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2003 DIGILAW 792 (JHR)

ASHRAFUL SEIKH v. STATE OF BIHAR (NOW JHARKHAND)

2003-07-09

LAKSHMANA RAO

body2003
Judgment : LAKSHMAN URAON, J. ( 1 ) THIS appeal is directed against the judgment of conviction dated 18-1-1991 and sentence dated 21-1-1991 passed by Sri Sheo Dayal Prasad, learned Additional Sessions Judge, Pakur whereby and whereunder appellant No. 1 has been convicted under Section 412 IPC and sentenced to undergo R. I. for 10 years. Appellant No. 2 has been convicted under section 395 IPC and sentenced to undergo r. I. for 10 years. ( 2 ) THE case of the prosecution arises out of the fardbeyan (Ext. 2) of the informant chhutartadu of village Sundara Pahari, PS-pakur recorded on 1-11-1987 at 10. 00a. m. by S. I. Nawal Kishore Mishra (not examined) regarding the occurrence which took place at 3. 00 a. m. night on the same day on 1-1-1987 when informant Chhutar Tadu was sleeping along with other members of the family in his house. At about 3. 00 a. m. night, someone knocked the western door of his house. When he woke up, he found six persons in his house. Two of them caught hold of him and tied his hand. Inside the house, his wife, sons Madan Tudu (P. W. 3), shiva Tudu (PW5) and Sarkar Tudu were sleeping. When the dacoits searched them, then they, after five minutes, fled away from the house. The dacoits looted 8 Kansa Thali, 3 big Bari, one Lota, 3 small Bati, one Tape, one radio Santosh, silver Hairpin 1 Bhar and cash Rs. 600/ -. The looted articles altogether valued Rs. 2700/ -. After committing dacoity, they fled away. On alarm the villagers assembled and chased them. After chasing one and half k. m. , the villagers apprehended two dacoits who disclosed their names as Wahab seikh (appellant No. 2) and Ratan choudhary. They confessed before the villagers regarding commission of dacoity in the house of one Dipty Tudu (PW1) and the informant Chhutar Tudu (PW. 4 ). They had also looted 7 Kansa Tahli, 4 big Bati, 5 small bati, one Lota, 2 Radios, silver Hasulit Bhari, silver bangles 5 bhars, 2 Dhoti, 3 new Pagri, 2 Torches (one of 3-cell Jeep and another 2-cell Everyday) from the house of Dipty Tudu (PW. 1 ). The looted articles were valued rs. 2800/ -. From the possession of Wahab seikh (appellant) and Ratan Choudhary, one 3 cell jeep torch, 2 new Dhotis and 3 new pagris were recovered. 1 ). The looted articles were valued rs. 2800/ -. From the possession of Wahab seikh (appellant) and Ratan Choudhary, one 3 cell jeep torch, 2 new Dhotis and 3 new pagris were recovered. They also disclosed the names of their other associates as Khalid seikh, Yusuf Seikh, Mallick Seikh, Daku @ samshul, Habul Seikha, Kamu Seikh, lakara Seikh and Samad Seikh. On the basis of fardbeyan, formal FIR (Ext. 1) was drawn and charge-sheet was submitted against Wahab Seikh, Ratan Choudhary, ashraful Seikh and Yusuf Seikh under Sections 395/412 IPC Yusuf Seikh, Wahab seikh (appellant) and Ratan Choudhary were charged under Section 395 IPC and Ashraful seikh (appellant) was charged under Section 412 IPC. 2a. The prosecution examined 10 witnesses in order to bring home the charges levelled against the accused persons. PW. 1 dipty Tudu and PW. 4 Chhutar Tudu have deposed that in their houses, dacoity was committed and appellant Yusuf Seikh was apprehended on chase by the villagers, whereas from the possession of appellant ashraful Seikh, stolen Kansa, wrist-watch silver Hasuli (Ext. 3/1) were recovered on raid by the I. O. and the articles were identified in the T. I. parade by the informant. PW. 2 Som Tudu has deposed that appellant wahab and Yusuf were caught by the villagers. PW. 5 Shiva Tudu and PW 6 Gora Tudu are tendered witnesses. PW. 7 Jalal Seikh is a hostile witness, PW. 8 Dina Nath Ram is the second I. O. who submitted charge-sheet, PW. 9 Jagdish Pd. Mishra is the Magistrate who conducted the T. I. Parade and submitted T. I. P. Chart (Ext. 4) in his pen and signature and deposed that the witnesses pw. 1 and PW. 4 identified Yusuf seikh. PW. 10 Raghunath Mandal is the witness of T. I. P. chart of the recovered articles (Exts. 5 and 5/1) which were recovered from the house of appellant Yusuf Seikh. The learned Additional Sessions Judge, pakur relied the evidence of PW. 1, PW. 2 and pw. 4 and held that appellant Wahab Seikh after commission of dacoity, was chased and caught and identified in the T. I. Parade, hence he convicted him under Section 395 ipc, whereas looted utensils, wrist-watch and silver hairpin were recovered on raid from the house and possession of appellant ashraful Seikh which were identified by