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2004 DIGILAW 1145 (PAT)

Dileshwar Pd. Singh @ Hitter v. State Of Bihar

2004-11-16

CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. The appeal is against the judgment dated 5.10.1989 of the 4th Additional Sessions Judge, Muzaffarpur, passed in Session Trial No. 161 of 1987 whereby the appellant has been convicted u/s. 395 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years. 2. The fardbeyan of the case was recorded by S.I. Rajeshwar Singh (PW 8) on 16.3.1986 at 9 p.m. at the house of the informant situated within the grid sub-station colony at Bhikhanpura. The informant stated that he was working as section officer in the Bihar State Electricity Board, Muzaffarpur and his residential quarter was situated within Grid Sub-station at Bhikhanpura. About the occurrence he stated that day (16.3.1986) at about 7.30 p.m., he was sitting in his house and was reading a book. The door was closed from inside. At that time some body knocked the door from outside. Thinking that his son-in- law (PW 7) who had gone out for some work had come back, he got up and opened the door. As soon as he opened the door one criminal who was there at the door pointed out pistol on him and asked him to sit quietly inside the house. Thereafter, 4-5 other criminals also entered into the house. Three of the criminals had pistol and some had iron rods in their hands. The criminals had captured Shaligram Singh, driver and brought him in the house and got him seated in the room with the informant and abused both of them and brandishing pistol they asked them to sit quietly. 4-5 criminals entered into the adjacent room and starting breaking boxes and almirah in the room and looting the articles. That adjacent room was the room in which informants wife (PW 4) was living. The criminals snatched ornaments from ear and nose of his wife and took out and scattered the articles of the box and almirah. In a bid to search ornaments and cash in the house the criminals remained in the house for half an hour and committed dacoity. 6/7 criminals who had entered into the house, the informant claimed that he, his wife and some neighbours had identified one of the criminals i.e. Dileshwar Pd. Singh @ Hittar. The informant further stated that the identified criminal Dileshwar Pd. 6/7 criminals who had entered into the house, the informant claimed that he, his wife and some neighbours had identified one of the criminals i.e. Dileshwar Pd. Singh @ Hittar. The informant further stated that the identified criminal Dileshwar Pd. Singh (appellant) was the SALA of Braj Kishore Singh, a chaukidar who was living in the same colony. The informant claimed that he had seen the criminals in the light of the electric bulb lighting in the house. The informant also stated in his fardbeyan that the neighbour Rana Sanjay Kumar Sinha (PW 5), Arvind Kumar and his son in law, Dashrath Giri (PW (7) who were out side the house had stated that the criminals had confined them outside the house and had snatched their wrist watch and cycles and that the driver Shaligram Singh had stated that while he was going on road the criminals had captured him and they had brought him inside the informants house and kept him confined there. The informant mentioned the datails of the ornaments, cash, bycycle and other articles looted away by the criminals. On the basis of the fardbeyan (Ext. 1) the first information report (Ext. 3) was instituted at the town police station Muzaffarpur and investigation commenced and on completion of investigation charge-sheet was submitted against the appellant who was put on trial and has been convicted and sentenced as above. 3. As many as eight witnesses were examined by the prosecution. PW 1,-Shaligram Singh and PW 2 Sandeep Kumar were examined on the point of occurrence but these two witnesses were declared by the prosecution hostile. PW 3 Baleshwar Puri is the informant and PW 4 Damayanti Devi is his wife. PW 5 Rana Sanjay Kumar Sinha is also a witness on the point of occurrence but he too has turned hostile. The PW 6 Sanjay Sharma is a formal witness who had proved the writings on the first information report marked Ext. 3. PW 7 Dashrath Giri the son-in-law of the informant deposed about the occurrence. PW 8 Rajeshwar Singh is the investigating officer of the case. 4. Firstly I took up the evidence of the informant Baleshwar Puri (PW 3). He deposed that on 16.3.1986 he was in a his residential quarter situated within the Grid Sub-station Colony at Bhikhanpura. 