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2004 DIGILAW 45 (JHR)

Sultan Ansari v. State Of Bihar (Now Jharkhand)

2004-01-09

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellant has been directed against the impugned judgment and order dated 24.7.1998 and 27.7.1998 respectively passed in Sessions Trial No. 50 of 1994/Trial No. 139 of 1994 by Sri Dhananjay Prasad Singh, 1st Additional Judicial Commissioner, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable under Section 395 of the Indian Penal Code, and he was convicted and sentenced to undergo R.I. for 10 years. However, co-accused Safdar Ansari was not found guilty under Section 395 of the Indian Penal Code, and he was accordingly acquitted. 2. The prosecution case has arisen on the basis of the fardbeyan of PW 1 Ram Lochan Prasad Gupta recorded by S.I. J.N. Singh of Ratu P.S. on 24.9.1992 at 4.30 hours at his house at village Banapiri regarding the occurrence which is said to have taken place on 23.9.1992 at 19.30 hours in his house in the said village in which several ornaments worth Rs. 6,000/- from the box have been taken away by the dacoits and a case under Section 395 of the Indian Penal Code, against the appellant, and the acquitted co-accused Safdar Ansari and four unknown dacoits was instituted on 24.9.1992 at 8.15 hours by drawing of a formal FIR (Ext. 2). The formal FIR and the fardbeyan have been received on 24.9.1992 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that PW 1, the informant, alongwith his family members was taking his meal inside his house at 19.30 hours on 23.9.1992 when he heard the rattling sound at his door and on query it was told that it is Manoj who is knocking at the door and thinking the said Manoj as the son of his brother-in-law the informant opened the door and six dacoits entered into his house and two of them were armed with pistol and one dacoit was armed with a dagger and they enquired from him as to where he has kept the cash failing which he shall be done to death and on his refusal to disclose in respect thereof they broke the box and started searching for money. It is further alleged that his daughter PW 4 Sushila Kumari and his son PW 2 Surendra Prasad Gupta confined themselves in room and started raising alarms as a result of which the villagers started collecting at his house and one of the dacoits told his companions to flee away from there as the villagers are assembling at the house of the informant and, thereafter, the dacoits confined the informant and the other inmates of his family in a room and in course of that he has identified co- accused Sambal Ansari, resident of his village in the flash of torch. The prosecution case further is that one of the dacoits was in the same room breaking boxes in which the informant and others were confined by the dacoits and the other dacoits were not aware of the fact regarding the presence of the said dacoit in the said room which was bolted by them from outside. It is alleged that the said dacoits seeing the informant and others in the said room started running hither and thither with a view to flee away but he could not escape in view of the fact that door of the said room was bolted from outside and he started assaulting the informant by a dagger causing injury on the chest of the informant and when the villagers opened the door of the said room to take out the informant and others the said dacoit had concealed himself climbing over the patni and he was caught by the villagers and he disclosed his name on query as Sultan Ansari, son of Sahamat Ansari resident of village Basila O.P. Nagari P.S. Ratu. It is also alleged that persons collected at the place of occurrence has also assaulted the said dacoit. The prosecution case further is that several ornaments worth Rs. 6,000/- belonging to PW 6 Manorma, the daughter-in-law of the informant were taken away by the dacoits. It is also alleged that he has seen all the dacoits in the light of lantern and he claims to identify them. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case. It is also alleged that he has seen all the dacoits in the light of lantern and he claims to identify them. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case. It has been contended that the appellant has come to village Banapiri to the house of his relative and on alarm he had gone to the house of the informant where he was apprehended by the co- villagers under suspicion. However, in the written argument it has been stated that there had been an altercation between this appellant and the son of the informant and the appellant has beaten the son of the informant and thereafter the family members of the informant caught the appellant and brutally assaulted him and locked him in a room of his house and when the relatives of the appellant came with the police force for the rescue of the appellant, a false case of dacoity has been set up implicating the appellant therein. 