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2002 DIGILAW 1441 (PAT)

Uma Kant Upadhyay v. State Of Bihar

2002-12-19

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. Both these appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. All the appellants have been convicted under section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 3. The prosecution case, in short, is that in between the night of 11/12th August, 1986 at about 1.00 A.M. Kunj Lal Sah, informant of village Hasanpurwa was sitting on a cot inside the room. All on a sudden about 30 to 35 dacoits reached there. It has been stated that the informant was not keeping good health and he was massaging his head due to headache. Seeing a large number of persons he stood up and opened the window. In the meantime the dacoits broke open the door of his room and entered into the same. A lamp was burning on the window. He identified three accused persons who were at his Darwaja, namely, Uma Upadhya, Harihar Upadhya and Ajit Upadhya. They were asking other dacoits that Kunj Lal Sah was inside the house and they also asked them to kill him. Thereafter about six dacoits entered into his room after breaking open the door. They asked the informant on the point of gun whether he was Kunj Lal Sah. The informant told them that Kunj Lal was his elder brother and his name was Raj Mangal Sah. He also told them that Kunj Lal Sah had gone to Baidya Nath Dham. Thereafter the dacoits began to loot away properties from his house. Four dacoits were armed with gun and other dacoits were armed with dagger, Farsa and Danta. All other dacoits were aged about 50 to 60 years. The dacoits were talking in Hindi with symbolic names and phrases like "Pura Pachchas Ho Gaya", Master Saheb, Jamadar Saheb, Daroga Jee, Inspector Saheb" etc. They were wearing different dresses. It has been further stated that they committed dacoity in the house of his agnates Ramashish Sah and other villagers including Jagan Sah. On Hullah the dacoits fled away and they also exploded bomb. They removed cash of Rs. 300/- and ornaments worth Rs. 7000/- from the house of the informant. They also committed dacoity in the house of Bhagelu Bhagat. On Hullah the dacoits fled away and they also exploded bomb. They removed cash of Rs. 300/- and ornaments worth Rs. 7000/- from the house of the informant. They also committed dacoity in the house of Bhagelu Bhagat. The Fardbeyan of the informant, Kunj Lal Sah was recorded on 12.8.86 at village Hasanpurwa at 5 A.M. on the basis of which formal F.I.R. was drawn up. During investigation of the case some suspects were also arrested by the police and were put on T.I. Parade. Appellant Faujdar Chaubey was put on T.I. Parade and was identified by the informant. After investigation charge sheet was submitted against the accused persons, cognizance was taken and the case was committed to the course of sessions where trial concluded with the result as indicated above. The appellants pleaded not guilty. 4. The prosecution in support of its case examined altogether nine witnesses. P.W. 1 is Ram Binay Sah, P.W. 2 is Ram Jyoti Devi, P.W. 3 is Smt. Kishori Devi, RW. 4 is Sukh Deo Rai, P.W. 5 is Kunj Lal Sah (informant), P.W. 6 is Sada Shiv Rav, Judicial Magistrate who had conducted T.l. Parade, P.W. 7 is Maharaj Baitha, P.W. 8 is Devendra Prasad, a formal witness, who had proved Fardbeyan, Ext. 3 and F.I.R. and P.W. 9 is Kamala Prasad, Officer-in-Charge. He is the investigating officer of this case. 5. P.W. 5 the informant has fully supported the case of the prosecution as stated in his Fardbeyan. According to him, on the date of occurrence i.e. 11/12th August, 1986 at about 1.00 A.M. when he was sitting on a cot inside the room and was having headache. He saw 30 to 35 dacoits at his Darwaja from his window. When he came near the window, the dacoits broke open the door of his room and came inside. According to him, he identified accused Uma Upadhaya, Harihar Upadhaya, Ajit Upadhya. He has stated that the accused persons were asking other dacoits where is Kunj Lal Sah and they were also talking for killing the informant. He has further stated that some of the dacoits enquired from him about Kunj Lal. He told that Kunj Lal Sah was his elder brother and his name was Raj Mangal. Kunj Lal had gone to Baidya Nath Dham. The dacoits committed dacoity in his house and looted away ornaments worth Rs. 7,000/- and cash of Rs. He has further stated that some of the dacoits enquired from him about Kunj Lal. He told that Kunj Lal Sah was his elder brother and his