3. PW 7 Dashrath Giri the son-in-law of the informant deposed about the occurrence. PW 8 Rajeshwar Singh is the investigating officer of the case. 4. Firstly I took up the evidence of the informant Baleshwar Puri (PW 3). He deposed that on 16.3.1986 he was in a his residential quarter situated within the Grid Sub-station Colony at Bhikhanpura. That day at about 7.15 - 7.30 p.m. while his family members were engaged in watching film on television he was reading a book in his room. The door of the house was closed from inside. At that time somebody knocked the door from outside. He (informant) thought that his son-in-law Dashrath Giri, (PW 7) who had to Bazar had come back opened the door. As soon as he opened the door one criminal who was at the door put pistol on him and asked him to go inside the house. Then 4/5 other criminals also entered into his room. The criminals had revolvers and iron rod in their hands. He further deposed that the criminals had captured Shaligram Singh, driver working in his department and they also brought him inside the room and got him seated there and they abused them and asked them to sit quietly. He further deposed that 4/5 criminals entered into room inside the house and they started breaking boxes and almirah and he heard the sound of breaking. He contained to depose that his wife lived in that room and she disclosed to him that the criminals had snatched her gold ornaments from her ears and nose. He also deposed that the criminals had committed dacoity for about half an hour and they had taken away ornaments and cash of Rs. 1500A. He further deposed that out of the 4/5 criminals who had entered in the room he had identified Dileshwar Pd. Singh @ Hittar (appellant). He contained to depose that Dileshwar Pd. Singh (appellant) was the SALA of Braj Kishore Prasad Singh who was a shift chowkidar who had his residential quarter in the same colony. He also deposed that at the time of occurrence electric bulb was lighting in the room of his house but there was no road light on the road outside the house. Singh (appellant) was the SALA of Braj Kishore Prasad Singh who was a shift chowkidar who had his residential quarter in the same colony. He also deposed that at the time of occurrence electric bulb was lighting in the room of his house but there was no road light on the road outside the house. He also deposed that after fleeing away of the criminals Rana Sanjay Kumar Sinha (PW 5), Arvind Kumar and Dashrath Giri had come to him and they had also identified Hittar (appellant) amongst the criminals and that his son-in-law (PW 7) had also disclosed before him that the criminals had snatched his bicycle and wrist watch and they had kept him seated and confined outside the house. He further deposed that the police had come to his house and had recorded his fardbeyan on the next day on which he put his signature. The fardbeyan is Ext. 1. During trial he had identified the appellant in dock. In para 13 of his evidence he has given the details of the ornaments, bycycle, torch light, watches and cash of Rs. 1500.00 looted away by the dacoits. He further deposed in para 14 that the police had seized one black plastic shoe, one pair of Hawai chappal and one stainless steel thali from the house and a seizure list was also prepared. The seizure list is Ext. 2. He also deposed that the passage for going to the room of his wife passes through his (informants) room. At para 17 of his cross-examination, he deposed that during occurrence the face of the appellant was uncovered and that the appellant had not tried to conceal his face. He further says that the appellant was wearing a cap during the occurrence. At para 18 of his evidence he deposed that he used to see the appellant in the house of Braj Kishore Singh since* one year from before the occurrence. He also deposed that the quarter of Braj Kishore Singh, shift chowkidar situated at a distance of about 200 yards from his (informants) quarter. Thus the informant had opportunity and occasion to know the appellant from before the occurrence and hence, he identified him during the occurrence. He further deposed that soon after entering into his house one of the criminals who had put pistol on him had snatched his wrist watch. Thus the informant had opportunity and occasion to know the appellant from before the occurrence and hence, he identified him during the occurrence. He further deposed that soon after entering into his house one of the criminals who had put pistol on him had snatched his wrist watch. He deposed at para 21 of his evidence that after fleeing of the criminals his neighbour had come to him. He disclosed the name of the appellant before them saying that he had identified him (appellant) during the occurrence. At para 22 of his evidence the informant had been suggested on behalf of the accused that prior to the occurrence the cow of the said Braj Kishore Singh had grazed some flower plants inside his (informants) quarters premises and that for that a quarrel had taken place and that Dileshwar Singh (appellant) had taken the side of Braj Kishore Singh in that quarrel, hence due to that grudge the informant implicated the appellant falsely in this case. The informant had denied the suggestion. The defence have not brought any evidence to substantiate the suggestion given to the informant. Thus the evidence of the informant in spires confidence. The informant had occasion and opportunity to know the appellant from before the occurrence. Hence he had identified him during the occurrence in the light of the electric bulb lighting inside the house. There is nothing in the evidence of the informant to discredit his testimony on any point of the occurrence. His evidence is cogent reliable and trust worthy. 