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2001 DIGILAW 597 (PAT)

Binod Giri v. State Of Bihar

2001-07-19

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. In Criminal Appeal No. 25 of 1990 an affidavit has been filed on behalf of the sole appellant, Shambhu Mishra that he died on 29th October, 1999, during the pendency of the appeal. In this view of the matter this appeal stands abated. 2. All the appellants of Criminal Appeal No. 21 of 1990 have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 8 years. Appellants Binod Giri and Raghubar Sah have been further convicted under Section 412 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 8 years. However their sentences have been ordered to run concurrently. 3. The prosecution case as narrated by PW 10, the informant Diwakar Giri in brief is that in night of 25.2.1971 about 20 to 25 dacoits armed with torch, gun etc. came at the house of informant and after breaking open the door of the room they entered into his house and took away cash, ornaments, gun and rifle and they left one country made pistol and Khanti which belonged to them. It has been further alleged that they broke open the box, almirah etc. of his house and dug the ground and took away cash etc. kept under earth and the iron safe was also got opened from which.cash, ornaments golden and silver coins of the time of Victoria and King George were looted away by them. Some ornaments and utensils were also taken away them. The dacoits assaulted some servants of the informant who were sleeping at his Darwaza. It has been also alleged that there was hand of one Ram Prasad Giri servant of the informant in this dacoity and he was not assaulted by the dacoits. The detailed list of articles, clothes, coins (gold and silver) was given in the FIR. The fardbeyan of the informant was recorded at Ramnagar PS and FIR was drawn up. After completion of the in- vestigation the Police submitted charge-sheet against the appellants. Cognizance was taken and the case was committed to the Court of Sessions where the trial concluded with the result as stated above. 4. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. After completion of the in- vestigation the Police submitted charge-sheet against the appellants. Cognizance was taken and the case was committed to the Court of Sessions where the trial concluded with the result as stated above. 4. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. The prosecution examined altogether 15 witnesses including the informant (PW 10) PW 1 is Hari Yadav, PW 2 is Bengali Giri, he has been declared hostile, PW 3 is Bishwa Nath Giri PW 4 is Hari Kumhar, a tendered witness. PW 5 is Jalesher Ahir, PW 6 is Sitaram Sao, a tendered witness, PW 7 is Mithu Giri, PW 8 is Hira Sah, PW 9 is Satyadeo Prasad, who had held T.I. Parade, PW 10 is Diwakar Giri (informant), PW 11 is M.P. Mishra, he had also conducted T.I. Parade of three suspects including the appellant Shri Ahir, PW 12 is Anirudh Mishra, he held T.I. parade of stolen articles so recovered, PW 13 is Gorakh Prasad, a retired Police Inspector, he got recorded the fardbeyan of PW 10, PW 14 is Ranvir Singh and PW 15 is Vyasdeo Prasad, both are formal witnesses. 5. The defence also examined DW 1 Bikram Giri. He was examined to prove that the appellant Shri Ahir once was instrumental in damaging the horns of bullock of the informant for which a Panchayati was held and he had to give Rs. 500/- to the informant. 6. On the factum of dacoity the prosecution examined PWs 1, 3. 7, 8 and 10. Although PW 1 has supported the factum of dacoity but he denied to have identified any of the dacoits. PW 3 who was at the time of occurrence at the darwaja of Kapildeo Giri father of the informant has stated that 20 to 25 dacoits came there and they looted the articles. According to him a lantern was burning and torch was also flashed by the dacoits. That apart, the villagers set on fire the hut and in the light of that he identified the dacoits. He identified two dacoits namely Raghubar Sah and Shri Ahir in T.I. Parade and also he identified them in the Court and stated that they assaulted him with lathi. That apart, the villagers set on fire the hut and in the light of that he identified the dacoits. He identified two dacoits namely Raghubar Sah and Shri Ahir in T.I. Parade and also he identified them in the Court and stated that they assaulted him with lathi. PW 7 has stated that while he was sleeping at the Darwaja of informant where co-accused Ram Prasad was also sleeping, 5/7 dacoits came there and they talked with co-accused. Thereafter five dacoits came near him, they assaulted him with lathi and rest of the dacoits entered in the