name was Raj Mangal. Kunj Lal had gone to Baidya Nath Dham. The dacoits committed dacoity in his house and looted away ornaments worth Rs. 7,000/- and cash of Rs. 300/-. According to him, the dacoits also committed dacoity in the house of neighbours in the same night. He raised alarm and villagers came. Then, the dacoits fled away. Next day his Fardbeyan was recorded by the S.I. of Police. The other P.Ws. 1, 2, 4 and 7 have supported the version of the informant. P.W. 9 the investigating officer has stated that on 12.8.86 he was officer-in-charge of Chakiya P.S. and at 4.00 A.M. he came to know about explosion of bomb. On the next day he went to village Hasanpurwa and he recorded the Fardbeyan of the informant and on the basis of his statement he drew up first information report. He inspected the place of occurrence which was the house of the informant. He found the door of the room of the informant broken. He also found articles scattered in the house and boxes in broken condition. He also found the door of the house of Ramashish Sah the agnate of the informant broken. According to him, dacoity was also committed in the house of Ramashish Sah in the same night. He also inspected the house of Jagan Sah and Bhagalu Sah where dacoity was committed at that very night. He recorded the statement of the witnesses who supported the alleged commission of dacoity. Later on he submitted charge sheet. According to him, he also inspected the house of appellant Harihar Upadhaya in whose house dacoity was also committed in the same night. He has stated that Maharaj Baitha told him that dacoity was being committed in the house of Kunj Lai Sah and he also intimated the same to appellant Harihar Upadhaya. According to him, Ram Vinaya Sah did not tell him that he came to know about the identification of dacoits from his aunt. 6. P.W. 6, who is the Judicial Magistrate, had conducted T.I. Parade of the suspects on 25.8.86 and in the T.I. Parade the suspect Faujdar Chaubey was identified by the informant. 7. According to him, Ram Vinaya Sah did not tell him that he came to know about the identification of dacoits from his aunt. 6. P.W. 6, who is the Judicial Magistrate, had conducted T.I. Parade of the suspects on 25.8.86 and in the T.I. Parade the suspect Faujdar Chaubey was identified by the informant. 7. Learned counsel for the appellants has submitted that there is no corroboration of the witnesses on the point of identification. To elaborate his point it has been submitted that P.W. 1 says that he was told about the identification of the appellants (dacoits) by his aunt and uncle. RW. 4 has also stated that she was told by her husband about the identification of above mentioned appellants. It has been further submitted that according to RW. 9, I.O.. the dacoity was committed in the house of appellant Harihar Upadhaya, as such, story of prosecution is improbable that how the appellants had come to the house of the informant to assault him. He has also contended that there was enmity between the appellants and the informant with respect to the land dispute which has been supported by P.W. 5 in his evidence. According to P.W. 5 and P.W. 9 appellant No. 1, Uma Kant Upadhaya is a Govt, servant and all the appellants have no criminal history. As such, it was not probable that they would commit dacoity in the house of the informant and other villagers. 8. On the factum of dacoity P.W. 5 has fully supported that dacoity was committed in his house and he saw three of the appellants amongst the dacoits whom he identified among the dacoits. This factum has also been supported by P.W. 4, who claims that he was hiding in verandah and he also identified these three appellants. Other witnesses on the factum P.Ws. 1 and 2 did not identify these appellants. Their names were disclosed by the informant. However, no other witnesses have supported that they identified these appellants during commission of dacoity. P.Ws. 7 and 9 have also stated that there was dacoity in the other houses of the villagers including the house of appellant Harihar Upadhaya. It is very pertinent to mention that it was 1 Oclock in the night and the appellants were standing out side the room i.e. at the Darwaja and a lamp was burning inside the room, how RW. It is very pertinent to mention that it was 1 Oclock in the night and the appellants were standing out side the room i.e. at the Darwaja and a lamp was burning inside the room, how RW. 5, the informant identified these three appellants in the dark night who were standing at the Darwaja, The other