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2001 DIGILAW 735 (PAT)

Md. Akbar v. State Of Bihar

2001-08-14

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Appellant along with Md. Isha and Munna alias Baltha was tried for an offence punishable under Section 395 of the Indian Penal Code (IPC). However, the trial Court, suspecting complicity of Md. Isha and Munna alias Baltha while acquitted them of the charges, rendered verdict of guilt against the appellant finding him guilty under Section 395 IPC and sentenced him to suffer rigorous imprisonment for four years. 2. Shorn of details, the first information report of the case was drawn up on the strength of fardbeyan of Jaldhari Mahto (PW 10) alleging therein that on 28th of November, 1988, miscreants including the appellant ransacked some petty shops and gumti in the vicinity of Dipak Cinema at Muzaffarpur, did assault the shopkeepers, scattered their belongings here and there and relieved them of the sale proceeds. After the Police was set in motion, investigation commenced. During pendency of investigation Police recorded statement of witnesses and laid charge sheet before the Court and the appellant, along with others on being committed to the Court of Session, was eventually put on trial. In the eventual trial, the State examined altogether ten witnesses and those examined by the prosecution include also some of the petty shopkeepers who allied to have been relieved of their sale proceeds by the miscreants. 3. Now adverting to the evidence led on behalf of the State, one would find that Ram Ekbal Singh (PW 1), Md. Aslam (PW 2), Md. Karim Akhtar (PW 3), and Jagaranth Mahto (PW 8) had turned volte face to the prosecution lending no assurance to the prosecution assertion about any dacoity committed in the shops which situate near Dipak Cinema and their attentions were consequently drawn towards early version which they rendered before the Police. Ayuub (PW 4) and Ritlal Mahto (PW 9) were tendered by the prosecution and there was nothing material in their evidences to merit consideration. Now, prosecution is left with the evidence of Raghunath Kunwar (PW 5), Sohan Sah (PW 6), Babuni Devi (PW 7) and Jaldhari Mahto (PW 10) to lend corroboration in support of the allegations that were attributed to the appellant. Raghunath Kunwar (PW 5) has a shop in the vicinity of Dipak Cinema and he would state that the miscreants visited premises taking recourse to firing and relieved his father of the sale proceeds. Raghunath Kunwar (PW 5) has a shop in the vicinity of Dipak Cinema and he would state that the miscreants visited premises taking recourse to firing and relieved his father of the sale proceeds. The shops of others were also ransacked by them who were relieved of their sale proceeds. The witnesses claimed to have identified only the appellant. Sohan Sah (PW 6) also has his shop near Dipak Cinema. He would state that the miscreants came exploding bombs and they scattered the belongings of the shops and relieved him of the sale proceeds of the day. He too claimed to have identified only the appellant. This witness was not examined by the defence and hence there was no mitigating evidence on record to controvert the accusations attributed to the appellant. Babuni Devi (PW 7) sells groundnuts beside Dipak Cinema and she too was made victim of the wrath of the miscreants on that day when they ransacked several shops. She too claimed to have identified only the appellant among them. Jaldhari Mahto (PW 10) was the person who set the Police in motion and he would reiterate the narrations made by him before the Police about the miscreants having ransacked the shops that situates in the vicinity of Dipak Cinema. The miscreants were exploding bombs and relieved the shopkeepers of the sale proceeds. He stated to have suffered a loss of Rs. 362/- at the hands of miscreants. He too claimed to have identified only the appellant. This is all the evidence that has been adduced on behalf of the State. The defence too examined one witness, namely, Md. Salim to show that the case was instituted by the informant at the instance of one Rajkumar. 