PW. 1 and PW. 4 and held that appellant Wahab Seikh after commission of dacoity, was chased and caught and identified in the T. I. Parade, hence he convicted him under Section 395 ipc, whereas looted utensils, wrist-watch and silver hairpin were recovered on raid from the house and possession of appellant ashraful Seikh which were identified by PW. 1 and PW. 4, convicted under Section 412 IPC and sentenced each of them to undergo R. I. for 10 years. ( 3 ) ASSAILING the order of conviction and sentence passed against both the appellants, the learned counsel appearing on their behalf has submitted that there is major discrepancy in the evidence of PW. 1, PW. 2, and pw. 4 regarding factum of dacoity, identification of the dacoits and recovery of the articles. There is no evidence regarding participation of appellant Wahab Seikh in commission of the dacoity. PW. 4 informant has very specifically deposed in para 3 that nothing was recovered from the possession of appellant Wahab Seikh and another co-accused ratan Choudhary, who were caught by the villagers just after commission of dacoity on chase. He has further deposed that the seized articles, which were identified in the T. I. Parade, were not produced in course of evidence in the Court as material exhibits. PW. 8 Dina Nath Ram, I. O. has deposed that accused Yusuf Seikh, who is alleged to have been caught by the villagers including PW. 1, PW. 2, PW. 4, was in jail custody prior to the date of alleged occurrence who was remanded in this case which totally falsifies the evidence of the prosecution witnesses that they apprehended him along with Ratan Choudhary on chase after dacoity. There is not a single independent village witness to corroborate the evidence of PW. l, PW. 2 and PW. 4. The articles, alleged to have been looted, do not resemble with the articles recovered from the house of appellant Ashraful Seikh, which are alleged to have been identified in the T. I. Parade. Even then, the identified article in T. I. Parade were not produced in the Court in course of trial to mark as material exhibits. Considering these facts, the other co-accused ratan Choudhary and Yusuf Seikh have been acquitted on the similar set of evidence by the learned Court below. Even then, the identified article in T. I. Parade were not produced in the Court in course of trial to mark as material exhibits. Considering these facts, the other co-accused ratan Choudhary and Yusuf Seikh have been acquitted on the similar set of evidence by the learned Court below. On these grounds, these two appellants also deserve acquittal giving benefit of doubt to them, ( 4 ) THE learned A. P. P. refuting the argument advanced on behalf of the appellants, has submitted that there is no denial that dacoity was committed in the house of PW. 1 Dipty Tudu and PW. 4 informant Chhutar tudu. When the villagers assembled on alarm, they chased the dacoits and two of them were apprehended who confessed their guilt regarding commission of dacoity disclosing the names of all other dacoits. From their possession and also on raid from the house and possession of appellant ashraful Seikh, looted utensils. Dhoti, Pagri, torch silver hairpin were recovered which were identified in the T. 1. Parade to connect that the articles recovered were the offshoots of the dacoity. The learned Court below considered these evidence and convicted these appellants sentencing them to undergo R. I. for 10 years each. ( 5 ) PW. 1 Dipty Tudu is related as brother in the village with informant PW. 4 Chhutar tudu. Houses of both these witnesses are adjacent to each other. At about 2. 00 a. m. night on the same day, dacoity was first committed in the house of Dipty Tudu. In his house, 10 dacoits had entered who looted away utensils, silver hairpin, silver bangles and golden nose-pin there. After committing dacoity in his house, the dacoity was committed in the house of PW. 4 Chhutar Tudu. The villagers chased and caught Wahab seikh and Yusuf Seikh. This witness has deposed in para 4 that no article alleged to have been committed in dacoity were recovered from the possession of the dacoits. He identified two dacoits in the T. I. Parade. He also identified torch, bangles, silver hairpin thali and Bati in the T. I. Parade after one and half months of the alleged occurrence. He was knowing Yusuf Seikh who was apprehended by, the villagers prior to the commission of dacoity. In all the utensils and articles, names were engraved but all those articles were not produced in the court. PW. He was knowing Yusuf Seikh who was apprehended by, the villagers prior to the commission of dacoity. In