5. The prosecution has in all examined 10 witnesses to substantiate its case. PW 1 Ram Lochan Gupta is the informant of this case and PW 2 Surendra Prasad Gupta and PW 8 Raj Kumar Prasad are his sons and they claim themselves to be the ocular witnesses of the occurrence. PW 7 Rameshwar Uraon besides PW 8 Raj Kumar Prasad is the witness of the seizure of the dagger from the possession of the appellant and Exts. 2 and 2/1 are the signatures of the aforesaid two witnesses on the seizure list. PW 4 Sushila Kumari, PW 3 Kunti Devi, PW 6 Manorma Devi and PW 5 Mahendra Prasad Gupta are the daughter, wife, daughter-in-law and son respectively of the informant and they have been tendered in this case. PW 9 Harihar Sahu has turned hostile and he does not support the prosecution case though he has stated regarding the dacoity having been committed in the house of the informant. PW 10 is a formal witness who has proved the formal FIR (Ext. 3). Ext. 1 is the signature of the informant on his fardbeyan. The I.O. and the Doctor have not taken oath in this case for the prosecution. PW 10 is a formal witness who has proved the formal FIR (Ext. 3). Ext. 1 is the signature of the informant on his fardbeyan. The I.O. and the Doctor have not taken oath in this case for the prosecution. No oral and documentary evidence has been adduced on behalf of the defence. 6. Relying upon the testimony of PW 1 read with PWs. 2 and 8 coupled with the fact that the appellant was caught at the place of occurrence, the learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not consider the facts, circumstances and the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant. It has been contended that there has been inordinate delay is instituting the case by the informant and no explanation of the said inordinate delay is forthcoming on the record when the police station is situated only 14 Kms. from the place of occurrence and no information was sent to the police station in respect thereof and when the police came at the instance of the relatives of the appellant, a false case of dacoity has been set up. In support of his contention reliance has been placed upon the ratio of the case of Ganauri Muni and Ors. v. State of Bihar, 1998 (1) PLJR 813. It has further been contended that the appellant stands seriously prejudiced in this case due to the non examination of the I.O. and the medical witness as the objective finding of the I.O. regarding the commission of the dacoity in the house of the informant has not been brought on record by the prosecution and further according to the prosecution case the informant is said to have sustained injury caused by dagger on his chest but the medical witness on examination of the informant has found the said injury simple in nature caused by hard and blunt substance and this appellant stands debarred of eliciting the facts in their cross examination showing their innocence. It has also been contended that no independent witness of the vicinity of the place of occurrence has come to support the prosecution case regarding the apprehension of the appellant in the manner as alleged which casts a cloud of suspicion to the very credibility of the prosecution case and furthermore, the testimony of PWs. 1, 2 and 8 is contradictory and inconsistent in material particulars in view of the fact that PW 8 could not identify the appellant as a participant in the dacoity and PW 2 has deposed that the appellant was caught at 19.00 hours i.e. much prior to the occurrence and it appears surprising enough as to how the dagger has not been taken away from the appellant by the persons apprehending him when he was confined in the room of the house of the informant as alleged. In view of the facts aforesaid, the prosecution case appears to be highly improbable and thus the impugned judgment in unsustainable. 8. The learned A.P.P. has submitted that a dacoity has been committed in the house of the informant in which ornaments worth Rs. 6,000/- were taken away by the dacoits and when the villagers had collected at the place of the occurrence the dacoits fled away confining the informant and others in the room of the house of the informant in which the appellant was from before breaking open the box and the said room was bolted from the outside and the villagers opened the said room in which the appellant was apprehended armed with a dagger and he has also caused injury to the informant on his chest and PWs 4, 2 and 8 in their evidence on oath have materially corroborated the prosecution case in their evidence as well as the apprehension of the appellant and the recovery of the dagger from his possession. It has also been submitted that the defence version is highly improbable and equally unacceptable as there is no apparent reason for the appellant to be present in the village of the informant and the learned Court below has rightly not accepted the defence version as probable and viewed thus there is no infirmity in the impugned judgment. 9. It has also been submitted that the defence version is highly improbable and equally unacceptable as there is no apparent reason for the appellant to be present in the village of the informant and the learned Court below has rightly not accepted the defence version as probable and viewed thus there is no infirmity in the impugned judgment. 