4. The trial Court on appreciation of evidences placed on the record which has been discussed, while suspecting complicity of other accused, acquitted them of the charges, rendered verdict of guilt against appellant alone which is sought to be assailed by the learned counsel for the appellant in this appeal. Contentions were raised that though the occurrence took place on the 28th November, 1988 and the first information report too was drawn up on the same day, it was not before the 1st December, 1988, as would appear from the endorsement made by the Chief Judicial Magistrate, that the first information report was transmitted to the Court. Contentions were raised that though the occurrence took place on the 28th November, 1988 and the first information report too was drawn up on the same day, it was not before the 1st December, 1988, as would appear from the endorsement made by the Chief Judicial Magistrate, that the first information report was transmitted to the Court. It is also sought to be urged that though some big shops too situate near Dipak Cinema, where the miscreants might have good prospect to rob them, their shops are not said to have been ransacked by the miscreants and it is quite unlikely that the miscreants would ransack the small shopkeepers for petty gains. Contentions were raised that even some of the shopkeepers whose shops were said to have been ransacked by the miscreants, have not lent assurance to the prosecution allegation about complicity of the appellant and credibility of the prosecution case has to be discarded on that score alone and the last argument canvassed at Bar on behalf of the appellant was that though complicity of Md. Isha and Md. Akbar too was suggested in the early version of the informant Jaldhari Mahto, as no credible evidence was led to draw conclusion about their complicity, the complicity of the appellant would become quite suspect and the prosecution case deserves to be discarded on that count. Learned counsel for the State would counter the arguments raised on behalf of the appellant. 5. As has been discussed, Jagarnath Mahto (PW 8), whose shop too was shown to have been ransacked by the miscreants, had turned volte fact to the prosecution and Ritlal Mahto (PW 9) was tendered by the State who was also one of the victims. This does not require repetition that Sohan Sah (PW 6) is also one of the victims who has lent assurance about complicity of the appellant. If evidences of Raghunath Kuer, Sohan Sah (PW 6), Babuni Devi (PW 7) and Jaldhari Mahto (PW 10) is taken into consideration, their evidences unerringly suggest complicity of the appellant. This does not require repetition that Sohan Sah (PW 6) is also one of the victims who has lent assurance about complicity of the appellant. If evidences of Raghunath Kuer, Sohan Sah (PW 6), Babuni Devi (PW 7) and Jaldhari Mahto (PW 10) is taken into consideration, their evidences unerringly suggest complicity of the appellant. Though my attention has been drawn by the learned counsel for the appellant about evidence of Babuni Devi (PW 7), who admitted to have not rendered similar statement before the Police about complicity of the appellant and also that Investigating Officer was not examined at the trial evidences of other witnesses, however, cannot be read in isolation and have to be considered in the backdrop of the totality of the evidences placed on record. True it is that the Investigating Officer of the case was not examined at the trial but that alone would not render the prosecution case to be a casualty. True it is that some of the shopkeepers whose shops were ransacked by the miscreants were npt examined at trial but as has been discussed, the evidences placed on record to not negate the complicity of the appellant. Though some sort of enmity has been introduced in the evidence adduced on behalf of the appellant and also some documents Exhibits A and A/1 were placed on the record but the trial Court rightly did not give credence to these documents. It is admitted that the occurrence took place in the night of 28th November, 1988 and the evidences placed on record do show that the endorsement on the first information report was made by the Chief Judicial Magistrate on 1st December, 1988 but belated production of the first information report before the Chief Judicial Magistrate would not constitute any infirmity in the prosecution case for the simple reason that the prosecution was launched against the appellant with all promptitude and without delay and hence the first information report cannot be considered to be a tainted document. 6. Considering the evidences placed on record and the contentions raised at Bar on behalf of the appellant, I find that there being no mitigating circumstances to counter the allegations attributed to the appellant, the trial Court has rightly rendered verdict of guilt against him which is upheld. Since the sentence too does not appear to be severe, that also does not call for any interference. Since the sentence too does not appear to be severe, that also does not call for any interference. This appeal is accordingly dismissed. The bail bond of the appellant is cancelled and he is directed to surrender forthwith to serve the sentence. Trial Court is also directed to take all coercive steps to ake the appellant in custody to serve he sentence.