all the utensils and articles, names were engraved but all those articles were not produced in the court. PW. 2 Som Tudu also claims that on chase Wahab Seikh and Yusuf Seikh were caught by the villagers. PW. 3 Madan Tudu of the same village Sundra Pahari has deposed that the villagers chased the dacoits but they could not apprehend the dacoits. The dacoits, who were put on T. I. Parade, were shown to the witnesses at the Police station itself. The dacoits, whom he Identified in the T, I. Parade, could not be identified in the dock in course of trial. PW. 4 informant chhutar Tudu has not supported the prosecution case as deposed by him in the fardbeyan. He also could not identify these appellants in the dock in course of his evidence in Court. He has also deposed that nothing was recovered from the possession of the dacoits. The 1. O. seized some articles but those articles were not put on t. I. Parade, rather the articles which were put on T. I. Parade and identified by him, were not produced in the Court. PW. 7 Jalal seikh is a hostile witness. PW. 5 Shiva Tudu and PW. 6 Gora Tudu, sons of the informant, are tendered witnesses. PW. 8,1. O. Dina nath Ram has deposed that Yusuf Seikh was in jail custody in connection with another case at the time of alleged occurrence. He was remanded later on in this case. Thus, the evidence of the village interested witnesses that Yusuf Seikh was caught on chase after commission of dacoity is belied by the evidence of the I. O. itself. PW. 9 is the Magistrate in whose presence, witnesses identified Yusuf Seikh as one of the dacoits, but as deposed by the PW. 1 that he was knowing Yusuf Seikh prior to the alleged occurrence shows identification in the T. I. Parade does not carry any meaning. PW. 10 raghunath Mandal has proved the T. I. P. chart of the articles Exts. 5 and 5/1 which were prepared by Circle Officer. Pakur K. B. Singh. ( 6 ) WHEN considered the evidence of the prosecution witnesses, I find that PW. 4 chhutar Tudu, his sons PW. 5 Shiva Tudu and PW. PW. 10 raghunath Mandal has proved the T. I. P. chart of the articles Exts. 5 and 5/1 which were prepared by Circle Officer. Pakur K. B. Singh. ( 6 ) WHEN considered the evidence of the prosecution witnesses, I find that PW. 4 chhutar Tudu, his sons PW. 5 Shiva Tudu and PW. 6 Gora Tudu have not supported the prosecution case. PW. 4 has deposed that no article was recovered from the possession of the dacoits. The articles which were put on T. I. Parade were not recovered from the dacoits rather the identified articles in the T. I. Parade were not produced in the court. PW. 3 Madan Tudu and PW. 7 Jalal seikh have deposed that on chase the dacoits could not be apprehended. PW. 1 dipty Tudu in whose house dacoity was committed, has also deposed that on chase two dacoits were apprehended from whose possession nothing was recovered. The T. I. P. was also conducted after one and half months of the alleged occurrence. Accused yusuf Sekih who was acquitted by the Court below, was falsely identified in T, I. Parade and also caught on chase by the villagers, was falsified by the evidence of the I. O. (PW. 8) that he was in custody prior to the alleged occurrence. Thus, I find, that the evidence of the prosecution witnesses is based only on suspicion and conjectures. The other co-accused Ratan Choudhary and yusuf Seikh have been acquitted by the learned Court below. The articles recovered from the house of appellant Ashraful Seikh are common articles found in each and every house. The articles as deposed by PW 1 Dipty tudu and PW. 4 Chhutar Tudu which were looted from their house, were not the articles put on T. I. Parade and recovered from the possession of appellant Ashraful Seikh. Rather from the house and possession of ashraful Seikh, Kansa Lota, wrist-watch and silver hairpin only were recovered which were seized and seizure-list (Ext. 3/1) was prepared by the I. O. The I. O. who investigated the case, S. I. Nawal Kishore Mishra has not been examined in this case. PW. 8 dina Nath Ram is the second I. O. who took over charge on 10-2-1988 from the first I. O. simply got the T. I. P. conducted in respect of Yusuf Seikh, who was identified by the witnesses PW. 1 and PW. 4. PW. 8 dina Nath Ram is the second I. O. who took over charge on 10-2-1988 from the first I. O. simply got the T. I. P. conducted in respect of Yusuf Seikh, who was identified by the witnesses PW. 1 and PW. 4. Thereafter, he simply submitted charge-sheet. Fardbeyan and seizure-list were in the pen and signature of Nawal Kishore Mishra. ( 7 ) NON-EXAMINATION of the first I. O. who recorded the fardbeyan