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2005 DIGILAW 499 (PAT)

Anu Mian @ Akhter Mian v. State Of Bihar

2005-05-06

SYED MD.MAHFOOZ ALAM

body2005
Judgment Syed Md.Mahfooz Alam, J. 1. This criminal appeal has been preferred against the judgment and order dated 21.12.2002 passed by Sri Kamla Prasad Sinha, Presiding Officer, 1st Additional Court of Session, Fast Track, Nawadah in Sessions Trial No. 74/ 2002/234/99 whereby he has been pleased to convict all the five appellants under Section 395 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years under the said sf3ction. Appellant Krishna Rajbanshi has further been convicted under Section 412 of the I.PC. but no separate sentence has been awarded to him in the said section. 2. The prosecution case, in brief, is that in the night between 30th day of June and 1st day of July, 1998 Basarat Mian alongwith his daughter, Sahar Bano, son Faruk Rijabi, wife Farida Begam and his wifes sister Jubeda was sleeping in the house. Basarat Mian was sleeping at first floor of the house. His wife Farida Begam and his mother Shakina Khatoon were sleeping in the Verandah of the house. In the mid of night, one dacoit managed to climb over the first floor with the help of the drain pipe and opened the eastern gate of the house. Thereafter 8-10 dacoits entered into the house of the informant and they went to the first fioor where Basarat Mian was sleeping. They all overpowered Basarat Mian and gave order to point out valuables of the house. The dacoits also inflicted him blows of Saif and iron rods. Thereafter they threw him in the lane adjacent west to the house of Basarat Mian. On hearing cries and screams of her husband, wife of Basarat Mian, namely, Farida Begam and other members of his family woke up. In the meantime, 5-6 dacoits came down from the first floor and restrained Farida Begam. They asked her to hand over the key of the room. Due to fear Farida Begam handed over the key to the dacoits and on the order of dacoits, she also handed over her ornaments. Further case is that 4-5 dacoits entered into her room and removed four boxes from there. They also entered into the room of her sister Jubeda and from there dacoits looted two boxes and two attachies. The dacoits collected all the utensils of the house and tied them in a Lungi and thereafter they started running away. Further case is that 4-5 dacoits entered into her room and removed four boxes from there. They also entered into the room of her sister Jubeda and from there dacoits looted two boxes and two attachies. The dacoits collected all the utensils of the house and tied them in a Lungi and thereafter they started running away. Thereafter Farida Begam went to the first floor of her house and came to know that her husband Basarat Mian had sustained injuries due to assault done by the dacoits and was lying in the lane in injured condition. Then Farida Begam went to the lane and found her husband lying in injured condition. On reaching there her husband Basarat Mian disclosed that he had identified accused Ajam Mian and his son Maksud Mian amongst the dacoits and thereafter he became unconscious. 3. It is further said that Farida Begam had identified Raj Kumar Rajbwar and Janak Rajwar amongst the dacoits alongwith one dacoit who had mark of pox on his face and was residing at village Gorabigha. Further case is that on Hulla, villagers rushed to the house of Basarat Mian and they started chasing the dacoits. Meanwhile one of the dacoits threw a bomb which exploded but the villagers did not stop and they remained chasing the docoits. In the meantime, he again threw a bomb which could not explode. After chase the villagers succeeded in catching hold of one of the dacoits, who was behind others and was throwing bomb upon the villagers. The apprehended dacoit disclosed his name as Anu Mian alias Anwar Mian. He also made extra-judicial confession and disclosed that accused Ajam Mian and Rajkumar Rajwar had invited him to commit the dacoity. The said Raj Kumar Rajwar was also identified by Farida Begam. 4. Further case is that Basarat Mian disclosed to the villagers that he had identified accused Ajam Mian and Maksud Mian amongst the dacoits. Basarat Mian was removed to Sadar Hospital Nawada for treatment of his injuries. On getting information, the Officer Incharge of Narhat Police Station, namely, Amarnath Thakur P.W.13 reached the place of occurrence and on 1.7.1998 at about mid day recorded the fardbeyan (Ext. 4) of Farida Begam, wife of Basarat Mian. He also arrested one of the dacoits Anu Mian, who was caught by the villagers. On the basis of the fardbeyan of Farida Begam, Narhat RS. 4) of Farida Begam, wife of Basarat Mian. He also arrested one of the dacoits Anu Mian, who was caught by the villagers. On the basis of the fardbeyan of Farida Begam, Narhat RS. Case No. 42/98 under Section 395 of the Indian Penal Code was registered and investigation was taken up by S.I., Amarnath Thakur of the same Police Station. 