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2001 DIGILAW 511 (PAT)

Bhola Sao v. State Of Bihar

2001-07-03

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. These three appeals were heard analogous because they have been preferred against the same judgment dated 30.1.1990 and the same order of conviction and sentence passed against the appellants of the aforesaid three appeals. All the appellants were convicted under Section 397/395 as also under Section 395 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for seven years on both the counts. They were further sentenced to pay a fine of Rs. 5,000/- for the offence under Section 395, IPC. The sentenced were directed to run concurrently. 2. The prosecution case as mentioned in the fardbeyan of Durga Devi (Ext. 5) was to the effect that on 13.3.1989 at about 7.30 p.m. the informant, her husband Dayakant Jha, her son Narendra Kumar Jha and her neighbours, namely, Nawin Kumar, Ramji Prasad, Ramesh Singh, Md. Fahim and one Chand were enjoying a film show on T.V. There was an interval and her husband went out to take tea. So the door of the room in which T.V. show was being watched was kept open. Suddenly the informant heard sound of ringing of bell. She went out into the veranda and then suddenly she found that three young persons were standing near the bell. Out of the three one person approached her and gave her 2-3 slaps and then she was brought to the same room in which the T.V. show was being enjoyed. She was made to sit there. This person who brought her to the room whipped out a pistol from his pocket and pointing it out towards all the persons who were sitting in the room asked them to keep quiet. At this moment two more persons were standing in the veranda. The informant realised that they were dacoits and so she kept mum. Then the man who had brought her to the room and who was having cover on the face relieved Ramji Prasad of his wrist watch and he also snatched the informants golden nose ring. This dacoit also then took a transistor kept inside the room. Then he also picked up navy blue suit, one full pant and one shawl. This dacoit handed over these articles to the men standing on the veranda. At this stage one dacoit wearing lungi and blue coloured shirt entered inside the room. He picked up one T.V. from the room. Then he also picked up navy blue suit, one full pant and one shawl. This dacoit handed over these articles to the men standing on the veranda. At this stage one dacoit wearing lungi and blue coloured shirt entered inside the room. He picked up one T.V. from the room. Thereafter, when articles were looted from the room, the man who possessed the pistol assaulted the informant with the butt of the same and asked her to point out to other articles of her house. At this stage the face of the man got uncovered and the informant identified him in the light of the bulb. She had also happened to see all the dacoits when she went to the veranda where she saw two more persons standing at the gate. When the informants husband was coming back, the dacoits pushed him inside the veranda and exploded some kind of bomb material. Thereafter the informant, her husband and son went upstairs on the roof of the house and there was alarm which attracted some men. 3. In the lower Court as many as 10 witnesses were examined by the prosecution. PW 10 was the I.O. of the case, Pw 9 was the informant of the case, Durga Devi, PW 8 was the Doctor who treated Rajendra Yadav and he also examined the other accused-appellants to find out whether they were under intoxication, PW 7 was Narendra Kr. Jha, the informants son, PW 6 was seizure list witness Sachidanand Prasad, PW 5 was Chandra Bhushan Singh, T.I. Magistrate, PW 4 was Dayakant Jha, husband of the informant, PW 3 was Omprakash, another TI Magistrate. PW 2 was Md. Washimuddin, son of the Inspector of Police of Rajgir at the relevant time. PW 1 was another son of the Inspector of Police. Thus, PWs 1, 2, 7 and 9 are the so-called eye-witnesses to the alleged occurrence of dacoity inside the room in which TV show was being watched by the witnesses. PW 4 Dayakant Jha, husband of the informant, was not present when the dacoits entered inside the room. He had seen the accused persons when they were retreating and he claimed to identify them while in flight. PW 4 Dayakant Jha, husband of the informant, was not present when the dacoits entered inside the room. He had seen the accused persons when they were retreating and he claimed to identify them while in flight. Against the above evidence of the prosecution, the accused appellants examined two witnesses PW 1 and 2 who were described to be present in the room in which TV show was going on the TV and they were referred to by the informant herself in her fardbeyan (Ext. 5). 