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2002 DIGILAW 646 (PAT)

Shatrughan Rabidas v. State Of Bihar

2002-05-22

B.N.P.SINGH, P.K.SINHA

body2002
Judgment B.N.P.Singh, J. 1. In the intervening nights of 2nd/3rd April, 1995, while house inmates were fast asleep after taking their meals, it is alleged that some dacoits holding arms with them, scaling over the wall of the house, gained their access in the inner apartment of house of Dhananjay Kumar (P.W. 4). It was alleged that they took recourse to firing to scare house inmates, collected them in the courtyard and coercing them, relieved them of their house belongings/which include ornaments, wearing apparels, watches, utensils, etc. and decamped with the booty. The fardbeyan of Dhananjay Kumar, with these accusations, was recorded by Shri CD. Sharma, Sub Inspector of Police of Noorsarai Police Station on 3rd April, 1995 at 6 a.m. at Sitarampur, pursuant to which first information report was drawn up and Police came into action. In usual course of investigation, the Police recorded statement of witnesses, visited place of occurrence and got autopsy held over the dead-body of Chandrika Sharan Singh, who was shot dead by the miscreants, and eventually on conclusion of investigation, laid charge sheet before the Court. Though a good number of dacoits allegedly participated in the dacoity, only two of the house inmates Bijay Kumar (P.W. 3) and Dharmshila Devi, wife of Dhananjay Kumar, claimed identification of the appellant alone. In the eventual trial, that commenced, the State examined altogether six witnesses, who were house inmates, the doctor, who held autopsy over the dead-body of Chandrika Sharan Singh and also the Police Officer, who investigated the case. 2. The defence of the appellant before the Court below and also this Court had been that of innocence and explicit defence of the appellant was that he was not paid wages by the house owner where he was working for quite some time and on that account, there had been some quarrel, and hence false implication. No witness, however, was examined on behalf of the appellant. The trial Court, on consideration of rival contentions raised at Bar and due regard being had to the evidence of the prosecution witnesses, recorded finding of guilt under Section 396 Indian Penal Code, 1860 against the appellant and sentenced him to suffer rigorous imprisonment for life. 3. No witness, however, was examined on behalf of the appellant. The trial Court, on consideration of rival contentions raised at Bar and due regard being had to the evidence of the prosecution witnesses, recorded finding of guilt under Section 396 Indian Penal Code, 1860 against the appellant and sentenced him to suffer rigorous imprisonment for life. 3. Variety of reasons were assigned by the earned Counsel for the appellant to assail the propriety of the findings recorded by the Court below and without there being such evidence, it is sought to be urged that though the miscreants took recourse to firing from a distance of not more than 15 ft., pursuant to which Chandrika Sharan Singh was found dead, there was no positive finding by the doctor about there being evidence of charring around the wound, on the person of the deceased. Contentions are raised that though the miscreants were suggested to have ransacked the house for quite some time in course of which Chandrika Sharan Singh was shot dead, the Investigating Officer/who visited the place of occurrence, did not find any mark of violence and that apart, there was no seizure of either blood from the place of occurrence or even broken pieces of bottles and glasses which the house inmates were suggested to have pelted on the miscreants. Failure of the house inmates to produce the torch that was suggested to be the means of identification of the miscreants was also taken to be a ground to suspect the bona fide of the prosecution case. Yet, it is urged that in view of the admission made by house inmates that the appellant had worked for quite some time in the house, it was most unlikely that he would indulge in commission of dacoity in the house without taking precaution for concealment of his face. Non-examination of the persons who were witnesses to the preparation of the inquest report was also taken to be a ground to discard the credibility of the prosecution case. Non-examination of the persons who were witnesses to the preparation of the inquest report was also taken to be a ground to discard the credibility of the prosecution case. It is urged that since the appellant alone had been charged for commission of offence u/s. 396 Indian Penal Code, 1860 , there was serious error, and omission to frame charge for commission of dacoity by the appellant along with four or more than four persons, and reiterating the submission, it is urged that the since such omission to frame charge was a grave defect, which should have been vigilantly guarded against, that has prejudiced the appellant seriously and would accordingly vitiate the entire trial held against him. The other limb of argument pressed into service on behalf of the appellant was that the narration made by the Investigating Officer would manifestly suggest that on the first day when he visited the house of the appellant, he was not found there and there has been no evidence about seizure of any offending article from