9. It is essential to mention here at the very outset that this appellant is a resident of village Basila P.S. Ratu District Ranchi, a distant village from the place of occurrence and there in no material on the record to give an inkling of the fact that this appellant has any connection whatsoever with the village of the informant and there is no evidence on the record to show that any of his relatives resides in the village of the informant. The factum of the dacoity has been disputed in this case by the appellant. PW 1 Ram Lochan Prasad Gupta, the informant has deposed that at 7.00 or 7.15 p.m. on 23.9.1992 he had taken his meal and his other family members were taking meal and there was a knock at his door and it was told that he is Manoj and he was asked to open the door and thinking the said Manoj, as the brother-in-law of his son, the informant opened the door and 7 or 8 persons entered into his house and one of them put a revolver at his temple and 2 to 3 dacoits were also armed with revolver and they caught him and asked from him to produce his licensed gun and cash. He has further deposed that he told that his gun has been deposited at the police station and he has no cash with him. His evidence is further to the effect that thereafter he was brought before his family members who were taking their meal and they spoiled their meal and they also caught his two sons and thereafter they started breaking open the boxes of his house making search for cash. He has further deposed that all the dacoits confined him and his family members in a room and his younger daughter who was sleeping outside the room started raising alarms and at this the villagers assembled there. He has further deposed that thereafter the dacoits closed the room bolting it from outside and they fled away. He has further deposed that all the dacoits confined him and his family members in a room and his younger daughter who was sleeping outside the room started raising alarms and at this the villagers assembled there. He has further deposed that thereafter the dacoits closed the room bolting it from outside and they fled away. He has further deposed that one of the dacoits was in the said room which was bolted from the outside by the dacoits and the said dacoit attempted to flee away from the said room by climbing over the patni but in the meantime, villagers came there and they opened the room and the said dacoit was apprehended. He has also deposed that the said dacoit had inflicted an injury on his chest by dagger and on query the said dacoit disclosed his identity as appellant Sultan Ansari of village Basila and he was also assaulted by the villagers. He has further deposed that the villagers confined the said appellant in an outer room of his house and when notice patroling party came there the said appellant was handed over to the police. PW 1 has further deposed that there was light of dhibri and lantern in the said house where members of his family were taking meal. In paragraph 8 of his cross-examination he has deposed that the night of occurrence was a dark night and the dacoits had ransacked the house for 15 to 20 minutes. He has also deposed that the appellant is not the resident of his village. PW 2 and PW 8 the sons of the informant in their evidence on oath have deposed regarding the commission of the dacoity in his house at 7.30 p.m. on 23.9.1992. They have also deposed that the dacoits have confined the informant and his family members including them in the room of the house and bolted the said room from outside when the villagers on alarms started assembling at the place of occurrence and one of the dacoits was in the said room from before breaking the boxes in search of cash. He has further deposed that villagers opened the room and the said dacoit was apprehended who disclosed his name as Sultan Ansari and he was armed with a dagger. They have further deposed that the said dacoit has assaulted his father causing injury on his right chest. He has further deposed that villagers opened the room and the said dacoit was apprehended who disclosed his name as Sultan Ansari and he was armed with a dagger. They have further deposed that the said dacoit has assaulted his father causing injury on his right chest. PW 2 has identified the appellant in the dock as a participant in the dacoity. PW 1 has also identified him in the dock as such. However, PW 8 could not identify the appellant in the dock due to the fact that three years have elapsed since then. PW 8 has further deposed that the police has recovered a dagger from the appellant in his presence and he has witnessed the said seizure and has put his signature on the seizure list. From the evidence aforesaid it is crystal clear that a dacoity has been committed in the house of the informant at 19.30 hours on 23.9.1992 in which ornaments worth Rs. 6,000/- were taken away by the dacoits and this appellant was apprehended in the course of commission of dacoity from the room inside the house of the informant. Therefore, the defence version that the appellant had come to the house of his relative in the village of the informant and on alarms he had come to the place of occurrence along with others lacks credence and it is highly improbable. His other defence, that there had been an altercation between him and son of the informant and he has beaten the son of the informant and the family of the informant has apprehended him and assaulted him and confined him in a room and the police has come at the instance of his family members to recover him and the informant has concocted as false case of dacoity implicating him, equally lacks credence and is unacceptable. In view of the evidence on the record the defence version of the appellant, does not at all appear to be natural and probable. 