5. Damyanti Devi (PW 4) is the wife of informant. She has fully corroborated the informant on ail the material points regarding the occurrence. She deposed that in that night at about 7.30 a.m. dacoity had taken place in her residential quarter situated within the electricity Board Colony Bhikhanpura, Muzaffarpur. .She further deposed that while she was preparing her bed five criminals entered into her room. Two of the criminals had pistol. Two had dagger and one had iron rod. One of the dacoits put pistol on her and asked her to keep quiet and when the dacoit demanded key from her she gave key to them. She also deposed that the dacoits had snatched her gold ornaments from her ears and nose. Two of the criminals had pistol. Two had dagger and one had iron rod. One of the dacoits put pistol on her and asked her to keep quiet and when the dacoit demanded key from her she gave key to them. She also deposed that the dacoits had snatched her gold ornaments from her ears and nose. The criminals also opened almirah and box and they scattered the articles kept there in and looted three pairs of earring, one pair of tops, one neck chain, one nose pin, one Tika, and one Nathia all made of gold and they also took one pair of silver payal, two pairs of Chandrama and one pair of shoes, one pair of chappal and cash of Rs. 1500.00 . At para three of her evidence she deposed that during the occurrence one of the dacoits was snatching her Mangalsutra from her neck but at that time one another dacoit asked that dacoit not to snatch the Mangalsutra hence the Mangalsutra was not snatched by the dacoit. She continued to deposed that the dacoit who had asked another dacoity for not snatching the Magalsutra was Dileshwar Singh @ Hittar (i.e., appellant). She identified the appellant who was present in Court during the trial. At para 4 of her evidence she deposed that Braj Kishore Singh Chowkidar who was the bahnoi of the appellant was living in her colony and the appellant was also living in the same colony. She also deposed that the mother of the appellant occasionally used to come to her house. Thus the PW 4 had opportunity to see and know the appellant from before the occurrence. She also deposed that during the occurrence the appellant was wearing a cap. Her son-in-law had disclosed to her that the dacoits had snatched his wrist watch and bicycle. At para 5 of her evidence she continued to depose that at the time of occurrence her children were not in the house and that they had gone in the quarter on the upper storey for watching television programme. She also deposed at para 6 that at the time of occurrence electric bulb was lighting in the house and in that light she had seen the face of the appellant and had also heard his voice and identified him. She also deposed at para 6 that at the time of occurrence electric bulb was lighting in the house and in that light she had seen the face of the appellant and had also heard his voice and identified him. In cross-examination at para 8 she deposed that during the occurrence the face of the appellant was uncovered and that the cap worn by him had not covered his face. At para 9 she deposed that the appellant had not snatched anything from her but he was engaged in opening box and looting the articles from the box and cash money had been taken away by the appellant himself. At para 10 she deposed that after fleeing away of the criminals some neighbours had come to her and that first of all Rana Sanjay Kumar (PW 5) and her son in law (PW 7) had come. She also deposed that she had disclosed to them the name of the appellant saying that she had identified him during the occurrence. At para 11 of the evidence this witness was also given the same suggestion by the defence that prior to the occurrence the cow of Braj Kishore Singh had grazed. flower plants in her quarter and that due to that a quarrel had taken place and that in that quarrel the appellant had taken the side of his Bahnoi Braj Kishore Singh hence due to that grudge she implicated the appellant falsely in this case. This witness denied the suggestion. As also stated earlier the defence did not bring any evidence to substantiate the suggestion which was denied by the witnesses. Thus considering the evidence of this witness it is found that this witness had occasion to know the appellant from before the occurrence as the appellant was living in the same colony with his bahnoi who was a watch man living in the same colony. It is also clear that this witness had opportunity to see and identify the appellants in the light of electric bulb lighting at that time. Her evidence is reliable and trust-worthy. 