his house and on the other day, when the Investigating Officer visited house of the appellant twice, he was found very much available in the house, and in this backdrop, it is urged that it was quite unlikely that the appellant would make himself available for his apprehension by the police officer and that too, when his house was raided by the police officer only a day preceding his arrest. The appellant having no criminal antecedent was also taken to be a ground to suggest his innocence and the last argument was that since it was a case of single identification, after exclusion of evidence of other witnesses who did not make similar narration before the police about identification of the appellant, it was quite hazardous for the Court to place implicit reliance on the testimony of solitary witness and record a finding of guilt against him and reliance on this score was placed on a decision of the Apex Court of the land reported in 1981 (Supp) SCC 28 Wakil Singh and Ors. V/s. State of Bihar. Reliance was also placed on a decision of the High Court of Allahabad reported in 1996 Cr LJ 2316 Parsu Ram and Ors. V/s. State of Bihar. Reliance was also placed on a decision of the High Court of Allahabad reported in 1996 Cr LJ 2316 Parsu Ram and Ors. V/s. State of U.P. Learned Counsel for the State would resist contentions raised on behalf of the appellant and urge that since the sole testimony of Bijay Kumar (P.W. 3) did not suffer from serious infirmity, implicit reliance had to be placed by the Court and finding of guilt recorded by the Court below did not require interference. About the alleged defect in framing of the charge, it is sought to be urged that since the appellant was charged u/s. 396 Indian Penal Code, 1860 , which impliedly suggested participation of five or more than five persons, omission to mention the name of the persons with whom the appellant participated in the dacoity, was only an irregularity which did not affect the validity of the conviction u/s. 396 Indian Penal Code, 1860 . 4. In the eventual trial that commenced against the appellant, the house inmates examined by the State include Sudha Kumari (P.W. 1), Indu Kumari (R.W. 2), Bijay Kumar (P.W. 3) and Dhananjay Kumar (P.W. 4). Sudha Kumari was the sister of Dhananjay Kumar, the informant, and she would state to have got awakened on the sound of firing when she found the miscreants knocking the door. After she opened the door, they gained access in inner house and committed dacoity thereafter. She would state about Chandrika Sharan Singh having been shot dead by the miscreants. The witness would claim to have identified the appellant who had concealed himself at verandah. Indu Kumari (P.W. 2) would make similar narration about identification of the appellant. Bijay Kumar (P.W. 3) too claimed identification of the appellant when he along with others participated in the dacoity in his house. He would claim identification of appellant, when the dacoits were making retreat with the house belongings, in the flash light of torch, which they threw on the house inmates. Dhananjay Kumar (P.W. 4) who was the maker of the fardbeyan, stated that while he was sleeping with his brother-in-law Raj Kishore Prasad, he got awakened on the sound of firing when he noticed 5, 6, persons holding fire-arms. They collected house inmates in the courtyard and removed house belongings which include television, freez Videocon tape-recorder, wearing apparels, ornaments, cash etc. They collected house inmates in the courtyard and removed house belongings which include television, freez Videocon tape-recorder, wearing apparels, ornaments, cash etc. The miscreants also shot dead Chandrika Sharan Singh, who was in another house. He stated to have rendered his fardbeyan before the Police. 5. Chandradeo Sharma (P.W. 5) the Sub Inspector of Police, who was the Investigating Officer, stated to have rushed to the place of occurrence on receipt of information about a dacoity with murder, having been committed in village Sitarampur. He stated to have recorded statement of Dhananjay Kumar (P.W. 4) and transmitted the same to Noor sarai Police Station for drawal of first information report. He stated to have prepared the inquest report and visited the place of occurrence which was the house of Dhananjay Kumar. Though the witness would admit to have not affected seizure of blood from the place of occurrence nor having effected seizure of any offending article from the house of the appellant after his apprehension, he would state to have noticed the lock of the trunk broken and also Godrej lying broken at the place of occurrence. Dr Mahendra Prasad Singh. (P.W. 6), who held autopsy over the dead-body of Chandrika Sharan Singh, noticed two lacerated wounds, one of which was on the left cheek which was the wound of entry, and the other wound was on occipital region, which was the wound of exit. These two injuries in the estimation of the doctor were sufficient to cause death and these injuries were caused by firearms. This is all the evidence that has been adduced on behalf of the State to lend assurance to the prosecution allegation about commission of dacoity in the house of Dhananjay Kumar and also participation of the appellant in the incident. 