4. From the above account of the prosecution evidence, it is apparent that the informant, her husband and her son are the witnesses supported by PW 1 and 2 to speak something on the point of occurrence. Admittedly, the informants husband was not an eye-witness with respect to the occurrence of dacoity in the room in which TV Show was being watched by the witnesses, rather he had seen the accused in flight. So far the other witnesses are concerned, both the informant and her son are admittedly the interested witnesses. PW 1 and 2 also become interested in view of the fact that it has been alleged by the accused in cross-examination that ASP was an accused in a murder case filed by accused Rajendra Yadav, fufera brother of accused Mahesh Yadav. PW 10 at paragraph 29 has admitted that Bhibhuti Bhushan, ASP is an accused of a case under Section 302, IPC but he denied knowledge whether Rajendra Yadav, fufera brother of accused Mahesh was the informant of the case. So, perhaps, this witness did not controvert the fact that Rajendra Yadav was informant of the case, rather he evaded direct answer to this question. It was further admitted by the PW at paragraph 6 that ASP was present when the I.O. was investigating the case and he was examining certain witnesses. It has further come in evidence of PW 10 that he was examining the witnesses on the same date on which the alleged occurrence took place. The headquarter of ASP must be at Biharsharif, Nalanda, and it is not understandable how the ASP suddenly reached Rajgir in order to supervise the case. From the aforesaid facts, the allegation of the accused that accused persons were falsely implicated gains some significance. The headquarter of ASP must be at Biharsharif, Nalanda, and it is not understandable how the ASP suddenly reached Rajgir in order to supervise the case. From the aforesaid facts, the allegation of the accused that accused persons were falsely implicated gains some significance. PW 1 and 2 are sons of the Police Inspector, whose residence admittedly was close to the place of occurrence which was the house of the informant. So, from the aforesaid circumstances it is apparent that all the so-called eye-witnesses become interested ones. The fact that two of the so-called persons who were watching the TV show along with the informant in her house at the relevant time have been produced by the accused appellants on their behalf and none of them supported the fact that accused appellants were participating in the alleged dacoity in the house of the informant, the interstedness of PWs gained further importance. PW 2 Ramji Prasad was allegedly a victim of the alleged loot. He was relieved of the wrist watch, but this witness failed to support the fact that the accused appellants were the culprits in the alleged plunder in the house of the informant. It has not been elicited from PWs whether they had been examined by the police or whether they had supported the fact that the accused appellants were involved in the alleged occurrence of dacoity. It was also not put to them whether they had appeared in the TI parade and whether they had identified any of the culprits as participating in the alleged dacoity. It is not also understandable as to why the PWs who have bee mentioned as witnesses in the fardbeyan of the informant were not produced as witness in the TI Parade. So, the production of the interested witnesses only in the.TI parade was a suspicious circumstance. 5. The cardinal principle of law is that prosecution must prove its case beyond all reasonable doubt by positive, sufficient and un-impeachable evidence. I have already stated above that the witnesses examined on behalf of the prosecution to prove the occurrence become interested ones. Witnesses may lie but the circumstances cannot. So, certain significant circumstance emerging from the evidence on record have to be considered in order to find out whether the evidence on record is sufficient to bring the charges home to the accused beyond all reasonable doubts. Witnesses may lie but the circumstances cannot. So, certain significant circumstance emerging from the evidence on record have to be considered in order to find out whether the evidence on record is sufficient to bring the charges home to the accused beyond all reasonable doubts. In this connection, the first circumstance that attracts notice is that the I.O., PW 10, said that he came to the PO on hearing sound of explosion. Then he learns that dacoity was committed in the house of the informant. Then he proceeds to examine the informant Durga Devi. After recording her fardbeyan he inspected the PO and thereafter he learns at that very place that one injured person was sent to the hospital and, so, he goes to the hospital to examine this person. He learns the name of other accused persons from this injured. Then he goes to the house s of the