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2003 DIGILAW 604 (JHR)

Sarbala Dhekaro v. State of Bihar (Now Jharkhand)

2003-05-12

VISHNUDEO NARAYAN

body2003
Judgment By Court.- This appeal has been preferred by the appellants named above against the impugned judgment and order dated 15.12.1989 passed in Sessions Case No. 135 of 1983 by Shri Sushi I Kumar Dwivedi, Sessions Judge, Santhal parganas, Dumka whereby and whereunder all the appellants named above were found guilty for the offence punishable under Section 412 of the Indian Penal Code and they were convicted and sentenced to undergo R.L for five years. However, they along with co-accused Bucha Singh Paharia were not found guilty for the offence under Section 396 of the Indian Penal Code and they were, accordingly, acquitted in respect thereof. 2. According to the prosecution case, a dacoity was committed in the house of P.W.2 Chotu Hembram, the informant situate in village Sindurdih P.S. Raneshwar, District Santhal parganas, Dumka in the night between 17th and 18th March, 1982 and in course of dacoity several household effects detailed in the fardbeyan (Ext. 4) have been taken away by the dacoits and in course of the commission of the said dacoity Dugga Hembram, the brother of the informant, was killed in the lane adjacent outside the house of the informant by explosive substance. It is alleged that some of the dacoits had entered into the house of the appellants forcibly opening the main door of the house of the informant and two of the dacoits had entered the house of the informant by scaling the eastern wall of the house. According to the fardbeyan P.W.2, the informant, his wife, P.W.3 Lukhi Murmu, and his two niece, namely, P.WA Mangli Hembram and P.W.5 Chita Marandi were present in the house but none of them have identified any of the dacoits participating in the said dacoity. On the basis of the said fardbeyan which was recorded on 19.03.1982 at 9.00 hours at the house of the informant by B.C. Murmu, Officer-in-Charge Tongra outpost of Raneshwar P.S., a case under Section 396 of the Indian Penal Code was instituted against unknown dacoits by drawing the formal FIR (Ext.5) on 20.03.82 at 7.15 hours in Raneshwar, P.S. Oumka, Santhal Parganas. In course of investigation some articles as per Ext. In course of investigation some articles as per Ext. 7 series were recovered from the house of the appellants and those articles are said to be the subject matter of the dacoity committed in the house of the informant and those articles were also put on T.I.P. which were identified by P.W.2, the informant and his wife P.W.3 Lukhi Murmu and the aforesaid appellants were brought to book in this case for trial. 3. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case on mere suspicion. It has also been contended in their statement under Section 313 of the Cr. P.C. that the alleged recovered articles are not the booty of the dacoity rather those articles belong to the appellants. 4. The learned court below relying upon the testimony of P.W.2, the informant, and P.W.3 Lukhi Murmu read with the testimony of P.W.8 Keshri Nath Jha coupled with the objective finding of P.W.7, the I.O. found the appellants guilty for the offence under Section 412 of the Indian Penal Code and convicted and sentenced them as stated above. 5. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by the learned counsel for the appellants that .the learned court below has committed a manifest error in coming to the finding of the guilt of the appellants and he has failed to scrutinize the evidence on the record meticulously and in proper perspective. Elucidating further it has been submitted that there is no legal evidence at all on the record to substantiate the fact of the recovery of one new umbrella and two pieces of markin (rough Cloth) 2 meter and 2 1/2 meter respectively from the house of Sarbala Dhekaro as per Ext. 7, one new Dhoti of blue border and one old Dhoti as per seizure list Ext. 7/1 from the house of appellant Anil Dhekaro and one Dhoti of blue border as per seizure list Ext. 7/2 from the house of appellant Sunil Dhekaro being the booty of the dacoity as all those aforesaid articles are things of common variety easily available in the open market. 