6. In view of ocular testimony of witnesses and also the findings recorded by the doctor as also the police officer, the factum of commission of dacoity and also killing of Chandrika Sharan Singh, in course of same transaction has been well established. As has been noticed by the Police Officer, who visited the place of occurrence, there was also marks of violence. Now focal point was about participation of the appellant. As has been noticed by the Police Officer, who visited the place of occurrence, there was also marks of violence. Now focal point was about participation of the appellant. In the early version of Dhananjay Kumar which he, "rendered before the Police, he stated that only two house inmates, namely, Bijay Kumar and Dharmshila Devi claimed identification of appellant during commission of dacoity in their house. At trial, that was held against the appellant, Vijay Kumar (P.W. 3) in similar terms claimed identification of the appellant in flash light of torch, held with them. However, it would appear that Sudha Kumari (P.W. 1), Indu Kumari (P.W. 2) and Dhananjay Kumar (P.W. 4) too would claim identification of the appellant notwithstanding there being no such recital made in the fardbeyan of Dhananjay Kumar about these witnesses too claiming identification of the appellant before him. Attention of these witnesses-was drawn by the defence to impeach their credibility about identification of the appellant before the Police, and the Police Officer who recorded their statements would negate assertions made by these witnesses. Though it is urged at Bar that since Dharmshila Devi, the other witness, who claim identification of the appellant, has not been examined at trial, the prosecution was left with solitary evidence of Bijay Kumar (P.W. 3) which did not receive corroboration about participation of the appellant, we find that credible evidence of the witnesses cannot be thrown overboard only for want of corroboration, once it is found free from blemishes. The witness at trial, claimed identification of the appellant and that is also the recital made in the fardbeyan of Dhananjay Kumar. Reliance placed by the earned Counsel for the appellant on a decision of the Apex Court in 1981 (Supp) SCC 28 (supra), was quite misconceived as facts of the case cited at Bar and also the circumstances in which sole identification was found not credible are not akin with the facts and circumstances of the instant case. Test identification parade was conducted by the Police after lapse of about 3 and 1/2 months and that apart, the physical feature of the miscreants who participated in the dacoity was found conspicuously wanting either in the early version of the prosecution or in the evidence of the witnesses. Test identification parade was conducted by the Police after lapse of about 3 and 1/2 months and that apart, the physical feature of the miscreants who participated in the dacoity was found conspicuously wanting either in the early version of the prosecution or in the evidence of the witnesses. Contrary to these circumstances, we have noticed that the physical feature of the miscreant has been well described even in the early version of Dhananjay Kumar which he rendered before the Police while setting it in motion. The circumstances in which the sole identifier was not found credible in the case reported in 1996 Cri LJ 2316 (supra) are quite poles apart from the facts of the instant case. In the case cited at Bar, there Was material contradiction about the source of light, there was inconsistency in the oral and medical evidence and that apart, the accused was a respectable person of the locality. In backdrop of these circumstances, identification made by the sole witness was kept out of consideration by the Court. 7. There being no evidence, about signs of charring around the wound noticed on the person of Chandrika Sharan Singh by the doctor, who held autopsy over the dead-body, was not of any significance as there has been no evidence about the distance from which miscreants took recourse to firing causing fatal injury to the deceased. Since the Investigating Officer had found evidence of mark of violence, it cannot be legitimately argued that there was no mark of violence at the place of occurrence and similarly failure of the Police Officer to seize blood stained earth from the place of occurrence was not such a vital factor which can affect the broad features of the prosecution case. Likewise, it cannot be legitimately argued that failure of the appellant to make seizure of torch would render the prosecution case unworthy of credence about identification of the appellant, as it was never claimed by the witness that the appellant was identified in the flash light of the torch of the house inmates. The witnesses contrary to that had been making categorical narration before the trial Court about identification of the miscreants in the flash light of torch thrown by the miscreants. The witnesses contrary to that had been making categorical narration before the trial Court about identification of the miscreants in the flash light of torch thrown by the miscreants. True it is that Dhananjay Kumar (P.W. 4) would state that miscreants had not put galmochha on their faces and on this score, it has been urged that since the appellant was quite known to the house inmates, it was most unlikely that he would indulge in commission of dacoity without taking precaution for concealment of identity. Though the argument looks