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2001 DIGILAW 783 (PAT)

Jakir Mian @ Jakir Ahmad v. State Of Bihar

2001-08-27

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. All these three appeals arise of the judgment and order dated 28/9/2000 passed by Additional District & Sessions Judge VI, Aurangabad in S.T. No. 320 of 1999, and hence they have been heard together and are being disposed of by this common judgement. 2. Successive dacoities were committed in the house of Musafir Yadav (P.W. 3) and Tulsi Yadav (P.W. 8) in the intervening nights of 20th/21st November, 1998, in the early hours when miscreants, having scaled over the wall of the house, jumped in the courtyard, coerced the house inmates, secured keys of the boxes from them and removed their belongings which included wearing apparels, ornaments and cash. However, in the scuffle that followed between Birendera Yadav (P.W. 2) and the miscreants, the former with the assistance of the family members, namely, Kanti Devi, Kalawati Devi and Sushila Devi apprehended one of them who disclosed his name to be Jakir Ahmad and eventually disclosed complicty of Jitan Paswan, Mahendra Thakur, Munna Yadav, Kapil Bhagat and Rajaram Singh. The miscreants while retreating from the houses, also took recourse to firing and hence, no one dared to chase them. It was alleged that while associates of Jakir Ahmad, made abortive bid to rescue him, there was scuffle between the house immates and the miscreants, when Birendra Yadav and family members suffered injuries on their persons at the hands of the miscreants and with these narrations, fardbeyan of Musafir Yadav (P.W. 3) was recorded by Shri Sheo Kumar Singh, Sub Inspector of Police on strength of which, first information report was registered at (sic) (Aurangabad) Police Station. Investigation commenced and in the process of investigation, Police officer recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, got test identification parade arranged, of the suspects, and on conclusion of investigation, laid charge sheet before the Court only against the appellants, showing Jitan Paswan, Munna Yadav, and Rajaram Singh absconding, pursuant to which on being committed to the Court of Session, the appellants were put on trial. In the eventual trial, prosecution examined altogether eight witnesses, who were house inmates, some villagers and also Shri R.R. Tiwary, Judicial Magistrate (P.W. 7), who held test identification proceeding, and the trial court placing implicit reliance on the testimony of these witnesses and also regard being had to the identification of Mahendra Thakur and Kapil Bhagat, rendered verdict of guilt against the appellants under Section 395 IPC and sentenced them to suffer rigorous imprisonment for seven years which has been impugned in this appeal by the appellants having preferred three separate and distinct appeals challenging their conviction and also sentence recorded by the trial court. 3. Now adverting to the evidences placed on record, which forms basic of recording conviction against the appellants, one may first delve on the evidence of Musafir Yadav (P.W. 3) who set police in motion. The said witness while reiterating his early version which he had rendered before the Police, would state about the miscreants having gained access in the inner apartment of the house while scaling over the wall of the house, when they asssaulted Birendra Yadav and female members the house inmates too did assault the miscreants who removed house belongings and also committed successive dacoities in the house of his brother Tulsi Yadav (P.W. 8). This witness, however, would not state about disclosure made by the miscreants who was apprehended by the house inmates. 4. Surendra Yadav (P.W. 1) was sleeping in khalihan in the night of incident and he rushed to his house on alarm raised by the house inmaates. He noticed the main door of his house open and inside the house, Birendra Yadav, Sushila Devi, and his wife had overpowered one of the miscreants for whom his companions had scuffle with them to rescue him. The miscreants removed the house belongings from the house which included wearing apparels and ornaments. He stated to have sustained injuries at the hands of miscreants, Birendra Yadav and other family members of the house also suffered injuries at the hands of the miscreants and shortly after the commission of dacoity in the house, successive dacoity was committed in the house of his brother where too, the miscreants removed house belongings. He stated to have participated in the test identification parade in which he identified Mahendra Thakur and Kapil Bhagat. He identified all the three appellants in Court too. He stated to have participated in the test identification parade in which he identified Mahendra Thakur and Kapil Bhagat. He identified all the three appellants in Court too. Birendra Yadav (P.W. 2) had been to the courtyard to make water, when he noticed 3-4 miscreants, who having caught hold of him, began to assault. When his brother came for his rescue along with his father, they too did assault the miscreants. Even the villagers, who rushed to his house on alarm being raised by them, did participate in the assault of the miscreants. Dacoity was committed in the house of Tulsi Yadav also that night and he would state of having suffered