room of the informant and started looting the articles. He claims to have identified appellant Binod Giri and co-accused Mohan Giri. In cross-examination he has stated that when the hut was set at fire he identified appellant Binod Giri. PW 8 has stated that he came at the place of occurrence on the sound of firing of gun and learnt that dacoity was being, committed in the house of the informant. By that time other villagers had also assembled there and he claims that in the light of lantern and torch he identified some of the dacoits. There were 20/25 dacoits. He participated in the T.I. Parade thrice and identified the suspected accused in which one of them was appellant Raghubar Sah and Shambhu (since dead). He has been cross-examined at length but nothing could be brought in favour of the defence. 7. PW 10, Diwakar Giri (informant) has fully supported the case of the prosecution as narrated in the First Information Report. He has stated that 20/25 dacoits armed with gun and rifle came about 8 Oclock in the night. They divided themselves in two groups and entered the house. At that time PW 3, co-accused, Ram Prasad (servant) and PW 7 were sleeping at the Darwaja and dacoits. started assaulting them and they had a conversation with the co-accused Ram Prasad. The dacoits entered the house from the main gate which was open and inmates were busy in night dinner. Having seen the dacoits the lady members of the house left the house and came out from the back door. According to him the dacoits entered the room of his father and broke open iron safe and they tool all the valuables including Asharfi. Silver Coins and jewellery etc. Having seen the dacoits the lady members of the house left the house and came out from the back door. According to him the dacoits entered the room of his father and broke open iron safe and they tool all the valuables including Asharfi. Silver Coins and jewellery etc. It was also alleged that a rifle of 375 bore and double barrel gun along with huge quantity of cartridges were also looted by the dacoits. He has also stated that the dacoits had left a country made pistol loaded with cartridges and Khanti and a bag of Khaki colour in the room of his father. According to him the dacoits looted the articles from the room of his father and also from the room of his brother Suresh. According to him, the villagers who had assembled there set on fire the hut of Jagannath Tiwari for the purpose of lighting which annoyed the dacoits and they came out and the fire was extinguished. It has been alleged that on persuasion of co- accused Ram Prasad the dacoits again went inside the room and started looting. The witnesses PWs 3, 7 and 8 had identified appellant Binod Giri and Shri Ahir. He has stated that when the dacoits started to flee co-accused Ram Prasad also went with thern. However, he has stated that he was not present at his house when the dacoits entered in the house rather he was in village Bergaon Chamaria which is 1-1/2 mile away from his village. After getting information he rushed to his house and when he reached to the house the dacoits were going out flashing their torch light. He went to the Police Station and got the statement recorded and also gave the list of articles. Thereafter again he submitted supplementary list of stolen articles. He has stated that the witnesses Hira Giri, Mithu Giri and Bishwa Nath Giri informed him that they could identify appellant Binod in the light of lantern and torch. They also claimed to identify other dacoits if they see their faces. In cross-examination he has denied the suggestion that he has falsely implicated appellant Binod since his father had filed a Title Suit in 1940 against his father. The other important witnesses are PWs 9 and 11 who had held T.I. Parade of the suspects including the appellants. They also claimed to identify other dacoits if they see their faces. In cross-examination he has denied the suggestion that he has falsely implicated appellant Binod since his father had filed a Title Suit in 1940 against his father. The other important witnesses are PWs 9 and 11 who had held T.I. Parade of the suspects including the appellants. PW 9 has stated that PW 2 who turned hostile had identified appellant Raghubir Sah in the T.I. Parade which was held on 26.5.1971 PW 11 has stated that he held T.I. Parade of appellant Raghubir Sah and Shri Ahir along with other suspects on 27.4.1971 in which Bishwa Nath Giri identified appellant Raghubir Sah and Shri Ahir. PW 12 has proved the T.I. Chart and stated that PW 10 identified a torch of three cells and also a Kaskut plate. PW 13, the Investigating Officer has proved the fardbeyan recorded by Lalan Prasad on which he and informant had signed, he has stated that he inspected the place of occurrence and saw that the things were scattered in the room. He also found country-made pistol, cartridges and Khanti etc. left by the dacoits in the room of the father of the informant. He also searched the house of the suspect accused from where ornaments, coins and jewellery were recovered. He also sent the witnesses PWs 2, 3. 