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2002 DIGILAW 952 (JHR)

Sunil Gowala @ Sunil Gope Etc. v. State Of Bihar

2002-08-30

HARI SHANKAR PRASAD

body2002
JUDGMENT Hari Shankar Prasad, J. 1. Both Criminal Appeal Nos. 104 and 106 of 1996 (R) have arisen out of same judgment and order of sentence dated 27.11.1996 passed in Sessions Trial No. 392/97 under Sections 395 and 412, IPC, are being disposed of by this common judgment. Both the appeals are directed against the judgment dated 27.11.1996 passed in Sessions Trial No. 392 of 1987, whereby the Ist Additional Sessions Judge; Gumla held the appellants guilty under Sections 395 and 412, IPC. Appellant Fedrik Minj (in Cr. Appeal No. 104/96) was found guilty under Section 395, IPC and was sentenced to undergo RI for seven years and also to pay a fine of Rs. 500/-. Other appellants Ernious Ekka, Sunil Ekka, Kamil Lakara and Tintus Ekka were held guilty under Section 412, IPC and they were sentenced to undergo RI for five years and to pay a fine of Rs. 500/-. 2. Prosecution case in brief is that one Sharan Ohdar (informant) gave a fardbeyan on 8.8.1996 that he worked as Khalasi at Tudurma and reside in the house of Moti Lal Sao as a tenant. On the previous night i.e. 7.8.1996 at about 9.00 p.m. while he was in his room after having his supper, some one knocked at his door and on his query, replied that they came to purchase biscuits but informant refused to open the door. They broke the door and forced their entry inside the room. The persons, who had entered the room were four in number and were carrying bhujali, knife, balua and have torch with them. They went to the room of Mannu Sao and demanded money from him but on pointing out by Manu Sao that the money is in the box, they broke upon the box and looted away the belongings. Thereafter they fled away locking the door from outside. After they left the place with the booty, then informant and Manu Sao raised alarm and people in the neighbourhood started assembling there. The marauders had removed belongings from a small box. The culprits appeared to be Lhe tribal in appearance and were dressed in lungi and Turban and were short in stature and dark complexioned. They were talking in Hindi as well as in Tribal language amongst them. Out of the looted articles, some articles were recovered and were put on TI parade and were identified by the witnesses. The culprits appeared to be Lhe tribal in appearance and were dressed in lungi and Turban and were short in stature and dark complexioned. They were talking in Hindi as well as in Tribal language amongst them. Out of the looted articles, some articles were recovered and were put on TI parade and were identified by the witnesses. Further, some of the suspects when arrested, were put on TI Parade and were identified by the witnesses. The case was earlier registered under Section 392, IPC but later on police submitted charge-sheet under Section 395/412, IPC. 3. From the trend of statements of the appellants recorded under Section 313, Cr PC and from the trend of cross-examination of the witnesses, defence has taken a plea of false implication. On the basis of evidence, both oral and documentary, the learned trial Court came to the finding and held the appellants guilty and convicted them as aforesaid. 4. Assailing the judgment, the learned counsel appearing for the appellants in both the appeals, submitted that there are serious contradictions in the statements of eye-witnesses fatal for the prosecution. It was also pointed out that TI Parade was conducted in an atmosphere which was not proper because before putting the appellants on TI Parade they were shown to the witnesses and the appellants were put on TI Parade after several days of their arrest. The dacoity was cornmitted when light was put off and in the darkness it was Impossible to see the faces of the dacoits. It was also pointed out that no recovery of looted articles was made in presence of witnesses but witnesses were pressurized to put their signatures on the seizure list. It was also pointed out that the officer, who conducted the TI Parade was not examined. 