6. PW 7 Dashrath Giri deposed that he was the son-in-law of the informant Baleshwar Puri. He further deposed that on 16.3.1986 at about 7.30 p.m. a dacoity had taken place in the quarter of his father-in-law situated in Electricity Board colony at Bhikhanpura, Muzaffarpur. Her evidence is reliable and trust-worthy. 6. PW 7 Dashrath Giri deposed that he was the son-in-law of the informant Baleshwar Puri. He further deposed that on 16.3.1986 at about 7.30 p.m. a dacoity had taken place in the quarter of his father-in-law situated in Electricity Board colony at Bhikhanpura, Muzaffarpur. He continued to depose that at that time he was returning from market and when he reached near the gate of the quarter of his father-in-law 2/3 persons who were standing there captured him and snatched his wrist watch and bicycle. A jeep was parked near the place and the criminals took him and got him seated in that jeep. He further deposed that a boy named Sanjay (PW 5) whose quarter was near the place was also brought by the criminals and seated in the jeep and the criminals threatened them not to raise hulla otherwise they would kill them. After some time the criminals fled away on that jeep and the (PW 7) got down from the jeep and, thereafter, he went into the house of his father-in-law and saw that the articles of the house were scattered hither and thither. His father-in-law (informant) and mother-in-law stated to him that a dacoity had taken place in the house, he also deposed that he found boxes thrown in the house. At para 3 of his evidence he deposed that he had not identified any of the criminals saying that he occasionally used to come once or twice in a year to the house of his father-in-law. He deposed at para 4 that his father-in-law and mother-in-law had disclosed in his presence that they had identified Dileshwar Singh (appellant) during the occurrence. At para 5 of the cross-examination he deposed that at the time of occurrence there was darkness outside the house. The presence of this witness near the place of occurrence cannot be denied as because while he was out side the house the criminals had captured him and snatched his wrist watch and bicycle and they had got him seated and confined in a jeep standing out side the house. This witness does not say to have identified any of the criminals but there are reason for not identifying the criminals. This witness does not say to have identified any of the criminals but there are reason for not identifying the criminals. This witness has deposed that there was darkness out side the house and that the criminals had got him seated in a jeep and got him confined there. The occurrence of dacoity took place in the house where electric bulb was lighting and there was darkness out side the house hence it was not possible for this witness to see the occurrence of dacoity taking place inside the house. As the dacoits fled away in darkness out side the house this witness could not have seen and identified the criminals. Any way this witness proved the occurrence and he also deposed that after the fleeing away of the dacoits his father-in-law (PW 3) and mother- in-law had disclosed the name of the appellant saying that they had identified him during the occurrence. 7. Before discussing the evidence of some other witnesses who turned hostile to the prosecution I feel it expedient to discuss the evidence of the investigating officer (PW 8). He deposed that on 16.3.1986 he was posted at town PS Muzaffarpur and on receiving the information he reached at Electricity Board grid station, Bhikhanpura and he went to the Government residential quarter of the informant Baleshwarpuri and he recorded his statement there which was read over and explained to him and thereafter he put his signature on the same. The statement i.e. the fardbeyan is Ext. 1. He further deposed that on the basis of the fardbeyan he recorded first information report at the police station and commenced investigation. He recorded the further statement of the informant and the statement of other witnesses. He also inspected the place of occurrence which was informants Government residential quarter. He further deposed that the almirah fixed in wall, box and attach! etc. were found open and the articles in it were found scattered in the room. He further deposed that he had found one black colour plastic half shoe, one pair of hawai chappal, and one stainless steel CHEEPA containing some finger marks and he seized those articles and he also prepared a seizure list in presence of witness. The seizure list is ext. 2. He further deposed that he had found one black colour plastic half shoe, one pair of hawai chappal, and one stainless steel CHEEPA containing some finger marks and he seized those articles and he also prepared a seizure list in presence of witness. The seizure list is ext. 2. At para 7 of his evidence he deposed that during investigation he had recorded the statement of witness Shaligram Singh (PW 1) who had stated before him that the informant had disclosed before him that Dileshwar (appellant) was inside the house. He further deposed at para 8 that he