loss of ornaments and cash and also wearing apparels which were removed by the miscreants. He would state about having apprehended one of the miscreants whom he identified in the Court. He too stated to have participated in the test identification parade when he identified two suspects who disclosed their names in Court to be Mahendra Thakur and Kapil Bhagat. Tulsi Yadavs (P.W. 8) was also one of those houses, that was ransacked by the miscreants that night and he would narrate that after the miscreants gained their access in the inner apartment of the house having scaled over the wall of the house, one of them dealt blows on his with butt of the gun on his legs. They tied his hands and threatened him to kill. They secured keys of the boxes from him and removed house belongings including ornaments and cash. He claimed identificiarion of the miscreants in the light of lantern that was burning in the house. One of the miscreants was apprehended in the house of his brother who was made over to the Police. He too claimed to have participated in the test identification parade in Aurangabad jail when he identified both Mahendra and Kapil. The withnesses identified the appellants in Court. 5. Shri R.R. Tiwary, Judicial Magistrate, happened to be P.W. 7 who stated to have held test identification parade inside Aurangabad Jail on 14th December, 1998, when Mahendra Thakur was identified by Birendra Yadav (P.W. 2). He would state that Mahendra Thakur and Kapil were identified by both Surendra (P.W. 1) and Tulsi Yadav (P.W. 8). 5. Shri R.R. Tiwary, Judicial Magistrate, happened to be P.W. 7 who stated to have held test identification parade inside Aurangabad Jail on 14th December, 1998, when Mahendra Thakur was identified by Birendra Yadav (P.W. 2). He would state that Mahendra Thakur and Kapil were identified by both Surendra (P.W. 1) and Tulsi Yadav (P.W. 8). Ajay Yadav (P.W. 4) and Jagan Yadav (P.W. 5) and Narain Yadav (P.W. 6) would state about commission of dacoity in the house of Musafir Yadav and Tulsi Yadav in the night of the incident when one of the miscreants was apprehended by them who was eventually made over to the Police. This is all the evidence that has been adduced on behalf of the State. 6. Twin arguments were canvassed on behalf of the appellants to assail the findings recorded by the trial court and it is urged on behalf of appellant Jakir Ahmad that though this appellant was shown to have been made over to the Police shortly after the incident, as the Police officer who is supposed to have taken the appellant in custody, was not examined at trial, the prosecution version on this score about apprehension of the appellant has to be discarded. 7. Contentions were raised that though Birendra Yadav, Kanti Devi, Kalawati Devi and Sushila Devi were suggested to have sustained injuries at the hands of the miscreants when the blood dropped from their wounds, neither the injury report was placed on the record nor the doctor was ever examined at trial and to crown all, as the Police Officer was not examined by the State, there was no objective finding about there being blood stains in the house. The next limb of the argument canvassed on behalf of the appellants was that though Ajay Yadav, Jagan Yadav and Narain Yadav were shown to have suffered injuries at the hands of the miscreants during scuffle with them, none of them though examined at the trial, would lend assurance to the prosecution allegation about identification of the appellants, and consequently apprehension of appellant Jakir by them. The failure of the I.O. to seize the torch which was suggested to be the source of identification and its eventual production in Court at trial was also taken to be a ground to discard the prosecution version and the last argument canvassed on behalf of the appellants was that while the appellant Jakir was on his way to some destination, he was apprehended on some false pretext of commission of dacioity in the house of Tulsi. 8. More or less common arguments were adopted by the learned counsel for appellants Mahendra Thakur and Kapil Bhagat and also about non-examination of the Police Officer who carried out investigation of the case, there being no injury report on the record and also the doctor having not been examined at the trial and there being paucity of independent witnesses and the prosecution having examined only those who were interested in the affairs of the prosecution entirely to the exclusion of independent witnesses. The learned counsel would urge that if the evidence of Tulsi Yadav (P.W. 8), as transpiring in paragraphs 2 and 6 of his evidence, was taken to be true on its face value, the miscreant, who was identified by him, remained seated with him while others trespassed in the house of his brother Musafir Yadav and it is urged that if this part of the evidence of Tulsi Yadav was taken to be true on its face value, possibility of identification of other appellants by him was extremely remote. My attention was also dwn to suggestion given to some of the witnesses about appellants having been confined in thana premises for 2-3 days when they were shown to the witnesses. 