5. PW 1 is Mannu Sao @ Binod Sao. Mannu Sao has deposed that on the night of the occurrence he was sitting in his room with his children after taking meal. He heard that some body is asking Sharan Ohdar to open the door on the ground that he wanted to purchase some biscuits but Sharan Ohdar replied that there was no biscuit, whereupon the persons standing out started breaking the door. He heard that some body is asking Sharan Ohdar to open the door on the ground that he wanted to purchase some biscuits but Sharan Ohdar replied that there was no biscuit, whereupon the persons standing out started breaking the door. He has further deposed that the dacoits were demanding money from Sharan Ohdar and four of them entered into the house of Sharan Ohdar, who were armed with deadly weapons like balua, bhujali and dagger. The dacoits entered into the room of this witness also and looted away the ornaments, clothes and a Phillips radio and went away with the looted properties. He has further deposed that while leaving the place the dacoits had closed the door from the outside. He had identified three dacoits namely, Fedrik Anil and Niman. This witness has further deposed that he identified these appellants in the dock also and he had participated in the TI Parade and identified these appellants. He has further deposed that he had participated in the TI Parade and had identified these appellants. He has further deposed that he had participated in the TI Parade of articles also and he had identified the articles which had been looted away from his possession by the appellants. 6. PW 2 is the wife of Mannu Sao (PW 1). She has also stated that a dacoity in the house of Sharan Ohdar as well as in her house was committed. She has further deposed that all the articles were looted away from her house. This witness was also present in the room with her children when the dacoity was committed in her house. She also participated in the TIP and identified three appellants and named Anil and Niman as participants in the commission of crime. She also appeared in TIP of articles and identified the articles stolen away from the h6use in the dacoity. 7. PW 3 is the informant himself. He has deposed that in the night of occurrence he was taking rest in his room after finishing his meal then someone knocked his door and asked for biscuits and on his reply that there was no biscuits, thereafter four of them broken the door and entered into his room with lethally weapons. 7. PW 3 is the informant himself. He has deposed that in the night of occurrence he was taking rest in his room after finishing his meal then someone knocked his door and asked for biscuits and on his reply that there was no biscuits, thereafter four of them broken the door and entered into his room with lethally weapons. They then took him to the house of Mannu Sao (PW 1) where Mannu Sao was compelled to open his door and there they also committed dacoity and looted away the articles. He also participated in the TIP and identified three of them. He also participated in the TIP of articles and identified the articles looted away from his house. 8. PW 4 is the wife of informant (PW 3). She has also deposed exactly on the same line as PWs 1, 2 and 3 have deposed. 9. PW 5 is Chatradhari Singh. He has deposed that PW 1 and PW 3 have stated that dacoity was committed in their house. He further deposed that on 11.8.1996 darogqji has come in the village but no articles were recovered in his presence. He has deposed that he put his signatures on 3 seizure lists (Exts. 1/1 to 1/3). 10. PW 6 is Joseph Tigga. He has deposed that on 11.8.1986 darogqji has come to the village and had searched the house of Mili Ekka and he had prepared seizure lists upon which he had put his signatures (Exts 1/4 to 1/6). He has further deposed that searches were not made in his presence nor any articles were recovered in his presence. 11. PW 7 is Benjamin Kerketta. He has deposed that darogqji has not searched any house in his presence but he identified his signatures on two seizure lists (Exts 1/7 to 1/8). He has further deposed that no searches were made in his presence nor any articles were recovered in his presence. 12. PW 9 is Isha Lakra. He has deposed that darogaji has obtained his signatures on two papers (Exts. 1/9 to 1/10). He has further deposed that his signatures were obtained in the Police Station. 13. PW 11 is Rajeshwar Ram. He is the circle officer. He has deposed that he conducted the TIP of articles after observing all formalities and witnesses appeared in the TIP identified the articles (Exts 2 to 2/12). 14. 1/9 to 1/10). He has further deposed that his signatures were obtained in the Police Station. 13. PW 11 is Rajeshwar Ram. He is the circle officer. He has deposed that he conducted the TIP of articles after observing all formalities and witnesses appeared in the TIP identified the articles (Exts 2 to 2/12). 14. PW 12 is Robert Ekka. He has deposed that on 18.8.1986 darogaji came to the village and searched the house of Pailush Ekka and he has prepared seizure list of seized articles but he had further deposed that articles were not seized in his presence and darogqji asked him to put his initial and he put his signature (Ext 1/11). 15. PW 14 is Birsain Lohra. He has deposed that darogqji came to the village and searched the house of Sunil Ekka and prepared seizure list of seized articles but he cannot say as to what were the articles and he put his signature on the request of darogqji (Ext 1/12). 