5. During investigation, Sri Amarnath Thakur raided the house of accused Krishna Rajbanshi on the basis of confessional statement of Anu Mian and recovered looted articles including clothes, cash, ornaments, watch, boxes and other utensils. He also recovered clothes of accused Annu Mian from the house of Azam Mian on the basis of confessional statement of Anu Mian. He also recorded the statements of the prosecution witnesses and got test identification parade of accused as well as looted articles done and after completing investigation submitted chargesheet against the accused on the basis of which cognizance of the offence was taken and the appellants were committed to the Court of Session and thereafter charge under Sections 395 and 412 of the Indian Penal Code was framed against the appellants, who pleaded not guilty and then they were put on trial and by the impugned judgment and order, they were convicted and sentenced, as stated above. 6. The defence case is that the appellants were falsely implicated in this case and the articles which are said to be looted articles are actually the articles of daily use and are generally found in the house of each and every individual. 7. As stated above, all the five appellants stand charged under Section 395 of the Indian Penal Code and appellant Krishna Rajbanshi also stands charged under Section 412 of the I.PC. 8. First of all I would like to take up the charge under Section 395 of the Indian Penal Code. All the five appellants stand charged under Section 395 of the I.P.C. in the following manner:"That you in between the night of 30th day of June and 1 st of July, 1998 at village Barakhurd, P.S. Narhat, District Nawadah alongwith others committed dacoity in the house of Farida Begam and thereby committed an offence punishable under section 395 of the Indian Penal Code". 9. So far as the factum of dacoity is concerned, it is not disputed and there are overwhelming evidence on record to prove the factum of dacoity. 9. So far as the factum of dacoity is concerned, it is not disputed and there are overwhelming evidence on record to prove the factum of dacoity. In this regard there is (direct evidence of P.W. 6 Basarat Hussain, P.VV.7 Sahar Bano, P.W. 8 Sakina Khatoon and P.W.11 Farida Begam. They are all inmates of the house of informant Farida Begam and they all have deposed that in the alleged night the dacoits had committed dacoity in the house of Farida Begam wife of Basarat Hussain. The evidence of abovesaid witnesses finds corroboration from the evidence of P.W. 1 Md. Qurban Ali, P.W. 2 Md. Zaheer and P.W. 3 Md. Muslim. They have deposed that in the night of occurrence on hearing Hulla they rushed towards the house of Basarat Hussain, (husband of Farida Begam) and on reaching there they saw Basarat Hussain lying in injured condition in a lane adjacent to his house who disclosed that he had identified Azam Mian and Maksud Alam amongst the dacoits. The factum of dacoity further finds corroboration from the evidence of P.Ws. 1, 2, 3, 7, 8 and 11 who all deposed that the dacoits were chased and on chase the villagers had apprehended one of the dacoits who it disclosed his name as Annu Mian. This fact further finds support from the evidence of P.W. 5 Chaukidar 9/1 Lalo Gope and P.W.13 Amar Nath Thakur (Investigating Officer) as both the witnesses have deposed that the villagers had handed over the apprehended dacoit-namely Annu Mian to them. There is one more circumstance which supports the factum of dacoity as there is specific case of the prosecution that during the dacoity, the dacoits had assaulted Basarat Mian brutally and had thrown him in the lane and practically all the witness have supported this fact that they saw Basarat Mian lying in injured condition in the lane. The evidence of P.W. 4 Dr. A.K. Manjhi and his injury report (Ext. 1) shows that he had found as many as seven injuries on the person of Basarat Mian out of which injury nos. 6 and 7 were grievous in nature. Thus, I find overwhelming evidence on record in support of the prosecution case that on the alleged date and time a dacoity was committed in the house of informant Farida Begam wife of Basarat Mian. 10. 6 and 7 were grievous in nature. Thus, I find overwhelming evidence on record in support of the prosecution case that on the alleged date and time a dacoity was committed in the house of informant Farida Begam wife of Basarat Mian. 10. The next point for consideration in this case is as to whether the prosecution has succeeded in proving that the appellants were the dacoits who had committed dacoity in the house of Farida Begam on the alleged date and time. In this regard, I find that there are four material witnesses in this case, namely, P.W. 6 Basrat Hussain, P.W. 7 Sahar Bano, P.W. 8 Sakina Khatoon and P.W.11 Farida Begam as they are inmates of the house in which the dacoity was committed. Amongst them, P.W. 6 Basarat Hussain is the most important witness in this case as during the commission of dacoity, he was brutally assaulted by the dacoits and so, on the