10. The occurrence in question has taken place on 23.9.1992 at 19.30 hours. The fardbeyan of the informant was recorded at 4.30 hours on 24.9.1992 i.e. after 8 hours of the occurrence. No information to the police has been given by the informant or by any co-villager of the informant at the police station regarding the occurrence. 10. The occurrence in question has taken place on 23.9.1992 at 19.30 hours. The fardbeyan of the informant was recorded at 4.30 hours on 24.9.1992 i.e. after 8 hours of the occurrence. No information to the police has been given by the informant or by any co-villager of the informant at the police station regarding the occurrence. The police in course of patrolling duty is said to have come to the place of occurrence where the fardbeyan of the informant was recorded and the appellant was handed over to the police. PW 1 in paragraph 8 has deposed that the police station is 8 Kms. away from his house but this evidence of the informant appears to be incorrect. The formal FIR (Ext. 3) shows the distance of the police station from the village of the informant which is 14 Kms. According to the prosecution case other dacoits have escaped from the place of occurrence and in such a situation it was but natural for the informant or his family members as well as of the co-villagers not to go to the police station in the night of the occurrence to report about it. Therefore, in the facts and circumstances of this case the ratio of the case of Ganauri Muni (supra) has no application to the facts of this case and the learned Court below rightly did not act upon the ratio of the said case. The acquittal of co-accused Safdar Ansari in the absence of any legal evidence on the record implicating him in the dacoity in question is of no help to the appellant in this case. Therefore, the contention of the learned counsel for the appellant that there has been unexplained delay in lodging the case by the informant has no substance in the facts and circumstances of this case. 11. Therefore, the contention of the learned counsel for the appellant that there has been unexplained delay in lodging the case by the informant has no substance in the facts and circumstances of this case. 11. It is true that the I.O. and the doctor have not taken oath in this case for the prosecution and the objective finding of the I.O. regarding the place of occurrence as well as the existence and the nature of the injury on the person of the informant have not been brought on the record but in the facts and circumstances of this case no prejudice has been caused to the appellant in view of the fact that there is reliable evidence on the record that this appellant was caught at the place of occurrence and was handed over to the police at the place of occurrence when the fardbeyan of the informant was reduced into writing. And last but not the least, the discrepancy in the evidence of the witnesses regarding the number of dacoits participating in the dacoity as well as the apprehension of the appellant at 7.00 p.m. as deposed by PW 8 is not of such a magnitude to cast a cloud of suspicion to the credibility of the warp and woof of the prosecution case and it cannot be said that the appellant has been falsely implicated in this case. The learned Court below has meticulously considered the evidence in proper perspective and has rightly come to the finding of the guilt of the appellant. Therefore, there is no illegality in the impugned judgment requiring an interference therein. 12. It has been contended in the alternative that this appellant has remained in custody for the period of six years with effect from 24.9.1992 and he was enlarged on bail on 25.9.1998 by the order of this Court in this appeal and in that view of the matter, he stands sufficiently punished and the sentence of the appellant may be modified to the period already undergone by him. The learned Court below has sentenced the appellant to undergo rigorous imprisonment for ten years in this case. The learned Court below has sentenced the appellant to undergo rigorous imprisonment for ten years in this case. Since this appellant had remained in custody for six years in this case and as such it will suffice the ends of justice that sentence may be modified to the extent already undergone by him and in this view of the matter the period of sentence of the appellant is modified to the extent already undergone by him in custody. 13. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed subject to the modification of the sentence as stated above. The appeal is hereby dismissed. The appellant is hereby discharged from the liability of his bail bond.