witness RW. 4 who claims to identify these appellants, has stated that he was hiding himself behind a hut. As such, possibility of identifying the appellants from behind the hut also becomes improbable. That apart, in paragraph 4 of his evidence RW. 4 has stated that the villagers assembled and were enquiring about identification of dacoits. But, however, he did not disclose the names of these appellants whom he identified. On the other hand RW. 9 has also stated that he did not mention in his case diary that RW. 4 had disclosed the names of these three appellants. RW. 9 during investigation also found that there was dacoity committed in the house of appellant Harihar Upadhaya. (n view of above discussion there is discrepancy in the deposition of witnesses on the question of identification. It is also an admitted fact that there was enmity between the informant and the appellants and it has also come on the record that appellant Harihar Upadhaya, Uma Kant Upadhyay and Ajit Upadhyay had no criminal history and appellant Harihar Upadhya is Govt, servant. From the, evidence of P.Ws. 7 and 9 it appears that dacoity was committed in the house of appellant Harihar Upadhya. It is also very important to state that appellant Harihar Upadhya was available at his house when the investigating officer visited his house which would not be the normal conduct of the accused. As also submitted by the learned counsel that the dacoits were enquiring about Kunj Lal Sah whom they wanted to kill but the informant P.W. 5 stated that Kunj Lal was elder brother and his name was Raj Manga! Prasad and his brother Kunj Lal had gone to Baidya Nath Dham, and thus, he was saved. As also submitted by the learned counsel that the dacoits were enquiring about Kunj Lal Sah whom they wanted to kill but the informant P.W. 5 stated that Kunj Lal was elder brother and his name was Raj Manga! Prasad and his brother Kunj Lal had gone to Baidya Nath Dham, and thus, he was saved. This also goes to show that the dacoity was not organised by appellant Harihar Upadhya as alleged because, if it was organised by him (Harihar Upadhya,) being a next door neighbour, he must have kept watch on him and must had knowledge that the informant Kunj Lal Sah was very much present in the room. The cause of enmity with respect to the land lying between two houses which has been purchased by a registered sale deed by the appellant Ajit Upadhyay alias Binod in the month of October, 85 is also on the record and marked as Ext, C D.W. 1 has also supported about the purchase of land by the appellant Ajit Upadhyay which is Ext. C\ which indicates that the informant had reasons to take revenge from appellants and thus false implication of appellants can not be ruled out. 9. From the discussion above about the identification against the appellants Harihar Upadhya, Uma Kant Upadhyay and Ajit Upadhyay it appears that there is single identification of P.W. 5 only and there is no corroboration of other witnesses. The prosecution did not choose to examine any of the villagers who came just after commission of dacoity. RW. 4 though has corroborated the identification but his corroboration becomes doubtful because he did not mention the name of the appellants to the investigating officer and he has also stated that he was hiding himself behind a hut. So far appellant Faujdar Chaubey is concerr ed, he was identified by P.W. 5 in the T.I, Parade which was conducted by P.W. 6, Judicial Magistrate on 25.8.1986. From the deposition of P.W. 9 it appears that there was criminal history against him but nobody identified this appellant during commission of dacoity in the house of the informant. As such, it is also a case of single identification against Faujdar Choubey. There is no dispute that dacoity was committed in the house of informant and also in the house of other villagers but participation of these appellants could not be proved beyond reasonable doubts. As such, it is also a case of single identification against Faujdar Choubey. There is no dispute that dacoity was committed in the house of informant and also in the house of other villagers but participation of these appellants could not be proved beyond reasonable doubts. As such it would not be safe to convict these appellants on single identification. Accordingly, the appellants deserve benefit of doubt. They are acquitted of the charges levelled against them and are discharged from the liability of bail bonds. The conviction and sentence passed by the court below are set aside. In the result, these appeals are allowed.