point of identification of the dacoits, his evidence is of much importance. His evidence is as follows:In the relevant night he was sleeping on the roof of his house. His son Faruk Rajibi, daughter Sahar Bano and the sister of his wife were also sleeping on the roof. His wife and mother-in-law were sleeping in the ground floor. In the night of occurrence in between 1 to 1.30 A.M. he heard the sound of foot-steps of some person on the roof and woke up. He saw one person going down the stairs who opened the entrance gate and thereafter 8-10 other dacoits entered into his house and climbed over the roof. They overpowered him. Amongst the dacoits, he identified accused Azam Mian, Maksud Mian, Janak Rajbanshi, Rajkumar Rajbansi, Anu Mian and Krishna Rajbanshi. He has further deposed that Janak Rajbanshi struck him with saif over his head. Maksud Mian and Azam Mian struck him with iron rod and thereafter they threw him down in the lane in the west of his house. He has further deposed that while he was lying in the lane in injured condition, Md. Zahir (P.W. 2), Qurban Ali (P.W.1) and his wife (P.W.11) came there to whom he disclosed the names of Azam Mian and Maksud amongst the dacoits. P.W. 6 has also identified all the accused who were present in dock on the date of his deposition. Zahir (P.W. 2), Qurban Ali (P.W.1) and his wife (P.W.11) came there to whom he disclosed the names of Azam Mian and Maksud amongst the dacoits. P.W. 6 has also identified all the accused who were present in dock on the date of his deposition. P.W. 6 has also deposed that he had identified the looted articles in the test identification parade. Thus, the evidence of P.W. 6 shows that he claims to have identified all the five appellants amongst the dacoits besides one more dacoit, namely, Janak Rajbanshi. 11. The above evidence of P.W. 6 finds corroboration from the evidence of P.W. 7 (daughter of Basarat Mian) and P.W.1 Farida Begam wife of Basarat Mian as both the witnesses have deposed that on Hulla when they went near P.W. 6 Basarat Mian they found him lying in injured condition. He disclosed that he had identified Azam Mian and Maksud Alam amongst the dacoits and thereafter he (Basarat Mian) became unconscious. So, there remains no doubt that at the very beginning, P.W.6 Basarat Mian had disclosed the names of appellants Azam Mian and Maksud Alam amongst the dacoits. The fact that immediately after the occurrence of the dacoity and in the very night, P.W.6 Basarat Hussain had disclosed the names of appellants Azam Mian and Maksud Mian amongst the dacoits further finds corroboration from the evidence of co-villagers of Basarat Mian i.e. P.W.1 Md. Qurban Ali, P.W. 2 Md. Zahir and P.W. 3 Md. Muslim, who all have deposed that on hearing Hulla in the night, they rushed towards the house of Basarat Mian and found him in injured condition in the lane by the side of his house. They have further deposed that Basarat Mian told them that amongst the dacoits he had identified Azam Mian and Maksud Alam. The fact that appellants Azam Mian and Maksud Alam were involved in the dacoity further finds corroboration from the fact that one of the dacoits, namely, Anu Mian was apprehended by the villagers while the dacoits were retreating and practically, all the witnesses of the occurrence have deposed that the said Anu Mian had made extra-judicial confession in which he had admitted that he was called by Azam Mian and Maksud Mian to commit dacoity in the house of Basarat Mian. It is true that P,Ws. It is true that P,Ws. 1 & 3 have deposed that Annu Mian had disclosed the name of Azam Mian only whereas P.W.11 (informant) has deposed that Anu Mian had disclosed the names of Azam Mian and Rajkumar Rajbar but in my opinion, it is not a very material contradiction. Thus, I find that there are overwhelming evidence on record to corroborate the prosecution case that on the alleged date of occurrence accused Maksud alias Maksud Alam and Azam Mian had participated in the commission of dacoity in the house of Basarat Mian alongwith other dacoits. 12. As regards appellant no. 1 Anu Mian alias Akhtar Mian, I find that there are at least seven identifications on record in the shape of P.Ws. 1, 2, 3, 6, 7, 8 and 11. According to P.Ws. 6, 7, 8 and 11, (Ali inmates of the house of Basarat Mian) they had identified accused Anu Mian amongst the dacoits alongwith other dacoits. According to P.Ws. 1, 2 and 3, they had chased the dacoits and on chase, they had apprehended one of the dacoits, who had disclosed his name as Anu Mian. This statement of RWs. 1, 2 and and 3 further finds corroboration from the evidence of P.W.5, Lalo Gope, Chaukidar, and P.W. 13 Amar Nath Thakur (I.O) as P.W. 5 has deposed that the villagers had handed over the apprehended dacoit to him and on arrival of the police, he had handed over the said dacoit to the Investigating Officer. P.W. 13 corroborating this statement has deposed that he had taken the apprehended dacoit, namely, Anu Mian in his custody. Thus, I find that so far as identification of accused Anu Mian is concerned, there is again overwhelming evidence on record in this regard. 