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2003 DIGILAW 64 (PAT)

Kamruddin Ansari @ Thakra v. State Of Bihar

2003-01-17

S.N.PATHAK

body2003
Judgment 1. This appeal is directed against the judgment dated 14.8.91 passed by the Sessions Judge, Nawadah, in Sessions trial no. 97/90. The two appellants were convicted under section 395 IPC and they were sentenced to undergo Rl for 8 years. 2. The prosecution case originated on the fard beyan of Nageshwar Modi, wherein he alleged that on 17.10.89 he had left his village at 6 a.m. in the company of Suchit Modi, Govind Modi in the tractor no. MRS 2970. The informant was going to Kawakole to fetch rice, wheat and sweet potatoes also. At about 10 a.m. when the informant reached Jogia Asthan west of Kawakole, his tractor was surrounded by 8 to 10 persons who came out from the adjoining bushes. The marauders were armed with pistols, lathis, daggers etc. Pistol wielding culprits asked the occupants of the tractor not to raise alarm otherwise they would be killed. The tractor driver stopped the tractor out of fear and then one of the culprits entered into the tractor. One of the dacoits took out Rs. 4300/- from the pocket of the informant. Another dacoit relieved Suchit Modi of Rs. 2205/-, Govind Modi was also relieved of his belongings. The other dacoits had kept the tractor occupants under seize. In the meantime, two passersby came to the place of the occurrence on cycles who were also relieved of their belongings including their cycles. The dacoits thereafter fled towards the village Badildih. The tractor driver, namely, Md. Hakim, identified Akbar Mian and Kamruddin Ansari @ Thakra and Murshid Alam among the dacoits. The dacoits had in their possession cycles including looted cycles on which they fled away. The informant chased the dacoits to some distance raising alarm throughout. Then the villagers from Mahalia Tanr, Badildih also chased the dacoits. Two of the dacoits (appellants) were arrested by the villagers and from the possession of Kamruddin an amount of Rs. 656/- was recovered and from the possession of Murshid looted cycle no. R. 878804 was recovered. 3. The accused-appellants took up the defence of false implication. 4. The prosecution examined in all 9 witnesses and brought on record the fardbeyan (exhibit 3), production list (exhibit 1), formal FIR (exhibit 5) to prove its case. PW 9 was the l.O. of the case. R. 878804 was recovered. 3. The accused-appellants took up the defence of false implication. 4. The prosecution examined in all 9 witnesses and brought on record the fardbeyan (exhibit 3), production list (exhibit 1), formal FIR (exhibit 5) to prove its case. PW 9 was the l.O. of the case. The evidence of this witness is significant in so far as he states that the recovered cycles and the cash were put in a sealed cover and consigned to Thana Malkhana; but PW6 who was examined in court and who produced the recovered cash after bringing the same from Thana Malkhana, did not produce it in a sealed cover. He in crossexamination by the accused said that notes which he were producing in court were not sealed nor there was any signature of any officer on the same. He further stated that cycles and the cash were not kept in court Malkhana. In chief, he said that he brought those articles from Kawakole police station. PW7 Brahmdeo identified his cycle in court which was exhibited as material exhibit. In this connection, the evidence of PW4, informant, himself is relevant and at para-7 he has said that cycle was given to its owner on Jimenama. In such circumstance, it is not understandable how the aforesaid cycle was brought from Thana Malkhana. So, it appears that the concerned cycle was produced in court from the custody of Brahmdeo himself who was examined in the court on 2.2.91. On the same day, PW6 was also examined. So seizure of the concerned cycle as also Rs. 656/- from the possession of any of the appellant becomes suspect in view of the fact that the seizing authority...........police officer concerned............neither followed the settled norms regarding the seizure the production, nor he put the seized articles under sealed cover after affixing his signature on the same and after obtaining signature of those persons by whom, these articles were seized or produced. Besides. the aforesaid circumstances on record, the evidence of PWs 1, 2, 3, 4, 5, 7 as also PW8 had to be examined to find out whether there was an occurrence as alleged by the informant in the fardbeyan and whether the two appellants had participated in the alleged occurrence. 5. In this connection, the fardbeyan itself shows that two appellants were perhaps identified at the spot by Md. Hakim. 