had also recorded the statement of witness Sanjay Kumar Sinha (PW 5) who had stated before him that when the dacoits had came out of the house of the informant he (PW 5) had identified Dileshwar Singh (appellant). At para 10 of his evidence he deposed that about the occurrence he had received telephonic information in the night at about 8 p.m. At para 14 of his evidence he further deposed that he had gone to the quarter of the said Brajkishore Singh but he was not available there hence he could not be able to record his statement. He also deposed that when he had gone to the quarter Brajkishor Singh had already been transferred to some other place and he had left the quarter. He had called the police sniffer dog and tried to get the clue to the criminals but he could not succeed in getting any clue. 8. PW 1 Shaligram Singh who was driver in the Electricity Board deposed that in the night of occurrence at about 7.30 p.m. while he was returning from bazar and was proceeding towards his quarter in the colony he saw 5-10 persons near. the inspection bunglow and that two of the persons came to him and caught hold of his collar and put pistol on him. The criminals captured him and took him to the house of the informant Baleshwarpuri and locked the door from outside and when he (informant) had opened the door the criminals had put pistol on him (informant) also. He further deposed that the criminals snatched the spectacles of the informant and threw it away. He also deposed that the criminals had also snatched Rs. 200.00 from his pocket. He further deposed that the criminals snatched the spectacles of the informant and threw it away. He also deposed that the criminals had also snatched Rs. 200.00 from his pocket. He further deposed that the criminals took him inside the house of the informant and got him seated there beside the informant and kept him threatened on the point of pistol. Dacoity took place for about half an hour. He further stated that he had not identified any of the dacoits and that he had not seen the appellant there. Hence, due to this portion of the evidence the prosecution declared this witness hostile. At para 7 of his evidence the learned APP drew the attention of this witness towards his previous statement as made before the police that the informant had stated before him that Dileshwar (appellant) was inside the house. This witness denied to have made such statement before the police. But the I.O. (PW 8) para 7 has proved the statement of this witness as made before him during the investigation that the informant had disclosed before him that Dileshwar (appellant) was inside the house. Under the circumstances of the case the presence of this witness cannot be denied at the place of occurrence and he has fully supported the informant in so far as the commission of the offence of dacoity is concerned. 9. The PW 2 Sandeep Kumar deposed that in the night of occurrence at about 6-7 p.m. while he was in his house which situates near the house of the informant and intervened by two other quarters, he heard the hulla of dacoity. Hearing hulla he came out of his house and he saw 4/5 persons standing near the gate. He further deposed that the dacoits took away two bicycles kept at the varandah of the house. He also deposed that as soon as he came out of his house one criminal abused him and asked him to go inside his house. Hence he immediately returned into his house and closed the door. He further deposed that after some time he heard hulla again and then he went to the house of Baleshwarpuri (informant) and learnt that a dacoity was committed. At para 3 of his evidence he denied to have made any statement before the police that the informant and his wife had disclosed about having identified the appellant during the occurrence. He further deposed that after some time he heard hulla again and then he went to the house of Baleshwarpuri (informant) and learnt that a dacoity was committed. At para 3 of his evidence he denied to have made any statement before the police that the informant and his wife had disclosed about having identified the appellant during the occurrence. Due to this portion of his evidence prosecution declared this witness hostile. At para 4 of his evidence the learned APP, drew attention of this witness towards his previous police statement that he had learnt from the informant that Dileshwar (appellant) was amongst the criminals and the I.O. (PW 8) para 6 has proved the statement of this witness made during investigation that he had Learned from the informant that Dileshwar Singh (appellant) was amongst the criminals. 