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2003 DIGILAW 1156 (PAT)

Kamlesh Singh v. State Of Bihar

2003-11-11

BRAJ NANDAN PRASAD SINGH

body2003
Judgment Braj Nandan Prasad Singh, J. 1. Though appellant and nine others were put on trial on various charges, others having been acquitted by the trial Court, appellant alone suffered conviction under sec. 411 of the Indian Penal Code ( Indian Penal Code, 1860 ), for which he was sentenced to suffer rigorous imprisonment for two years. 2. Factual matrix--In the written report it was alleged by Sheo Sundar Singh PW 1 that when shouts were raised by him, on noticing appellant and others removing paddy bundles from khalihan of Chandrika Sao and Dukhan Baitha, appellant resorted to firing but the aim was lost. However, when appellant resorted to firing twice, Binda Baitha suffered injuries on his person. After Police case had been registered on strength of written complaint of Sheo Sunder Singh, investigation followed, in course of which Investigating Officer in process of collection of evidence recorded statement of witnesses, took steps for apprehension of the accused persons, found bundles of paddy lifted from khalihan of Chandrika Sao and Dukhan Baitha in khalihan of the appellant, and seized 400 paddy bundles from there. After charge sheet was laid before Court, trial commenced. At trial, the State examined ten witnesses including the person who set the Police in motion, the person who was the owner of the field, those two persons who had been cultivating said land, doctor, seizure list witnesses, person who took paddy bundles on Jimmanama and also the Police Officer. 3. Defence of the appellant both before Court below and this Court had been that of innocence and he ascribed false implication due to previous animosity, Defence, however, had not chosen to examine any witness, and the trial Court on consideration of evidences available on the record, while acquitting others, recorded finding of guilt u/s. 411 Indian Penal Code, 1860 against appellant alone, and sentenced him in the manner stated above. 4. For a moment I may advert to the evidence available on the record, and I find Sheo Sunder Singh PW 1 reiterating his earliest version about removal of paddy bundles from khalihan of Chandrika Sao and Dukhan Baitha, by appellant and others. Then on being questioned, appellant also resorted to firing. Dukhan Baitha PW 2 one of those from whose field paddy bundles were removed, had however, turned volte face to the State. Then on being questioned, appellant also resorted to firing. Dukhan Baitha PW 2 one of those from whose field paddy bundles were removed, had however, turned volte face to the State. Chandrika Sao PW 3 one of them, however, stated about removal of paddy bundles from his field and also about seizure of paddy bundles from khalihan of the appellant. Binda Baitha PW 4 who was suggested to have sustained injuries, had turned volte face to the State. Dr. Baliram Prasad Gupta PW 9 stated to have found linear abrasion and circular abrasion on his person, when he examined him. Dinesh Kumar Singh PW 5 was not ocular witness either to removal of paddy bundle or seizure of them from khalihan of the appellant. He states to have got information about removal of paddy bundles and its seizure, from filed of khalihan of the appellant. Though Nagendra Kumar PW 6 stated to have noticed 60/70 persons carrying paddy bundles on their heads, he did not claim to identify them. Rajeshwar Singh PW 7 and Hridyanand Singh PW 8 were witnesses to the seizure of paddy bundles from the field of the appellant. Entrustment of paddy bundles, allegedly seized from khalihan of the appellant was made to Rajeshwar Singh PW 7, for which he testified in his evidence. Hridya Narain Singh PW 10, the Investigating Officer, stated to have carried out investigation of the case, pursuant to registration of a Police case on strength of written complaint of Sheo Sunder Singh. He visited place of occurrence, noticed trails of paddy right from khalihan of Dukhan Baitha and Chandrika Sao to the khalihan of appellant, and made seizure of paddy bundles from appellants khalihan. This is all the evidence. 5. Contentions raised on behalf of appellant was that though appellant and nine others were put on trial on various charges, for majority of accusations, appellant and others had been acquitted of the charges by the trial Court, and in that backdrop, bonafide of accusations attributed to the appellant was open to question. This is all the evidence. 