5. In this connection, the fardbeyan itself shows that two appellants were perhaps identified at the spot by Md. Hakim. driver of the tractor, and so they were named in the FIR itself. They having been named, there is no surprise that they would be arrested either by the police or by the concerned villagers if the villagers, as alleged, had arrested these two persons. Their arrest by the police will be a natural one for the reasons that they were very much named in the fard beyan itself; but the prosecution case is that they were arrested by the chasing villagers at Mohalitar Badildih. The surprise of the surprises is that none of the villagers of the aforesaid village were either named in the chargesheet as witnesses nor they were examined by the prosecution to support the fact that, of course, two appellants were arrested by the chasing villagers. This negative circumstance in the prosecution case would certainly throw doubt whether two appellants had participated in the alleged occurrence, as alleged, and at the alleged place of the occurrence, and they were arrested on chase by the villagers or even by the persons who were the occupants of the tractor and they had chased the dacoits to what distance. The l.O. in examination-in-chief said that he did not examine the villagers of Badildih whore- covered cash from the accused. The omission of the 1.0. would also add the circumstance whether the appellants were arrested on chase as they were suspected to have participated in the alleged occurrence. In this connection, the evidence of PWs 1 and 7 also gain significance. PW1 was one of the passersby who was also relieved of his belongings by the alleged dacoits. In chief, itself, this witness said that he failed to identify any of the culprits. In crossexamination by the accused, he said that predators had covered their faces and he (this witness) was unable to see their faces. PW7 Brahmdeo Ravidas, who was another victim of the alleged road robbery also said in cross-examination at para 3 that marauders had covered their faces and on account of their concealed faces, this witness was unable to see their faces and identify them. He also failed to identify the accused in dock. PW7 Brahmdeo Ravidas, who was another victim of the alleged road robbery also said in cross-examination at para 3 that marauders had covered their faces and on account of their concealed faces, this witness was unable to see their faces and identify them. He also failed to identify the accused in dock. He further stated in positive statement that those who were arrested were neither arrested by this witness nor by the occupants of the tractor. The appellants were arrested at a distance of 1-1½ K.M. from the place where the occurrence took place. On court question, this witness said that the appellants were arrested in presence of the villagers. In such circumstances, this witness should have been able to identify the two appel lants in court, but his positive statement that he was unable to identify them in dock indicates that it was doubtful whether the two appellants who were named in the fard beyan itself were arrested on chase either by the villagers or by the victims of the loot and plunder, as alleged. In view of the fact that the evidence of these two passersby was to the effect that the dacoits had covered their faces, it is also not understandable how the driver of the tractor could identify the two appellants at the spot and named them in the fardbeyan itself. The recovery of the cycle and the cash from the possession of two appellants might be a piece of evidence against them con cerning the allegation that they had participated in the occurrence; but the manner in which the allegedly recovered articles were dealt with by the police, it is doubtful, whether of course, there was recovery as alleged from the possession of the appellants. The cycle in question was made over to its owner on Jimeyanama, but it had to be produced from Thana Malkhana as per evidence of PW6. So it was doubtful whether the seized cycle was kept in Thana Malkhana, whether it was produced by the concerned witness in court, whether it was, of course, made over to him on Jimeyanama. The paper, in this connection, which was brought on record of this case-production cum-seizure list, exhibit I, shows that the articles were produced at the police station by Basant Lai, ASI of Khaira police station. This witness was not examined in court. The paper, in this connection, which was brought on record of this case-production cum-seizure list, exhibit I, shows that the articles were produced at the police station by Basant Lai, ASI of Khaira police station. This witness was not examined in court. Moreover, it is not clear from the evidence that it was Basant Lal who had seized the concerned materials. So those persons who had arrested the culprits should have been referred to as recovering the articles and producing the same in the police station. The concerned "Jimeyanama" to which PW4 referred to was not brought on record of the case. 6. So far the occurrence, in particular, is concerned, PWs to whom l have referred to above, support the occurrence as alleged, but the moot question was whether the two appellants had participated in the occurrence. The evidence and circumstances which l have discussed above show that the evidence of the prosecution witness regarding participation of two appellants is redolent with serious doubts. So, I am of the opinion that their conviction was not based on sufficient, unimpeachable, and positive evidence. 7. In the result, this appeal is allowed. The appellants shall stand acquitted and discharged from the bail bonds.