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2001 DIGILAW 898 (PAT)

Prakash Kahar And Another v. State Of Bihar

2001-09-21

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. Cr. Appeal No. 210 of 1990 filed on behalf of Prakash Kahar and Cr. Appeal No. 234 of 1990 filed on behalf of Shailendra Kahar @ Kaua arise out of one and the same judgment and order dated 24-5-1990 passed by Shri B.N. Sinha, VIIth Additional Sessions Judge, Nalanda at Bihar sharif and similar question of law and facts are involved in both the appeals and hence they have been heard together and are going to be disposed of by this common order. 2. The appellants and one Aley Hussain, who is not appellant here, were convicted under Secs. 395 and 412 of the Indian Penal Code hereinafter to be referred to as the Code and they were sentenced to undergo rigorous imprisonment for ten years each under Sec. 395 of the Code, no sentence having been awarded under Sec. 412 of the Code. 3. It would be relevant and convenient to re-produce in brief the facts of the case. The informant Satya Narayan Jaiswal (P.W. 5) was at about 11.50 a.m. on 23-1-1989 along with his salesman Anugrah Prasad (P.W. 4) carrying a sum of Rs. 56,282 with pay in ship in a bag for depositing the same in the State Bank of India, Hilsa Branch. No sooner had the informant (P.W. 5) and his salesman (P.W. 4) reached near Shabnam Shoe Store on the main road of Hilsa than 5-6 miscreants intercepted them and one of them put pistol on the chest of P.W. 5 and one of the associates caught hold of his hand and the other one snatched away his bag containing the aforesaid amount of money and pay in slip and thereafter, all the miscreants fled away along eastern lane from the main road. P.W. 5 raised alarm of dacoit/dacoit and rushed to police station. He claimed to have identified the appellant Shailendra Kahar, Anil Sao and Bhutali Kahar from amongst the miscreants. He also claimed to have ioentified other miscreants by face. The statement of P.W. 5 was recorded on the basis of which the formal F.I.R. was drawn up and Hiisa RS. Case No. 21 of 1989 giving rise to the instant case was registered. He also claimed to have ioentified other miscreants by face. The statement of P.W. 5 was recorded on the basis of which the formal F.I.R. was drawn up and Hiisa RS. Case No. 21 of 1989 giving rise to the instant case was registered. A police party headed by Sant Kumar Singh (P.W. 10), who was the Officer-in-charge of Hilsa Police Station set out to apprehend the miscreants and it succeeded in apprehending the appellants Shailendra Kahar @ Kaua, Binod Prasad and Prakash Kahar and accused Aley Hussain. The informants bag containing the cash worth Rs. 56,282 along with pay in slip was recovered and seized from possession of the accused Aley Hussain while a countrymade pistol and cartridges were recovered and seized from possession of the appellants Binod Prasad and Prakash Kahar respectively. 4. P.W. 10 took up investigation and after completing investigation he submitted the chargesheet and finally the trial commenced after commitment. 5. The accused Anil Sao and Bhutan Kahar absconded and they could not be tried in the instant case. 6. The appellants did not enter into defence. However, from trend of cross-examination of the prosecution witnesses and the statements of the appellants recorded under Sec. 313 Cr. P.C. the defence seemed to be that of total denial and false implication. 7. Quite a good number of witnesses were examined by the prosecution. The learned Additional Sessions. Judge after taking the facts, circumstances and evidence brought on records into account found and held the appellants guilty and he convicted and sentenced them under Secs. 395 and 412 of the Code, acquitting them of the charge under Sec. 397 of the Code vide the impugned judgment and order. 8. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the present appeals. 395 and 412 of the Code, acquitting them of the charge under Sec. 397 of the Code vide the impugned judgment and order. 8. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the present appeals. They assailed the impugned judgment and order of conviction and sentence by contending that it was not based on law and facts and correct appreciation of evidence; that the evidence brought on records was contradictory and discrepant and no conviction could be based on such evidence and that the accused Anil Sao and Bhutali Kahar, who earlier absconded were later on tried and acquitted in Sessions Trial No. 86 of 1996 and Sessions Trial No. 207 of 1997 and as two persons out of six who were said to be involved and participants in the commission of dacoity were acquitted the remaining four persons including the appellants were also entitled to acquittal. 9. The informant Satya Narayan Jaiswal (P.W. 5), Nagendra Prasad (P.W. 2) and S.K. Singh, Investigating Officer (P.W. 10) were the most competent witnesses in the case and as such their evidence assumed important significance. P.W. 5 supported the prosecution case in its entirety by stating on oath that at about 11.45 A.M. on 23-1-1989 he along with his salesman Anugrah Prasad (P.W. 4) was carrying cash worth Rs. 56,282 with pay in slip in a bag for depositing the same in the State Bank of India, Hilsa Branch and no sooner had he arrived near Shabnam Shoe Store on the main road, that is Hilsa-Ekangarsarai Road than six miscreants intercepted and surrounded him and one of them put pistol on his chest while one another miscreant caught hold of hand and still another from amongst the miscreants snatched away his bag containing the money and pay in slip and thereafter all the miscreants fled away towards the eastern lane. He raised alarm of dacoits and rushed to Hilsa Police Station situated just 100 yards away from the scene of incident. The witness claimed to have identified the appellant Shailendra Kahar and the accused Anil Sao and Bhutali Kahar from amongst the miscreants all of whom were residents of Hilsa. P.W. 5 also resided and carried on business at Hilsa. He raised alarm of dacoits and rushed to Hilsa Police Station situated just 100 yards away from the scene of incident. The witness claimed to have identified the appellant Shailendra Kahar and the accused Anil Sao and Bhutali Kahar from amongst the miscreants all of whom were residents of Hilsa. P.W. 5 also resided and carried on business at Hilsa. It is also in his evidence that his statement was recorded at the police station and he put his signature (1/4) thereon and soon the police swung into action and a police party headed by P.W. 10 set out to apprehend the miscreants. 10. The informant (P.W. 5) also followed the police party that set out to nab the miscreants and in the process he reached near the house of the accused Anil Sao where he happened to see that the Sub-Inspector of Police meaning thereby P.W. 10 had arrested the appellant Shailendra Kahar with a Motorcycle and soon after handing over Shailendra Kahar to some other police personnel P.W. 10 climbed the roof of the house of Anil Sao as its both the doors (western and northern) were closed and he got down inside the house and opened the western door and called the armed forces inside the house and arrested and brought outside three miscreants who disclosed their names as Aley Hussain, Binod Prasad and Prakash Kahar and his bag containing cash and pay in slip was recovered and seized from possession of the accused Aley Hussain while a countrymade pistol and cartridges were recovered and seized from possession of the accused Binod Prasad and the appellant Prakash Kahar respectively. The intact cash worth Rs. 56,282 of various denominations and pay in slip of the S.B.I, were found in the bag. P.W. 5 identified the bag (material Ext. 1), his signature (Ext. 2) on pay in slip and different bundles of currency notes of various denominations (material Exts. II to II/6). 11. P.W. 5 identified the appellants and other accused persons in the Court. He admitted he did not identify any of the accused on T.I. Parade. The fact was that the appellants along with other accused were arrested by the police in the house of Anil Sao and looted cash, bag etc. along with pistol and cartridges were recovered and seized from their possession. He admitted he did not identify any of the accused on T.I. Parade. The fact was that the appellants along with other accused were arrested by the police in the house of Anil Sao and looted cash, bag etc. along with pistol and cartridges were recovered and seized from their possession. Besides P.W. 5 identified the appellants and other accused at the time of commission of dacoity and again in the Court. Under the circumstance, the aforesaid statement of P.W. 5 regarding non-identification of the accused on T.I. Parade cannot lead to an inference that the prosecution case in regard to identification was rendered doubtful. 