5. Contentions raised on behalf of appellant was that though appellant and nine others were put on trial on various charges, for majority of accusations, appellant and others had been acquitted of the charges by the trial Court, and in that backdrop, bonafide of accusations attributed to the appellant was open to question. Contentions are raised that since appellant had been acquitted of the charge u/s. 379 Indian Penal Code, 1860 for accusation of removal of paddy bundles, conviction recorded u/s. 411 Indian Penal Code, 1860 was fallacious and misconceived, there being no clinching evidence on the record about paddy bundles in question allegedly found in khalihan of the appellant to be part of the booty. Referring to evidence of Dukhan Baitha, Contentions are raised that even though he was most concerned person about, theft of paddy bundles allegedly made from his khalihan he did not lend assurance to prosecution allegation about commission of theft of paddy bundle from his khalihan. Referring to testimony of Binda Baitha PW 4, comment is that prosecution version about Binda Baitha suffering gun shot injury had been disbelieved by Court, and while commenting on bonafide of the prosecution version, my attention has been drawn to the evidence of Jageshwar Singh PW 7 and Hridya Nand Singh PW 8. It is sought to be urged that if evidence of these two witnesses were given any consideration, assertion of the prosecution about they having witnessed seizure of paddy bundles from khalihan of the appellant was completely lost. Learned counsel for the State while resisting contentions raised on behalf of the appellants would, however, highlight evidence of PW 1 and also the Investigating Officer who testified about seizure of paddy bundles from khalihan of the appellant. Learned counsel for the State while resisting contentions raised on behalf of the appellants would, however, highlight evidence of PW 1 and also the Investigating Officer who testified about seizure of paddy bundles from khalihan of the appellant. True it is that though there has been no finding of the trial Court about commission of theft of paddy bundles from khalihan of Dukhan Baitha PW 2 and Chandrika Singh PW 3 by the appellant, if evidence of PW 1, which is also corroborated by the objective finding of the Investigating Officer, was to be given any credence, that leads to the conclusion about seizure of paddy bundle from khalihan of the appellant, and that apart, though Rajeshwar Singh PW7 had disputed preparation of seizure memo at the place of occurrence, he did not deny in explicit terms, either seizure of paddy bundles or entrustment of it to him. A pointed question was put to him by the Court as to whether the property given to him on Jimmanana was still in custody, he simply replied that it was not in his custody but that did not necessarily lead to the conclusion that he had denied seizure of the paddy bundles from possession of the appellant. Hridyanand Singh PW 8 too had acknowledged his signature on the seizure memo though he disputed its preparation at the place of occurrence, and in view of evidence of these witnesses, inference that can be drawn was that the paddy bundle found in khalihan of the appellant was part of booty, and that apart, I find that occurrence had taken place at 6 p.m. on 10.12.1986, and on the following day at 11.30 a.m. there had been seizure of paddy bundles from khalihan of the appellant, and since proximity between removal of paddy bundle and its seizure from khalihan of the appellant was quite short, that too would lead to an inference about paddy bundles found in khalihan of the appellant to be stolen property to make him answerable for the charge u/s. 411 Indian Penal Code, 1860 . 6. 6. However, it is highlighted at Bar that though the appellant remained in custody for a very insignificant period during trial, this mitigating circumstance may not be lost sight of that he had suffered agony of protracted prosecution for about 17 years, and in that view of the matter, regard being had to the nature of accusation attributed to the appellant, and also that he happened to be none else but the agnate of Sheo Sunder Singh, while upholding finding of guilt recorded by trial Court, sentence awarded to him is altered to a sentence of fine of Rs. 500.00 (five hundred), and in default, to suffer rigorous imprisonment for five months, and with this modification in sentence, this appeal is accordingly dismissed. Amount of fine must be deposited with the trial Court within two months of the production/ receipt of a copy of this judgment.