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2002 DIGILAW 1178 (PAT)

Daya Nand Sharma v. State Of Bihar

2002-10-31

SOMESHWAR NATH PATHAK

body2002
Judgment SOMESHWAR NATH PATHAK, J. 1. This appeal is directed against the judgment dated 10.10.2001, passed by the 1st Additional Sessions Judge, Araria, in Sessions Trial No. 589 of 1993 (Trial No. 701 of 1995). The sole appellant was convicted under Section 395 of the Indian Penal Code and was sentenced to undergo R.I. for six years. 2. On 28.12.1993 at 9.55 a.m., the informant Jhouli Khatvey gave his fardbeyan to the police at the police station Bhargama (district Araria) alleging therein that on 27.12.1991 at 12 p.m., he and his family members were having their siesta after taking their meal 14-15 dacoits came to him when he was at his gohal The dacoits were armed with lathi One of the dacoits assaulted him with lathi on his leg and twisted his left hand. One criminal namely Kishan Sharma assisted by another criminal demanded of the informant as to where he had kept his cash and other articles of the house, In the mean time, other criminals entered into his house and his second son Kusho and his son-in- law Brahmdeo Khatbe were also tied up. Subsequently they made entry into the room of his elder son Kusho and thereafter they made forced into the room of eldest son Musho Khatbe after breaking open the door of his room and indulged in assaulted on some members of the house and committed loot. His son was grappling with the desperadoes. The informant raised alarm which attracted villagers. One of the criminals namely Saburi Khatbe alios Chichai Sharma was done to death by the villagers. One criminal namely Dayanand Sharma was identified by his son. Utensils and some articles kept in boxes were carried away by the dacoits. 3. The accused-appellant had taken the defence of false implication on account of the fact that the informant was having land dispute with the father of the deceased, Saburi Khatbe, and that Saburi Khatbe was killed by Brahmdeo Khatbe on the alleged night when he (deceased) had gone out of the house to attend call of nature. The appellant was implicated in this false case because he is son- in-law of Shibu Khatbe. 4. The prosecution examined in all ten witnesses. PW 1 was Musho Khatbe. The appellant was implicated in this false case because he is son- in-law of Shibu Khatbe. 4. The prosecution examined in all ten witnesses. PW 1 was Musho Khatbe. He speaks of the alleged dacoity in his house and his battling with one of the dacoits who was later thrashed by the villagers as a result of which he died. He identified one dacoit who has been named as Dayanand Sharma (appellant). PW 2 is also the son of the informant. He also speaks of dacoity in his house. PW 3 is Bechni Devi, who also supported the occurrence of dacoity in her house and killing of one of the dacoits by the villagers. PW 4 is the informant himself. He has stated the alleged occurrence in the manner as he has described the same in his fardbeyan. He was told by his son that one of the dacoits, Dayanand Sharma, was identified during the course of dacoity, and he also speaks of the killing of Saburi Khatbe by the villagers. PW 5 was also an inmate of the victims house and she also corroborates the evidence of other inmates of the house as regards the occurrence of dacoity. She further adds that one dacoit was allegedly arrested by her family members and was assaulted resulting into his death. PW 6, Shanti Devi, was also an inmate of the victims house and she also corroborates the testimony of other witnesses regarding the dacoity and the alleged killing of one of the dacoits, Saburi. PW 7 is Harilal Sharma, the neighbour of the informant, when he heard alarm regarding the dacoity, he went towards the north of the village. When he returned, he found gathering of 150 villagers. He found there the dead-body of Saburi Sharma alias Chechai Sharma. This witness said that he was informed by Musho that in the dacoity, appellant, Dayanand Sharma, had also participated. This witness identified the appellant in dock. This witness denied knowledge whether there wasl and dispute between the informant and Saburi. PWs 8 and 9 were declared hostile by the prosecution. PW 10 is neighbor of the informant and when he heard alarm, "dacoit dacoit", he came out of his house and he also raised alarm. Several villagers assembled and went to the house of the informant, Jhouli. PWs 8 and 9 were declared hostile by the prosecution. PW 10 is neighbor of the informant and when he heard alarm, "dacoit dacoit", he came out of his house and he also raised alarm. Several villagers assembled and went to the house of the informant, Jhouli. He saw that there was scuffle between the dacoits on the one hand and some villagers on the other. He went to the spot and saw Musho Khatbe and Jhouli Khatbe in injured condition. He was informed by Musho Khatbe that Dayanand Sharma was also one of the dacoits. In cross-examination by the accused, this witness admitted that the Saburi was killed, but he had no knowledge whether Saburi Sharma had filed a murder case against Musho and others. When he was informed by Musho about the participation of Dayanand Sharma in the alleged dacoity, it was 1 a.m. of the night. 