12. The police officer (P.W. 10) stated that at 11.50 a.m. on 23-1-1989, P.W. 5 went to him at the police station where his statement was recorded and soon thereafter he along with other police personnel rushed to apprehend the miscreants and in the process they reached near the house of accused Anil Sao, where the accused Shailendra Kahar was seen sitting on a motorcycle and was trying to run away but he was arrested and on interrogation he disclosed that the other miscreants who were his associates were hidden in the house of Anil Sao. The informant (P.W. 10) arrested the appellant Shailendra and handed over him to the other police personnel and he entered into the house of Anil Sao after climbing the roof, opened the door, called armed forces inside the house, arrested the appellant Prakash Kahar, and the accused Binod Prasad and Aley Hussain from a latrine where they had hid themselves. He also testified to recovery of bag containing the cash and pay in slip from possession of Aley Hussain and recovery and seizure of pistol and cartridges from possession of Binod Prasad and Prakash Kahar respectively and preparation by him of seizure lists (Exts. 6 and 6/1) in respect of aforesaid cash, pistol and cartridges as well as Motorcycle in presence of witnesses who also put their signatures thereon. It is in his evidence that copies of seizure list were given to all the arrested miscreants and one copy was handed over to the brother of the accused Anil Sao. He produced the Motorcycle in the Court and it was marked material Ext. III. He said the Motorcycle belonged to the appellant Shailendra Kahar. 13. Investigation was taken up by P.W. 10. He produced the Motorcycle in the Court and it was marked material Ext. III. He said the Motorcycle belonged to the appellant Shailendra Kahar. 13. Investigation was taken up by P.W. 10. He inspected both the places of occurrence, one at Hilsa-Ekangarsarai Road near Shabnam Shoe Store and the other the house of the accused Anil Sao and gave vivid description of the same. It is also in his evidence that the accused persons sustained some injuries in course of their arrest. He got recovered articles as well as the accused persons put on T.I. Parade. He was cross-examined at length but nothing material adversely affecting the core or edifice of the prosecution case was elicited in his cross-examination. 14. Another important eye-witness was P.W. 2 Nagendra Prasad. He stated that at about 11.45 a.m. on 23-1-1989 he was going to Allahabad Bank, Hilsa Branch and when he reached hear Shabnam Shoe Store enroute to the Bank he happened to see that six miscreants had surrounded P.W. 5 among whom he identified the appellant Shailendra Kahar and the accused Anil Sao and Bhutali Kahar He further stated one of the miscreants caught hold of P.W. 5 while one another put pistol on him and still one another snatched away bag from his hand and all the miscreants ran away in the eastern lane and P.W. 5 ran away to the Police Station, Hilsa and soon the police party set out to apprehend the miscreants. P.W. 2 also followed the police personnel and reached near the house of Anil Sao. His evidence on arrest of the appellant Shailendra Kahar with Motorcycle, entry of P.W. 10 in the house of Anil Sao, arrest of the appellants Prakash Kahar, Binod Prasad and Aley Hussain from the latrine in the aforesaid house of Anil Sao, recovery and seizure of bag, cash, pay in slip, pistol, cartridges and motorcycle and preparation seizure lists in respect thereof in presence of independent witnesses and making over copies thereof to the accused was identical to that of P.W. 5 and P.W. 10. The witness (P.W. 2) put his signatures (Ext. 1 and 1/2) on the seizure lists. He further stated that Yogendra Sharma also witnessed recovery and seizure and preparation of seizure list (Ext. 6 and 6/1) and he proved the signature of Yogendra Sharma (Ext. The witness (P.W. 2) put his signatures (Ext. 1 and 1/2) on the seizure lists. He further stated that Yogendra Sharma also witnessed recovery and seizure and preparation of seizure list (Ext. 6 and 6/1) and he proved the signature of Yogendra Sharma (Ext. 1 and 1/3) on the seizure lists, P.W. 2 identified the appellants and other accused persons in the Court. 