accused and from there he proceeds to the Bus stand where he arrested accused persons except Lalan Yadav. Then he comes back to the PO where he makes seizure of certain articles at the place of occurrence, such as, burnt tape, some pieces of paper and pieces of tin which smell of sulpher was emanating. It is not understandable why the I.O. did not seize the materials which were found at the PO just when he was examining the same, I.O.s conduct of going to the PO, examining it, and then going to the hospital, from there to the houses of the accused and then to the Bus Stand and again coming to the PO to seize the articles found there, makes an interesting reading and leaves a bad taste. I.O. had admitted in his evidence that he had arrested accused persons at the Bus Stand. Nothing was seized from their possession nor any incriminating instrument was found. It is also not understandable as to why the I.O. did not search the houses of the accused when he had gone there to recover certain looted articles. The fact that the accused persons had gone to Bus stand, if at all they had gone there, only indicate that they were trying to escape from Rajgir and so, by that time they might have either disposed of the articles looted or they might have left the same in their houses. The fact that the accused persons had gone to Bus stand, if at all they had gone there, only indicate that they were trying to escape from Rajgir and so, by that time they might have either disposed of the articles looted or they might have left the same in their houses. So, the I.O. should have attempted to recover those looted articles either from their houses or from any of the market places. There is no evidence in the examination of the I.O. that he made any attempt to recover any looted articles. This would also be a circumstanceagainst the prosecution and in favour of the appellants whether they had, of course, committed the dacoity on the alleged date and on the alleged time when admittedly the accused persons were arrested just a few hours after the alleged occurrence. 6. The fact whether three of the accused appellants were arrested from the Bus stand also becomes suspect because the Doctor in his cross-examination at page 7 said that three of the accused appellants, namely. Mahesh, Binay @ Bijay Kumar and Bhola, were bringing medicines. So, it appears that these three accused appellants had gone to the hospital carrying the accused Rajendra Yadav, as it was suggested to the PWs and it has been elicited from the examination of the accused persons under Section 313, Cr PC. The arrest of the accused from the Bus stand also becomes doubtful in view of the fact that seizure list regarding one kara from the possession of Binay and a black coloured cap has been referred to as seized from the Bus stand whereas witnesses of both the seizure lists at the Bus stand and the place of occurrence were the same witnesses Sachidanand and Raji Prasad (Ext. 2 series). It is also no understandable why the I.O. who visited the PO immediately after the occurrence and examined the PO, failed to seize the materials found at the PO at the initial stage. It is a bit surprising that when he returned to the PO from the Bus stand, when he makes the seizure of burnt tape, piece of tin and some pieces of paper. All these facts are shrouded by mystery and in this view of the matter the arrest of accused from the Bus stand or from the hospital remains an enigma. 7. All these facts are shrouded by mystery and in this view of the matter the arrest of accused from the Bus stand or from the hospital remains an enigma. 7. Admittedly, nothing was recovered from the possession of the accused-appellants nor from their homes. If the accused appellants committed the loot of TV, transistor, certain dress materials and Rs. 1,000/- in cash, chance of recovery at least of the cash from their possession or from their houses was rated high, but nothing was recovered. So, this would also be a circumstance against the prosecution and in favour of the accused. 8. I have already stated above that Ramji Prasad and Ramesh Singh, the two PWs, examined on behalf of the accused were very much present in the room of the informant in which the alleged dacoity was committed. The evidence of the informant shows that these two persons were also victims of the alleged loot. So, these witnesses should have been brought to the TI parade to identify the culprits, but neither those witnesses were produced in the TI parade nor they had supported the prosecution case regarding the participation of the accused appellants in the alleged occurrence. So, there is no independent witness on record to support the prosecution case. Admittedly, when the informant and her son raised alarm from the roof top neighbours had gathered, as it has been stated in the evidence, but none of the neighbours had been examined to support the prosecution case. So, on the record there remains only evidence of interested witnesses, as I have already stated above. 