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2003 DIGILAW 649 (PAT)

Nand Kishor Sah v. State Of Bihar

2003-07-03

BRAJ NANDAN PRASAD SINGH

body2003
Judgment BRAJ NANDAN PRASAD SINGH, J. 1. As it was night. Sudama Sah who had alighted from a train at Gaya Railway Station on completion of his journey from Dhanbad, stayed in the portico of railway junction with his attache. In the early morning at about 3.00 a.m., one unknown person came and having developed his proximity with him, became hospitable to him and offered him a laddu, on consumption of which Sudama Sah felt loss of senses and eventually he regained consciousness in the Pilgrim Hospital, Gaya. He also found his attache missing from his possession. It so happened that thereafter while Sudama Sah was going to Railway Station in the company of two police constables, he happened to notice at platform No. 1, a person with attache, and on identification, alarms were raised, pursuant to which the person who disclosed his name to be Nand Kishore Salt and happens to be the appellant, was nabbed with stolen goods which include wearing apparels and Rs. 3,285/-. It was alleged that he acknowledged his guilt and during apprehension also suffered injuries on his person, and with these accusations, fardbeyan of Sudama Sah (PW 2) was recorded by Police Officer at Gaya G.R.P.S. on 6th October, 1998 at 13.00 hours, pursuant to which investigation followed. During investigation, the Investigating Officer recorded statement of a number of witnesses and on conclusion of investigation laid charge-sheet before the Court. In the eventual trial that followed, the State examined altogether two witnesses who were Sudama Sah. the victim (PW 2) and Mahesh Singh, a constable (PW 1). 2. The defence of the appellant both before the Court below and this Court had been that of innocence and he ascribed his false implication without assigning any good reasons. The trial Court, however. negativing contentions raised on behalf of the appellant, recorded finding of guilt against the appellant under Section 328 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of ten years. The appellant was also sentenced to pay a fine of Rs. 2,000/-, in default of which, he was to undergo further rigorous imprisonment for a term of one year. The appellant was also sentenced to pay a fine of Rs. 2,000/-, in default of which, he was to undergo further rigorous imprisonment for a term of one year. The appellant suffered conviction also under Section 379 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of two years and lastly, for his conviction also under Section 411 of the Indian Penal Code he was sentenced to suffer rigorous imprisonment for a term of two years with direction that all sentences shall run concurrently. As directed by the trial Court, realisation of fine if so made was to be given to the informant. 3. Submission made at bar on behalf of the appellant was that since the victim Sudama Sah had turned volte face to the State either about identification of the appellant at trial or appellant being the same person who administered poisonous substance to him at railway station, the finding recorded by the trial Court under Section 328 of the Indian Penal Code was not sustainable. In similar fashion, contentions are raised that it is admitted fact that except victim, there had been no other witness to the commission of theft of attache from possession of Sudama Sah, and since Sudama Sah had disowned allegation attributed to the appellant about commission of theft of attache by him, conviction recorded on that count vanishes. Conviction recorded under Section 411 of the Indian Penal Code too is sought to be assailed on the ground that in view of evidence of the victim which are negative in nature, the appellant cannot be saddled with accusation of recovery of stolen goods from his possession, and that apart, since even Mahesh Singh, PW 1, had failed to give proper description of the articles which allegedly seized from possession of the appellant, conviction and sentence recorded on that count is unwarranted. 4. First, I may take into consideration the evidence of Sudama Sah, PW 2, for appreciation of contentions raised on behalf of the appellant. The victim has reiterated his earliest version about a person administering poisonous substance to him at Gaya railway junction where he had alighted from a train and about identification of the appellant, while he was in dock, during trial, he had turned volte face to the State. The victim has reiterated his earliest version about a person administering poisonous substance to him at Gaya railway junction where he had alighted from a train and about identification of the appellant, while he was in dock, during trial, he had turned volte face to the State. This fact too cannot be lost sight of that the victim had entered into compromise with the appellant. It seems that the victim being obsessed with the factum of compromise had disowned allegations at trial. Now 1 switch over the evidence of Mahesh Singh, PW 1 who states that while Sudama Sah was in his company, while coming from Pilgrim Hospital, he claimed identification of the appellant at railway platform No. 1, and after seizure of attache, found in possession of the appellant was effected, the appellant claimed the property of his own. Though much stress was given at Bar that since two seizure list witnesses had not been examined at trial, assertion made by Mahesh Singh PW 1 about seizure of stolen goods from possession of appellant did not bear legal value. This fact cannot be lost sight of that apart from assertion made by PW 1, seizure of belongings of Sudama Sah from possession of appellant was acknowledged by both the witnesses. Learned counsel would however urge that the appellant has remained in custody for more than two years. 5. Having given my anxious and deepest consideration to the evidences placed on the record, while finding recorded by the trial Court under Section 328 and 379 of the Indian Penal Code is set aside, conviction of the appellant under Section 411 of the Indian Penal Code is upheld and the appellant who is shown to be in custody for more than two years, his sentence is reduced to the period already undergone by him and with these modification, appeal partly succeeds. Since appellant happens to be in custody, he is directed to be released forthwith if not wanted in any other case. 6. In the result, this appeal partly succeeds.