15. Rama Nand Gupta (P.W. 3) was also an eye-witness of the incident. He stated that at about 12.00 noon on 23-1-1989 while he was passing through the Shabnam Shoe Store enroute to Dharmshalla he saw that 6-7 miscreants had surrounded P.W. 5, one of whom caught his hand, another one put pistol on his chest and one another snatched away bag from hid and he identified Shailendra Kahar, Anil Sao and Bhutali Kahar among the miscreants. He identified the aforesaid bag of P.W. 5 on T.I. Parade. P.W. 4 Anugrah Prasad was the salesman of P.W. 5 and he was accompanying him and both of them were going to the Bank for depositing the aforesaid cash P.W. 4 also testified to the fact that P.W. 5 was intercepted and surrounded and relieved of his bag containing the aforesaid amount of money and pay in slip of the Bank by the miscreants. However, he identified none of the miscreants and he was declared hostile by the prosecution. His attention was drawn to his previous statement recorded under Sec. 161 Cr. P.C. He was contradicted by the I.O. (P.W. 10). He appears to have turned hostile towards the truth. 16. P.W. 7 Arun Kumar Gupta and P.W. 8 Narendra Singh were Judicial Magistrate who held T.I. Parade of the accused and the bag containing the cash and the pay in slip. They proved T.I. charts (Exts 3 and 3/1). 17. P.W. 6 Anandi Prasad was the Branch Manager, S.B.I., Hilsa Branch. He stated that P.W. 5 had a saving bank account in his Bank. He also stated that descriptions of currency notes with their dimensions were noted on pay in slip through which the cash was to be deposited in the Bank. P.W. 5 Kedar Singh and P.W. 1 Nagendra Nath Pandey, both, Police Havildars produced motorcycle (B.P.V. 2165) and bag in the Court at the instance of the officer incharge. 18. He also stated that descriptions of currency notes with their dimensions were noted on pay in slip through which the cash was to be deposited in the Bank. P.W. 5 Kedar Singh and P.W. 1 Nagendra Nath Pandey, both, Police Havildars produced motorcycle (B.P.V. 2165) and bag in the Court at the instance of the officer incharge. 18. The evidence of P.W. 5, P.W. 10, P.W. 2 and P.W. 3 on the point of occurrence leading to commission of dacoity, snatching away of the aforesaid bag containing cash and pay in slip, arrest of the appellants and two other accused persons from the house of Anil Sao, recovery and seizure of bag, cash, pay in slip, pistol, cartridges and motorcycle from possession of the appellants and other accused persons was quite consistent and corroborative. Their evidence is free from inherent taint and infirmity and the same inspires confidence. 19. However, a reference must also be made to certain criticisms which the evidence of P. Ws. 2,5 and 10 was subjected to. It was contended that their evidence suffered from various material contradictions and discrepancies which may be summarised as follows: P.W. 2 stated that the house of Anil Sao had two doors, one on the eastern side and the other on the northern side whereas the other witnesses said the doors were on the northern side and the western side. P.W. 2 stated the appellant Shailendra Kahar was arrested while he was sitting on the motorcycle but P.W. 10 said he arrested him while he was going on the motorcycle. P.W. 2 stated in paragraph No. 4 of his deposition that he remained with the police for about 2 and 1/2 hours, that is, till 2.30 p.m. while in paragraph No. 18 he said he stayed in the lane for about 10 minutes and thereafter he went to his house and if it was so he could not have witnessed preparation of seizure list (Ext. 6/1) in respect of motorcycle which was performed at 12.45 p.m. P.W. 5 said he following the police went to the house of Anil Sao and he remained there for about half an hour but P.W. 10 stated he had not gone there P.W. 5 said his statement was recorded within 4-5 minutes while P.W. 10 said his statement was recorded within 10 minutes. 20. 