of the informant and prepared seizure-list after recovery of articles, has not been examined which has caused prejudice to the appellants. One 3-cell jeep torch, one pair new Dhotis and 3 pagris were produced by PW. 4 informant chhutar Tudu which were seized and seizure-list (Ext. 3) was prepared. In that list, there is no signature of any of the appellants. Similarly from the house of appellant ashraful Seikh, one Kansa Lota, one wrist-watch (Citizen), and one silver hairpin were recovered and seizure-list (Ext. 3/1) was prepared. The seizure-list does not bear the signature of the appellant Ashraful Seikh. The seizure-list witnesses have also not deposed that in their presence these articles were recovered from the house of Ashraful seikh. Similarly, one big Bati of Kansa, one kansa Thali and one small Kansa Bati were recovered from the house of Kamu Seikh and seizure-list (Ext. 3/2) was prepared. The said kamu Seikh has neither faced trial nor is appellant in this case. ( 8 ) CONSIDERING all the pros and cons of the prosecution case, I find that even the informant PW. 4 and his two sons - PW. 5 shiva Tudu and PW. 6 Gora Tudu, have not supported the prosecution case. PW. 1 Dipty tudu in whose house dacoity was committed, has deposed that on chase, two dacoits were apprehended by the villagers, but from their possession, nothing was recovered. The villagers claimed to have identified one Yusuf seikh but that Yusuf Seikh was already in jail In connection with another case and later on, he was produced and remanded in this case as deposed by I. O. PW. 8 Dina Nath ram. From the house of PW, 4 informant chhutar Tudu the looted articles are Kansa thali-8, big Bati-3, Tape-1, Radio-1, Silver hairpin-1, and from the house of PW. 8 Dina Nath ram. From the house of PW, 4 informant chhutar Tudu the looted articles are Kansa thali-8, big Bati-3, Tape-1, Radio-1, Silver hairpin-1, and from the house of PW. 1 Dipty tudu, the looted articles are Kansa Thali-7, big Bati-4, small Bati-5, Lota-1, Radio-2, silver Hasuli of 3 bhar-1, silver bangles of 5 bhar. Dhoti 2, new Pagri-3 and two torches, one of 3-cell and another of 2-cell, but from the house of appellant Ashraful Seikh, one only Kansa Lota, only one wrist-watch and one silver pin were recovered and seizure-list (Ext. 3/1) was prepared. These articles are alleged to have been Identified by PW. 1 and PW. 4 in the T. I. Parade conducted by circle Office, Pakur. Circle Officer, Pakur has not been examined and the chart was proved by a formal witness. PW. l and PW. 4 have deposed that the articles belonging to them, the names were engraved, but as per their deposition in the Court, those engraved articles were not produced in the Court. Seizure-list (Ext. 3/1) does not bear the signature of the appellant Ashraful Seikh and the seizure-list witnesses, PW. 7 Jalal Seikh and another witness who has signed in ttie seizure-list namely Mustaque Hussain, has not been examined in this case. PW. 7 Jalal seikh has deposed that nothing was recovered in his presence. But his signature was obtained in a seizure-list creates doubt regarding recovery of these articles from the house of appellant Ashraful Seikh as mentioned by the seizure-list (Ext. 3/1 ). Thus, I find that the prosecution case is full of doubt regarding participation of these appellants in commission of dacoity and retaining the articles which were alleged to have been looted in course of commission of dacoity. Thus, the prosecution could establish only the factum of dacoity that dacoity was committed in the house of PW. 1 Dipty Tudu and PW. 4 Chhutar Tudu in thenight of 1-11-1987 in between 2. 00 a. m. to 3. 00 a. m. The learned Court below has not considered these aspects meticulously and was led to an erroneous finding convicting appellant ashraful Seikh under Section 412 IPC and appellant Wahab Seikh under Section 395 ipc which cannot be sustained. ( 9 ) IN the result, I find merit in this criminal appeal which succeeds and is allowed. 00 a. m. The learned Court below has not considered these aspects meticulously and was led to an erroneous finding convicting appellant ashraful Seikh under Section 412 IPC and appellant Wahab Seikh under Section 395 ipc which cannot be sustained. ( 9 ) IN the result, I find merit in this criminal appeal which succeeds and is allowed. The order of conviction and sentence passed by learned Additional Sessions Judge, Pakur in Sessions case No. 212 of 1988/ 123 of 1989 is set aside. As both the appellants are on bail, they are discharged from the liability of their bail bonds furnished in this case. Appeal allowed. --- *** --- .