alluring but is bereft of merit, for the reason that it is not a matter of universal application that dacoities are not committed even by known persons without concealment of their identity. Non-examination of witnesses of the inquest report would not introduce any serious infirmity in the prosecution case and likewise, simply because no offending articles were found in the house of the appellant when the Police visited his house, that would not militate against the ibona fide of the prosecution case. 8. Though much stress was laid about omission to frame charge about participation of other associates of the appellants, that argument too was bereft of legal value and reliance on this score can be placed on a decision of the Apex Court of the land - Shyam Behari V/s. State of Uttar Pradesh in which observations were made by the Apex Court that even if the accused could not be convicted u/s. 396 Indian Penal Code, 1860 , he could be convicted under sec. 302 Indian Penal Code, 1860 , murder being one of the ingredients u/s. 396 Indian Penal Code, 1860 , as the accused knew from the charge, which was framed against him, (emphasis added) that he was sought to be made responsible not only for commission of dacoity but also for commission of murder while committing such dacoity. We can usefully refer the observation made by the Apex Court of the land - Willie (William) Slaney V/s. Madhya Pradesh wherein observations were made that having regard to the nature of charge framed, omission to frame a separate charge u/s. 302 Indian Penal Code, 1860 was only a curable irregularity, which in the absence of prejudice could not affect the legality of conviction u/s. 302 Indian Penal Code, 1860 . (emphasis added) Almost in similar circumstance, observations were made by this Court in the case reported in 1973 Cri LJ 364 Ram Pratap Mahato and Anr. V/s. State of Bihar that in the charge which was framed, it was not specified that the dacoity was committed by five or more persons but the very fact that sec. 395 Indian Penal Code, 1860 was mentioned in the charge, would imply that it was in respect of an offence in which five or more persons had participated. The observations were made by the Court that in these circumstances no prejudice would be caused to the accused on account of alleged defect in the charge. We have noticed that recitals were made even in the fardbeyan about participation of 13/14 persons in commission of dacoity in the house of Dhananjay Kumar, and that apart, even the evidence of P.W. 3 would suggest participation of 13/14 persons who indulged in commission of dacoity in the house and similar was the evidence of P.W. 4 Dhananjay Kumar also whose evidence would manifestly suggest participation of 12/13 persons who indulged in commission of dacoity in the house. Though we are conscious that omission to frame a charge against other associates of the appellant was a grave defect which should have been vigilantly guarded against, but in view of the observations made by the Apex Court of the land in the case cited at Bar, which are quite akin to the facts of the instant case, the omission to specifically mention the number of persons who participated in the dacoity would not introduce any legal infirmity in the charge so as to vitiate the entire proceeding. The fact that there was a dacoity in the house of Dhananjay Kumar (P.W. 4) in the night in question, stands proved by abundant evidence which would manifestly suggest that 13/14 dacoits raided the house, and indulged in violence against persons and property of the inmates, in course of which one Chandrika Sharan Singh was also shot dead. On going through the recitals in the fardbeyan and also the evidence of witnesses, we are of the view that the appellant participated in the dacoity along with several other persons exceeding the requisite number of persons for the said offence. On going through the recitals in the fardbeyan and also the evidence of witnesses, we are of the view that the appellant participated in the dacoity along with several other persons exceeding the requisite number of persons for the said offence. This fact cannot be lost sight of that the appellant was not a stranger for the house inmates, as he was working in the house for quite some time and this was admitted even by the appellant in his statement rendered u/s. 313, Cr.P.C. and in this backdrop, it was most likely that the witness would identify the appellant. Though Dharmashila Devi, one of the house inmates, who claimed identification of the appellant, was not examined at trial, since we have found the evidence of Bijay Kumar (P.W. 3) quite credible, we endorse the findings recorded by the Court below recording conviction u/s. 396 Indian Penal Code, 1860 . The defence of the appellant that since there was a quarrel for payment of wages, he was falsely roped in the case, is simply a bald statement made by the appellant which he rendered before the Court during his examination u/s. 313, Cr.P.C. for which no evidence was laid at trial on this score. 9. Having given our due consideration to the facts and also the evidences placed on the record, while upholding the conviction recorded against the appellant by the trial Court, we endorse the finding of guilt and also sentence imposed on him. There being no merit, this appeal is accordingly dismissed. P.K. Sinha, J.:I agree.