5 and 7 the injured to the doctor for treatment. 8. Learned counsel appearing on behalf of the appellants has submitted that the prosecution has failed to establish the factum of dacoity in the house of the informant. But the prosecution has examined as many as six witnesses on the factum of dacoity and they all have supported the case of the prosecution. They are eyewitnesses. They came after hulla and saw the commission of dacoity. PW 2 though declared hostile, supported the factum of dacoity and stated that he heard the sound of gun firing, came there and saw the commission of dacoity but he could not identify the appellants. The I.O. has specifically stated that during the investigation this PW 2 named appellant Binod Giri and he claimed that he identified him during the commission of dacoity. Thus, the prosecution has established that the dacoity was committed and some of the witnesses were injured. The I.O. has specifically stated that during the investigation this PW 2 named appellant Binod Giri and he claimed that he identified him during the commission of dacoity. Thus, the prosecution has established that the dacoity was committed and some of the witnesses were injured. So far the recovery of stolen articles is concerned, recovery has not been made against appellant Binod Giri and PW 13 has stated that recovery was made not from this appellant Binod Giri rather some of the articles were recovered from the house of co-accused Jyoti Shankar Giri. It is true that no recovery of stolen articles was made from the house of appellant Binod. However, it was alleged that he was staying in the house of Dhrub Giri. Learned counsel has submitted that the T.I. Parade was held after 1-1/2 months so there is no value of the T.I. Parade which was held after such a belated stage. It is alleged that the dacoits remained in the house of the informant for about 3/4 hours during commission of dacoity and in the meantime the villagers came and set fire in the hut and the dacoits were identified by the witnesses. The witnesses had enough time to watch their activities and the T.I. Parade was held after 1-1/2 months that is after 45 days which is not a long period to forget the faces of the persons who remained in the house during the commission of dacoity lasting for 3/4 hours. From the deposition of the I.O. it is apparent that he did not produce the articles so recovered and seized in the Court. But there is nothing on the record to show that the articles were handed over to the informant. 9. From the discussions made above. I find that the prosecution was able to prove that dacoity was committed in the house of the informant in which the appellants had participated and were identified by some of the witnesses. The witnesses who had identified the appellants are natural and competer it. The Court below has rightly held them guilty for the offence punishable under Section 395 of the Indian Penal Code. However, on the point of recovery of stolen articles the prosecution could not prove that any article recovered was from the house of the appellants. The witnesses who had identified the appellants are natural and competer it. The Court below has rightly held them guilty for the offence punishable under Section 395 of the Indian Penal Code. However, on the point of recovery of stolen articles the prosecution could not prove that any article recovered was from the house of the appellants. As such, the appellants cannot be held guilty for the offence punishable under Section 412 of the Indian Penal Code. Accordingly, they are acquitted of the charge levelled against them under Section 412 of the Indian Penal Code. So far the conviction of the appellants under Section 395 is concerned, I do not find any ground to interfere with their conviction. 10. As the appellants are first offenders and there is single identification against them and the occurrence took place about 30 years ago, considering this aspect of the matter and in the facts and circumstances of the case the sentence of rigorous imprisonment for 8 years is reduced to 5 years. With the aforesaid modification in the order of conviction and sentence Criminal Appeal No. 21 of 1990 is allowed in part and Criminal Appeal No. 25 of 1990. as already stated, stands abated.