9. Identification of the appellants was based on two premises. There is early version of Musafir Yadav which was rendered before the Police and if his statement was considered to be true on face value, Jakir Ahmad was apprehended during commisssion of dacoity in the house of Musafir Yadav by the house inmates and that is the evidence of the house inmates also. There is early version of Musafir Yadav which was rendered before the Police and if his statement was considered to be true on face value, Jakir Ahmad was apprehended during commisssion of dacoity in the house of Musafir Yadav by the house inmates and that is the evidence of the house inmates also. The witnesses who were examined by the State at trial claimed his identification in the Court too and simply because the Police Officer who is suggested to have been given custody of the appellant, was not examined at trial by the State, the entie prosecution case could not be brushed aside, as had the Police Officer been examined, he would have been a witness only about the custody of the appellants and not about his identification by the house inmates. 10. The other premises on which identification of two appellants, namely, Mahendra Thakur and Kapil Bhagat was suggested was their identification in the test identification parade in Aurangabad Jail by the house-inmates and those who participated in the test identification proceeding were Surendra Yadav (P.W. 1), Birendra Yadav (P.W. 2) and Tulsi Yadav (P.W. 8). Though Birendra Yadav (P.W. 2) was claiming identification of both Mahendra and Kapil, it would appear from the test identification proceeding and also the evidence of the Magistate who held the test identification parade that only Mahendra was identified by Birendra Yadav (P.W. 2). Be that as it may, there was identification of Mahendra Thakur by P.W. 2 during test identification proceeding. Identification of Kapil Bhagat was claimed by Surendra Yadav (P.W. 1) and Tulsi Yadav (P.W. 8) during the said test identification parade that was arranged in Aurangabad Jail on 14.12.1998. No valid arugments were canvassed by the learned counsel for the appellants either to suggest irregularity in the test identification proceeding or, identification of the appellants having vitiated on other counts, though a bald suggestion was given to the witnessess about the appellants having been shown to them preceding holding of test identification parade. But except bald suggestion, no positive evidence was ever led on behalf of the appellants to buttress the defence raised at bar on behallf of the appellants. Hence there appears no good reason nor sound reasoning to reject the testimony of the witnesses who claimed identification of the appellants in test identification proceeding. But except bald suggestion, no positive evidence was ever led on behalf of the appellants to buttress the defence raised at bar on behallf of the appellants. Hence there appears no good reason nor sound reasoning to reject the testimony of the witnesses who claimed identification of the appellants in test identification proceeding. Though occurrence took place in the night of 20th November, 1998 and test identification parade was held after about 24 days and true it is that the human memory is not infallible, yet I find no mitigating evidence to militate against identification of Mahendra Thakur and Kapil Bhagat by Surendra Yadav (P.W. 1), Birendra Yadav (P.W. 2) and Tulsi Yadav (P.W. 8), particularly when no animosity is attributed to the identifying witnesses and it is not a case of mistaken identification. Now coming to the criticism made on behalf of the appellants, I find them equally meritless in view of the fact that non-examination of the female members who are shown to have sustained injuries on the person in the said transaction would not render the witness unworthy of credence. Equally true, non-examination of the doctor was not such mitigating circumstance which would militate against the factum of commission of dacoity in the house of Musafir and Tulsi in the night of the incident and lastly non- examination of independent witnesses of the village, equally, would not introduce any infirmity in the prosecution case in view of clinching evidence of the house inmates about identification of appellant Jakir Ahmad during transaction of commission of dacoity and also identification of other two appellants in test identification proceeding. Though the appellants were shown to have been identified by them in the flash light of torch and also lantern that was burning in the house and equally true it is that the torch was not produced at the trial but that too in my view would not render the entire prosecution case unworthy of credence. Lastly, learned counsel for the appellants would urge that since the appellant have remained in custody fo a longer period, a lenient view may be taken by the Court while awarding sentence to them. However, this fact cannot be lost sight that the appellants are teenagers and in view of serious atributions levelled against them, I do not feel myself pesuaded to take a lenient view to reduce the sentence awarded by the trial court. However, this fact cannot be lost sight that the appellants are teenagers and in view of serious atributions levelled against them, I do not feel myself pesuaded to take a lenient view to reduce the sentence awarded by the trial court. Accordingly, the judgement of conviction and order of sentence as awarded by the trial Court are affirmed and all the three appeals fail.