7/1 from the house of appellant Anil Dhekaro and one Dhoti of blue border as per seizure list Ext. 7/2 from the house of appellant Sunil Dhekaro being the booty of the dacoity as all those aforesaid articles are things of common variety easily available in the open market. It has also been contended that the aforesaid articles are personal belonging of the appellant and those articles have no concern whatsoever with the alleged subject matter of the dacoity. It has also been submitted that there is no averment in the fardbeyan (Ext. 4) of P.W.2, the informant that markin (rough cloth) and new umbrella were taken away from his house by the dacoits and regarding the Dhoti, the colour of the border has also not been mentioned therein and the very averment of the informant in respect thereof suffers with vagueness and ambiguity. It has further been submitted that Sanat Kumar and Kali Charan Mandai figured as the witnesses of the search of the house of the appellants as well as the alleged recovery of the said incriminating articles and seizure in respect thereof but they have not taken oath in this case in support of the prosecution case for the reasons best known to. the prosecution and in the absence of their testimony in respect thereof the prosecution case implicating these appellants in this case on the basis of the alleged recovery has to be thrown on this score alone. It has also been submitted that even the recovered articles as per Ext. 7 have not been sealed by the I.O., and also not brought before the court in course of trial and furthermore those articles did not bear any distinct marking put by the I.O. when placed before P.W.8 Keshri Nath Jha, B.D.O.-cum-C.O. of Masalia Block who had conducted the T.I.P. of the aforesaid articles and without giving any specific marking, the said articles have been mingled by P.W.8 with other articles of similar nature and it appears highly improbable as to how P.Ws. 2 and 3 shall identify the articles having been recovered from the house of the appellants in such a situation and even P.W. 8 conducting the T.I.P. has also not put any specific mark on the alleged recovered articles from the house of the appellant and in this view of the matter the T.I.P. suffers with legal infirmities vitiating the identification of the aforesaid articles being the booty of dacoity taken away from the house of the informant. It has also been submitted that neither the fardbeyan nor the evidence of the informant discloses the colour of the border of the new Dhoti which have been taken away by the dacoits from his house. P.W.3 Lukhi Murmu in her examination-in-chief also does not whisper in respect of Dhoti and markin (rough cloth) being the subject matter of the dacoity committed in her house. P.W.2 has deposed that there were some marks of rainfall on the markin (rough cloth) and with the help of that mark he has identified the said markin (rough cloth) belonging to him. Lastly it has been contended that the search and seizure in question was made by the I.O. from the houses of the appellants in which there was no person present and the said house was a vacant house coupled with the fact that those recovered articles were not sealed by the I.O. and as such the seizure in respect thereof suffers with legal infirmities and the seizure is also not corroborated by the evidence of the seizure witnesses and in this view of the matter the impugned judgment is unsustainable. 6. The learned A.P.P. has submitted that the incriminating articles have been recovered by P.W.7, the I.O. from the houses of the appellants which were identified in the T.I.P. by P.Ws. 2 and 3 before P.W. 8 who had conducted the T.I.P. in respect thereof and the recovery of the aforesaid articles duly identified by P.Ws. 2 and 3 implicate the appellants in the occurrence in question and in this view of the matter there appears no illegality in the impugned judgment. 7. 2 and 3 before P.W. 8 who had conducted the T.I.P. in respect thereof and the recovery of the aforesaid articles duly identified by P.Ws. 2 and 3 implicate the appellants in the occurrence in question and in this view of the matter there appears no illegality in the impugned judgment. 7. There is no denying the fact that the dacoity has been committed in the house• of P.W.2, the informant situate at village Sindurdih, P.S. Raneshwar, District Dumka, Santhal parganas in the night between 17th and 18th March, 1982 in which his brother Dugga Hembram was done to death in the lane outside his house caused by explosive substance. Fardbeyan of P.W.2, the informant was recorded by the O.C. Tongra outpost of Raneshwar P.S. on the following day at 9.00 hours at the house of the informant in which details of the household effects and other articles have been mentioned which were taken away by the dacoits. There are references of fifteen new cotton Dhoti and two old umbrellas in the list of the articles taken away by the dacoits from the house of the informant and aforesaid two articles are relevant so far the aforesaid appellants are concerned. It is equally pertinent to mention here that there is no reference of markin (rough cloth) and a new