20. Though P.W. 5 stated that after the three miscreants were arrested in the house of the accused Anil Sao and they were taken at the door of his house and the bag containing the cash was recovered and seizured from one of them named Aley Hussain while a pistol and cartridges were recovered and seizured from the possession of the appellants Binod Prasad and Prakash Kahar respectively, he did not appear to have made such statement before the Investigating Officer (P.W. 10), P.W. 2 also stated in his deposition that three or four cartridges were recovered and seizured from the possession of the appellant Prakash Kahar but he did not say so before P.W. 10, P.W. 3 claimed to have identified the appellant Shailesh Kahar and the accused Anil Sao and Bhutali Kahar at the scene of incident. P.W. 10 said that P.W. 3 did not state he had identified the appellant Shailesh Kahar and the accused Bhutali Kahar and Anil Sao rather he stated to him that he had identified three accused persons, who were named in the F.I.R. That could not amount to contradiction in the statement of P.W. 3. Whatever the aforesaid inconsistencies or contradictions were said to have cropped up in the evidence of P.Ws. 2,5 and 10, they are all minor inconsistencies or omissions and they cannot be said to be material contradiction going to the root of the case. Such minor inconsistencies or contradictions are bound to occur in the evidence of natural and truthful witnesses for, most of the witnesses while passing their way through long cross-examination venture to give some answers which are not necessarily true or relevant for fear that their evidence on the main incident which they witnessed may not be disbelieved and discarded but when contradictions or omissions are of such nature as to adversely affect the core of the prosecution case such evidence must be rejected. As already observed in the instant case, the evidence of the main prosecution witnesses does not suffer from inherent infirmity or lacuna and the same must be said to be above board. 21. As already observed in the instant case, the evidence of the main prosecution witnesses does not suffer from inherent infirmity or lacuna and the same must be said to be above board. 21. It was vehemently urged that P.W. 5 could not be believed to have visited the house of Anil Sao and to have witnessed arrest of the miscreants and recovery and seizure of looted cash as well as pistol, cartridges and motorcycle of the appellant Shailesh Kahar in as much as P.W. 10 stated that P.W. 5 was not present at the scene when he had arrested that four miscreants and recovered and seized the aforesaid articles from their possession. This statement of P.W. 10 does not inspire evidence and the same cannot be accepted for, he made such statement out of case diary. It was just possible that P.W. 10 might not have seen the persons who had assembled at the house of Anil Sao at the time of arrest of miscreants and recovery and seizure of cash etc. from their possession. It was P.W. 5 who was the victim of circumstance and was looted away by the miscreants. The police personnel soon after getting information swung into action and set out to apprehend the miscreants. It was natural conduct of P.W. 5 and even other persons that they followed the police personnel and reached near the house of Anil Sao as it all happened in the heart of the town of Hilsa. Under the circumstance, the statement of P.W. 5 that he followed the police and reached the house of Anil Sao and he witnessed arrest of the appellants Shailendra Kahar, Binod Prasad, Prakash Kahar and Aley Hussain from the house of Anil Sao and recovery and seizure of the bag containing the cash and pay in slip, pistol, cartridges and motorcycle must be accepted. 22. As the position stands the incident leading to commission of a broad day light dacoity and snatching away of cash worth Rs. 56,282 from possession of P.W. 5 took place on the main Road of Hilsa town. P.W. 2, P.W. 3 and P.W. 4 also witnessed the commission of dacoity. P.W. 5, P.W. 2 and P.W. 3 identified the appellant Shailesh Kahar and the accused Anil Sao and Bhutali Kahar at the time 6-7 miscreants had intercepted P.W. 5 and he was robbed of the cash referred to above. P.W. 2, P.W. 3 and P.W. 4 also witnessed the commission of dacoity. P.W. 5, P.W. 2 and P.W. 3 identified the appellant Shailesh Kahar and the accused Anil Sao and Bhutali Kahar at the time 6-7 miscreants had intercepted P.W. 5 and he was robbed of the cash referred to above. The witnesses identified the appellants in the Court as well as at the time of their arrest in the house of the accused Anil Sao. It may be reiterated that the appellants Shailesh Kahar. Binod Prasad and Prakash Kahar along with Aley Hussain were arrested at the house of Anil Sao. While the appellant Shailesh Kahar, was arrested on his motorcycle just outside the house of Anil Sao, the other three miscreants referred to above were arrested from a latrine in the house of Anil Sao and after their arrest the bag containing cash and pay in slip of the informant and pistol and cartridges were recovered and seized from possession of the arrested persons. 