5. The aforesaid evidence on behalf of the prosecution indicates that the factum of dacoity was supported by the inmates of the house of the informant and some independent witnesses, who were neighbour, also supported the circumstance that there was alarm of "dacoit dacoit" raised from the house of the informant in the alleged night. The above evidence has further shown that some witnesses, who were neighbours of the informant, supported and added the circumstance that on the alleged night, there was fight between the dacoits on the one hand and the villagers on the other. So it is apparent that the occurrence of dacoity is supported by the circumstances unleashed by the evidence of independent witnesses also. 6. So far the defence of the appellant is concerned, it was to the effect that in the alleged night, the informants son-in-law Brahmdeo was lying in wait and when the deceased Saburi Khatbe came out of his own house to attend the call of nature, he was overpowered by Bramdeo and subjected to assault resulting in his death and thereafter the appellant who is son- in-law of Shibu has been falsely implicated in a false case of dacoity. This defence taken by the appellant does not appears to be convincing. This defence taken by the appellant does not appears to be convincing. It does not stand to reason that a relation of the informant would dare to kill the son of his neighbour, and with the conscience of guilt lurking in its mind would be present at the place of occurrence to allege a false occurrence of dacoity. It does not also stand to reason that the informant would come to the police station in the next morning at 10 a.m. to lodge a false case of dacoity in his house, with the guilt of killing of son of his neighbour by one of his family members sitting heavy on his heart. The circumstances on the record, therefore, would add to the evidence adduced by the PWs that, of course, there was an occurrence of dacoity in the house of the informant and when the dacoits tried to escape, villagers indulged in fight with them and one of them perhaps was caught hold of by them and thrashed resulting into his death. It was suggested to me by the appellants lawyer that the dacoits were 11-15 in number and all were armed and so they would have killed the informants son instead of one of their own members being killed by the villagers. This suggestion also is misdirected because dacoits would be engaged in committing loot and plunder and it is not necessary that they must kill those who offered resistance, if at all any resistance was offered by the members of the informants family. The culprits use force only to facilitate commission of their offence and if any overt act is committed in this direction, it is not necessary that the culprits must kill the persons who offer resistance. So the plea of the appellants lawyer is neither here nor there. It was also suggested to the PWs by the appellant that the case of murder was filed by Shibu Khatbe, the father-in-law of the appellant. Pertinent question is as to when this murder case was filed by the Shibu Khatbe. DW 1 is the wife of Shibe Sharma (khatbe) and she said that her son was killed by the Jhouli, Kusho and others. Her son-in-law (appellant) had come to her house to perform the last rites of her son. Pertinent question is as to when this murder case was filed by the Shibu Khatbe. DW 1 is the wife of Shibe Sharma (khatbe) and she said that her son was killed by the Jhouli, Kusho and others. Her son-in-law (appellant) had come to her house to perform the last rites of her son. It is surprising that suddenly the appellant would be informed by the family of his father-in-law just to come to the place of occurrence village to attend the last rites of the deceased. According to the defence, the deceased was killed in the night of 27.12.1991, and I fail to understand as to how the dead-body was preserved till the arrival of the son-in-law just for cremation. The circumstances unleashed by the defence evidence also, therefore, points to the guilt of the appellant and add circumstance to the prosecution case and evidence that the appellant was present at the P.O. village on the alleged night of the alleged occurrence. 7. It has been submitted by the appellants lawyer further that the appellant has been falsely implicated because the informant had enmity with Shibu Khatbe. It is also a surprising element that a particular person having enmity with his neighbour would like to implicate his son-in-law. Moreover, the enmity cuts both ways and if the appellant was too much attached to his father-in- law, he would also very likely be participating in the alleged dacoity along with the deceased in order to feed fat the grudge of enmity, whatever may be the cause of this enmity-land dispute or any kind of dispute. 8. In the circumstances of the case, I do not think the trial Court was unjustified in recording the findings of guilt against the appellant. So far as the sentence is concerned, it is also not so severe as to call for any interference by this Court. This appeal is accordingly dismissed.