinent to mention herein that concealing of face by the known person depends upon the temperament of the person. There may be a person who cannot commit such offence but there may be such person who had no hesitation in committing such offence. Moreover, plea of non-concealment of face by known person 2cannot be a rule for doubting the prose- cution case as it depends on the facts and circumstances of each case. Thus, on consideration as discussed above, we find no substance in the submission of the learned counsel for the appellant. 10. Learned counsel for the appellant also pointed out that since the eye-witnesses examined in this case are relations of the informant, it can safely be said that they are interested witnesses and as such their evidence should be discarded. In this regard, it would not be out of place to mention herein that merely because the witnesses are interested their evidence cannot be thrown out. The rule of law is that evidence of such witnesses must be considered with care and caution. In the instant case the dacoity was committed in the house of the deceased Sultan Mian. The witnesses are inhabitants of the house and in such a situation such witnesses are the most natural and competent witnesses. Their evidence is that they were sleeping in the house. Therefore, merely because they are interested witnesses, their evidence cannot be thrown out. We have considered in details the evidence of these witnesses and we find no infirmity/illegality in their evidence and, thus, in our view the contention of the learned counsel for the appellant has no leg to stand. 11. Thus, on consideration as discussed above, we find no merit in this appeal. Accordingly, this appeal is dismissed.