9. Other circumstance that attracts notice is that as per the case of the prosecution and the evidence, the culprits had thrown bomb at the grill of the informants house at veranda, but I.O.s evidence does not show that there is damage to the grill. It is not understandable how the grill remained undamaged by receiving any scratch on it. When the I.O. had examined the PO specially when bomb was thrown, it is not understandable why he failed to refer to any damage upon the grill. The defence of the accused appellants was that when they were passing through the road in front of the informants house, there was some kind of explosion in which Rajendra yadav sustained injury and then he was carried to the hospital for his treatment. The defence of the accused appellants was that when they were passing through the road in front of the informants house, there was some kind of explosion in which Rajendra yadav sustained injury and then he was carried to the hospital for his treatment. The Doctors evidence has shown that other accused persons were bringing medicines to Rajendra Yadav. If Rajendra Yadav would have thrown bomb at the grill, as alleged by the prosecution there was, perhaps, no probability of his receiving any injury. No damage being found at the grill of the house of the informant also indicate that there was no bomb explosion, rather powerful crackers might have been used for explosion either by the dacoit themselves (Who ever he may be) or by any other person causing injury upon Rajendra Yadav. 10. These circumstances emerging from the evidence weakening the prosecution case and its evidence apart, I am constrained to refer to the manner of occurrence as deposed to by the witnesses. It was alleged that one of the culprits had covered his face and he had entered inside the room in which TV show was being performed and this person took out a fire arm from his pocket and asked the inmates to keep quiet. The evidence is that this very person relieved some of the persons inside the room of their personal belongings, such as, watch and ornaments and he had also handed over such articles to other culprits standing in the veranda. This manner of occurrence also is a bit unworthy of credence because normally a man who keeps watch upon the victims or takes them as hostage at the point of fire arm, does not pick up articles, rather this task is assigned to other culprits. So, the manner of occurrence is also a bit doubtful. Undoubtedly, some witnesses said that other culprits had also entered inside the room in which TV show was being watched, but there was no such statement in the fardbeyan of the informant. 11. The accused appellants took specific defence in their examination under Section 313, Cr PC. The defence of Rajendra Yadav and Mahesh was that they are mamera and fufera brothers and Rajendra Yadav had filed a case against ASP for murder of their Kith and kin. 11. The accused appellants took specific defence in their examination under Section 313, Cr PC. The defence of Rajendra Yadav and Mahesh was that they are mamera and fufera brothers and Rajendra Yadav had filed a case against ASP for murder of their Kith and kin. The defence of accused appellant Lalan Kumar is that his tea shop is at the south of Bus stand and he was known to the informant. So, his case is that in spite of the fact that he was known to the informant he was not named in the fardbeyan. The defence of Bhola Sao was that his house is situated in the same Mahalla in which the informant lived and he was known to the informants family because they used to bring articles from his ration shop. The defence of accused Binay alias Bijay was that his father was an employee of the SDO office and his uncle was DIG at Delhi. He was not taking any police officer seriously. So, he has been falsely implicated. The defence of Mahesh and Rajendra Yadav was that there was a case against ASP and, therefore, they have been falsely implicated. Whatever may be the defence of the accused-appellants under the law, they are not required to prove their case. It is for the prosecution to prove its case beyond all reasonable doubt. The discussion of the entire evidence made above leaves much room for doubt whether the prosecution came to the court with clean hands and whether the accused appellants had committed the alleged occurrence. So, I am to hold that the prosecution failed to bring home the charges to the accused beyond all reasonable doubt. There is, therefore, no alternative but to allow these appeals. These appeals are, accordingly, alleged and the order of conviction and sentence is set aside. The accused appellants shall stand acquitted.