23. The total number of miscreants who conjointly committed dacoity was six out of whom four faced the trial in Sessions Trial No. 61/79 as the remaining two Aley Hussain and Anil Sao had absconded and after they were apprehended they were tried in Sessions Trial No. 207/97 and Sessions Trial No. 86/96. It was contended that the accused Anil Sao was acquitted in Sessions Trial No. 86/96 and the accused Bhutali Kahar was acquitted in Sessions Trial No. 207/97 as none of the witnesses examined by the prosecution supported the allegation and they were all declared hostile and since two of the accused persons out of six including the appellants were acquitted the appellants also deserved to be acquitted. Reliance was placed on the case of Ram Shankar and Ors. V/s. State of Uttar Pradesh, , the case of Shahul Hamid and Anr. v. The State of Madras reported in 1998 Cr. Law Journal 885, the case of Ram Lakhan V/s. State of Uttar Pradesh, , the case of Willson Abraham Chouriappa V/s. State of Maharashtra reported in 1995 Cr. Law Journal 4042 and the case of Kanuru Yanadi Changaiah and Ors. V/s. State ofAndhra Pradesh, reported in 1985 Cr. Law Journal 1822. v. The State of Madras reported in 1998 Cr. Law Journal 885, the case of Ram Lakhan V/s. State of Uttar Pradesh, , the case of Willson Abraham Chouriappa V/s. State of Maharashtra reported in 1995 Cr. Law Journal 4042 and the case of Kanuru Yanadi Changaiah and Ors. V/s. State ofAndhra Pradesh, reported in 1985 Cr. Law Journal 1822. A perusal of the decisions referred to above would reveal that the facts and circumstances of the case cited at the bar are entirely different from those of the case at hand and as such the ratio decidenda of those cases are not applicable to the present case. 24. One Yogendra Sharma had also identified certain miscreants on T.I. Parade. He was not examined by the prosecution. However, in view of unimpeachable evidence of other witnesses his non-examination is of no consequence and the entire prosecution case cannot be thrown over board on the sole ground of his non-examination. 25. In view of the facts, circumstances and evidence discussed and the observations made in the preceding paragraphs, it is to be held that the prosecution brought home the charge levelled against the appellants beyond the reasonable doubt. The learned Court below rightly found and held the appellants guilty and convicted them. The appellants were sentenced to undergo rigorous imprisonment for ten years each. It was contended that the incident took place in the month of January, 1989 and the appellants had been running to Courts for over 12 years and thus they obviously had already been put to tremendous harassment and mental agony. Another contention was that the appellants also sufferred rigour of jail life inasmuch as they had already served 20 monthsjail term. In the light of the aforesaid contentions, the learned Counsel relying on the case of Kuso Mahto and Anr. V/s. the State of Bihar, reported in -- , submitted that the appellants deserved to be let off with sentence of imprisonment for the period already undergone by him. 26. Taking the facts and circumstances of the case and the nature of the offence into account and also keeping in view the fact that the incident took place over 12 years age and the apellants had already sufferred hardships and mental agony the sentence of rigorous imprisonment often years is reduced to rigorous imprisonment for six years. 27. 26. Taking the facts and circumstances of the case and the nature of the offence into account and also keeping in view the fact that the incident took place over 12 years age and the apellants had already sufferred hardships and mental agony the sentence of rigorous imprisonment often years is reduced to rigorous imprisonment for six years. 27. With the aforesaid modification in sentence, both the appeals are dismissed. Let the appellants be directed to surrender themselves for serving of sentence awarded to them.