16. PW 18 is a formal witness, who has proved FIR (Ext 3). He has further proved seizure lists (Exts 4 to 4(G)]. He has further proved pages 1 to 51 of the case diary (Ext 5). 17. Learned counsel appears for the appellants submitted that appellants Federick Minz, Niman Toppo and Anil Kerketta were shown to the witnesses before TIP and in the TIP, since the witnesses had already seen them, identified them so this is not a proper TIP and cannot stand. In law. Learned counsel further potnted out that even the officer, who conducted the TIP of these appellants, did not come to support the holding of TIP and as such there is no identification of the appellants and identifications of the appellants in the dock has got no mention at all. Learned counsel relied upon a number of decisions so that TIP of appellants held in the circumstances cannot be said to be proper and it is not a proper TIP and appellants deserve acquittal on this score. Learned counsel relied upon 1982 PLJR 83. In this case TIP ws held after 3-1/2 months of dacoity. Further is that case the witnesses had not given any description or identification of the dacoits and therefor, TIP was not held to be proper as such the citation is not applicable in the present case. Learned counsel further relied upon 1983 PLJR 31. In this case TIP ws held after 3-1/2 months of dacoity. Further is that case the witnesses had not given any description or identification of the dacoits and therefor, TIP was not held to be proper as such the citation is not applicable in the present case. Learned counsel further relied upon 1983 PLJR 31. In this case witnesses claimed identification while they saw the dacoits from behind at the time when the dacoits were running away and it was night and, therefore, is was held, in such a circumstances, identification of dacoits was impossible. This case also does not apply in the instant case. Learned counsel further placed reliance upon Bandhan Nayak v. State of Bihar, 1985 East Cr C 439 : 1985 PLJR 745, in which it was held that when suspects had already been shown to the witnesses, holding of TIP was meaningless. In the instant case although a plea has been taken that three appellants, who had been identified in TIP by the witnesses, were shown to them before TIP and has been denied by witnesses and as such no cogent material has been brought on behalf of the defence to prove that they were actually shown to the witnesses. However, since the officer, who conducted the TIP, has not come and proved the fact that he held TIP after observing all formalities and as such Identification of appellant in the dock is not enough. In that view of the matter these three appellants are acquitted of the charges under Section 395, 1PC. 18. In course of investigation IO had recovered looted articles from the house of the appellants and those articles were put on TIP and were identified by witnesses but the witnesses, in whose presence TIP was held, have denied that articles were seized in their presence and some of them have stated that those articles were seized in their presence but they have put his signatures on the seizure lists on saying of darogqji. Further IO has not come to prove the seizure lists as he is reported to be dead and in his absence someone came and proved the seizure list to be in his handwriting and signature (Exts 4 to 4/G). Further IO has not come to prove the seizure lists as he is reported to be dead and in his absence someone came and proved the seizure list to be in his handwriting and signature (Exts 4 to 4/G). It further appears from persual of seizure lists (Ext 1/1 to 1/12) that they have not been properly proved because the evidence is that articles have not been recovered in his presence. These exhibits have not been proved in accordance with the provisions of Indian Evidence Act and, therefore, these documents have not been property proved. 19. Since the seizure lists have been properly brought on record and these seizure lists are the basis of prosecution of the appellants and since recovery have not properly been brought on record, they cannot be held liable under Section 412, IPC because the recovery from their respective houses have not been properly brought on record. 20. Considering the discussions made above and after going through the submissions of learned counsel for the appellants and learned State counsel, I am of the view that appellants, who have been held guilty under Section 412, IPC, are fit to be acquitted. 21. In the result both the appeals are allowed and the judgment and order of sentence passed by learned 1st Additional Sessions Judge is hereby set aside. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.