umbrella having been taken away by the dacoits in the occurrence in question. It is also pertinent to mention here that the colour of the border of the said new cotton Dhoti has also not been mentioned in the fardbeyan. In course of investigation the houses of the appellants were searched by P.W.7, the I.O. on 21.03.1982 allegedly in presence of Sanat Kumar and Kalicharan and their houses were searched admittedly in their absence as well as in the absence of their family members and their houses were also not under lock. P.W.7 is the seizure list regarding the recovery of two pieces of marking of 2 meter and 2 1/ 2 meters respectively and one new umbrella recovered from the house of appellant no.1 Sarbala Dhekaro. Both these recovered articles appear to have no corelation with the booty of the dacoity committed in the house of the informant as those articles do not find mentioned in the averment made in the fardbeyan. Ext. Both these recovered articles appear to have no corelation with the booty of the dacoity committed in the house of the informant as those articles do not find mentioned in the averment made in the fardbeyan. Ext. 7/1 is the seizure list regarding the recovery of one new Dhoti having blue border and one old Dhoti from the house of appellant no.2 Anil Dhekaro. Ext. 7/2 is the seizure list in respect of the recovery of one new Dhoti of blue border from the house of appellant no.3 Sunil Dhekaro. P.W.7, the I.O. has deposed to have recovered the aforesaid incriminating articles from the houses of the appellants in presence of the witnesses and to have prepared the seizure list aforesaid. Sanat Kumar and Kali Charan figured as witnesses on the seizure list aforesaid but they have not taken oath in this case to substantiate the fact of search of the house of the appellants, recovery of the incriminating articles aforesaid and the preparation of the seizure list by P.W.7, the I.O. Therefore, the evidence of the I.O. regarding search, recovery and seizure of the aforesaid incriminating articles has not at all been substantiated by any legal evidence on the record by the witnesses of search in respect thereof. Therefore, the very recovery of the incriminating articles do not stand established in this case and, therefore, putting them on T.I.P. and their identification in the said T.I.P. pales into insignificance and loses its relevancy. However, it is pertinent to mention here that the T.I.P. conducted by P.W.8 suffers with legal infirmities i.e. the recovered articles were not produced before him under the seal of the I.O. and P.W.8 has also not put any specific identification mark on those articles before mingling them in the articles of similar kinds before holding T.I.P. which casts a cloud of suspicion to the very credibility of the authenticity of the identification of those articles by P.Ws. 2 and 3. And last but not the least, the aforesaid recovered articles are things of common variety easily available in the market. Therefore, there is no iota of legal evidence at all on the record to connect the appellants with the aforesaid recovered articles as the subject matter of the dacoity committed in the house of P.W.2, the informant. 2 and 3. And last but not the least, the aforesaid recovered articles are things of common variety easily available in the market. Therefore, there is no iota of legal evidence at all on the record to connect the appellants with the aforesaid recovered articles as the subject matter of the dacoity committed in the house of P.W.2, the informant. Furthermore the aforesaid articles being of common variety easily available in the market can be possessed by the appellants and specially when they claim those articles as their own in the statement under Section 313 of the Cr.P.C. and as such the recovery of those articles does not connect the appellants with the dacoity in question vis-a-vis those articles being the subject matter of the dacoity. Therefore, the recovery of the aforesaid articles does not unerringly and unmistakably lead to the hypothesis of the guilt of the appellants. The learned court below has committed a manifest error in not scrutinizing the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellants. Therefore, the impugned judgment suffers with manifest illegalities and there is no legal evidence at all on the record even to connect or implicate the appellants with the occurrence in question. Therefore, the impugned judgment is unsustainable. 8. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. All the appellants named above are found not guilty to the charge levelled against them and they are, accordingly, acquitted and also discharged from the liability of their bail bonds.