10. PW 5 Rana Sanjay Kumar Sinha deposed that at the relevant time he was living in his quarter situated in that colony. He further deposed that on 16.3.1986 at about 7.30 p.m. while he was going to the quarter of Kedarnath Singh for watching T.V. programme and when he was on road 2/3 criminals pointed pistol to him, snatched his wrist watch and got him seated in a jeep standing there. He further deposed that son-in-law of Baleshwar Puri who was also passing through there at that time was also caught hold of by the criminals and got seated in that jeep. He further deposed that the dacoits had came out from the house of Baleshwarpuri and that at that time electric light was lighting inside the house but there was no light outside the house hence the faces of the criminals were not visible out side the house. At para 5 of his evidence he stated that the appellant was living in that colony but he had not seen the appellant during the occurrence. In the circumstance appearing in the evidence of this witness it appears that while this witness (PW 5) was going on road the criminals had apprehended him and got him seated in the jeep parked on the road and that at that time there was no light on the road and that this witness was kept confined in that jeep, hence there was no occasion for this witness to have seen the faces of criminals. Hence this statement of this witness that he had not seen the appellant during the occurrence cannot be considered as the material to discredit the evidence of the informant and his wife who identified the appellant during the occurrence. 11. During hearing the learned counsel for the appellant submitted that PW 3 (para 17) and PW 4 (para 17) have stated that during the occurrence the appellant had not covered his face hence they identified him. Hence it was argued that nobody will be such dare devil that he will not cover his face and take a risk of identification during such occurrence of dacoity. The learned APP replied that the appellant was the sala of the said B.K. Singh living in the same colony and that the appellant was living with Brajkishore Singh sine last one year in that quarter but he was not permanent resident hence he (appellant) might have run under the impression that since he was not permanent resident of that locality he would not be identified by any one hence he did not take care to cover his face. Nothing can be said as to what idea was running in the mind of the appellant due to which he did not cover his face during the occurrence. But on considering the evidence of PW 3 and 4 that they identified the appellant during the occurrence and also considering the evidence of PW 7 (para 4) that the PW 3 and 4 disclosed before him that they had identified the appellant during the occurrence, I find that there is reliable and trust worthy evidence to prove that the appellant was amongst the dacoits who committed the occurrence of dacoity and that he (appellant) was identified during the occurrence. The learned counsel for the appellant argued that the informant had stated in his evidence that at that the time of occurrence, his family members were engaged in watching TV programme. But in the evidence of the informant and his wife there is nothing to show that any TV was playing in his house at the time of occurrence. The learned counsel further argued that in this case the informant and his wife have been examined on the point of occurrence but any other family member has not come to say about the occurrence. But there is a reasonable explanation to this quarry of the appellants counsel. The learned counsel further argued that in this case the informant and his wife have been examined on the point of occurrence but any other family member has not come to say about the occurrence. But there is a reasonable explanation to this quarry of the appellants counsel. The informants wife (PW 4) para 4 has stated that at the time of occurrence children were not in the house and that they had gone in the quarter situated in upper storey for watching the TV programme there. Thus at the time of occurrence the other family members of the informant i.e. children were not present in the house and that they had gone to another quarter for watching TV, programme there. Therefore, truly the informant stated in his evidence that his family members were engaged in TV programme and that no adverse inference can be drawn due to this fact that any TV, was not playing in the informants house at that time. Thus under these circumstances there is nothing to discredit the prosecution witnesses. No other point was raised by the appellants counsel. 12. Thus considering the facts and circumstances of the case and the evidence on record, I find that prosecution has been able to prove the charge beyond the shadow of reasonable doubt. Therefore, the appellant is found guilty of the commission of the offence of dacoity hence he deserves to be convicted under Sec. 395 of the Indian Penal Code, 1860 . So far the quantum of sentence is concerned, I find that a sentence of RI, for seven years in the circumstances of the case is justified. Thus I find no reason to interfere with the order of conviction and sentence as passed by the learned trial Court hence the same is hereby sustained. 13. In the result the appeal is dismissed. The bail bond of the sole appellant is cancelled and he should surrender before the Court below to serve out the sentences.