13. As regards appellant Raj Kumar Rajbanshi alias Rajkumar Rajbar, I find that at the very initial stage, informant Farida Khatoon has disclosed in her fardbeyan that she had identified appellant Raj Kumar Rajbar amongst the dacoits alongwith one Janak Rajbar (not on trial) and one dacoit, who was of village Gora Bigha, and who had mark of pox on his face. The fardbeyan (Ext. 4) further discloses that she has stated before the police that Anu Mian after being apprehended had disclosed that he was called by appellants Azam Mian and Raj Kumar Rajbar to commit dacoity in the house of Basarat Mian. The fardbeyan (Ext. 4) further discloses that she has stated before the police that Anu Mian after being apprehended had disclosed that he was called by appellants Azam Mian and Raj Kumar Rajbar to commit dacoity in the house of Basarat Mian. So, I find that at the very initial stage, the name of Raj Kumar Rajbanshi was disclosed amongst the dacoits, who had committed dacoity in the house of Basarat Mian. The evidence of P.W. 6 Basarat Hussain, P.W. 7 Sahar Bano and P.W.11 Farida Begam shows that they all have claimed to have identified Raj Kumar Rajbanshi at the time of commission of dacoity. P.W.11 has further supported this fact in her deposition that the apprehended dacoit, namely, Anu Mian disclosed that he was called by appellants Azam Mian and Raj Kumar Rajbanshi to commit dacoity in her house. However this evidence of P.W.11 was not corroborated by independent witnesses but in my view, it is not very material as RWs. 6, 7 and 11 all have deposed that they had identified accused Raj Kumar Rajbanshi amongst the dacoits and he is also named accused in the first information report. I, therefore, hold that there is sufficient evidence on record to believe that on the alleged date of occurrence this appellant Raj Kumar Rajbanshi had participated in the commission of dacoity in the house of Basarat Mian. 14. As regards identification of appellant Krishna alias Krishna Rajbanshi, I find evidence of P.Ws. 6 and 11 on record. RW. 6 has deposed that he had identified accused Maksud Alam, Janak Ram, Raj Kumar Rajbanshi, Anu Mian and Krishna alias Krishna Rajbanshi. P.W.11 corroborating the evidence of RW. 6 has deposed that she had also identified Krishna alias Krishna Rajbanshi amongst the dacoits. The evidence of P.W.6 and P.W.11 further finds corroboration from the evidence of P.W. 14, Krishna Kumar, Judicial Magistrate, who has deposed that he conducted test identification parade of Krishna alias Krishna Rajbanshi and in his presence, Farida Begam (P.W.11) and Basarat Mian (P.W. 6) had identified the accused and accordingly, he had prepared the test identification chart (Ext. 6). This shows that P.Ws. 6 and 11 had not only identified the accused Krishna Rajbanshi at the time of commission of dacoity but they also identified him in the test identification parade. 6). This shows that P.Ws. 6 and 11 had not only identified the accused Krishna Rajbanshi at the time of commission of dacoity but they also identified him in the test identification parade. The involvement of this accused in the alleged dacoity further finds support from the evidence of P.W.13 (I.O.) in which he has deposed that on the basis of confessional statement of co-accused Anu Mian, he had conducted raid in the house of Krishna Rajbanshi and from there he had recovered the articles which were looted from the house of Basarat Mian and accordingly, he had prepared seizure list (Ext. 5/1). From the evidence of P.W. 12 Suresh Choudhary, Anchal Adhikari, Sikandara, it appears that P.W.11 Farida Begam and P.W. 6 Basarat Hussain had identified those recovered articles in test identification parade conducted by him (P.W.12). Thus, the above evidence fully establishes the complicity of appellant Krishna alias Krishna Rajbanshi in the occurrence of dacoity which had taken place in the house of Basarat Mian on the alleged date of occurrence. 15. It has been argued on behalf of the appellants that as per the evidence of the prosecution witnesses, all the appellants were known to them from before the date of occurrence and, therefore, it is not believable that the appellants could have gone to the house of Basarat Mian for committing dacoity without covering their faces which goes to show that the appellants were falsely implicated in this case by Basarat Mian and his family members. But I cannot accept this argument of the learned counsel for the appellants in view of the fact that no direct or indirect evidence has come on record that there was enmity between the informants family and the appellants. Moreover, the evidence on record shows that Basarat Mian was brutally assaulted by the dacoits and as per the evidence of P.W. 4, as many as seven injuries of serious nature were found on his person but in spite of being injured, he had disclosed the names of appellants Azam Mian and Maksud Alam amongst the dacoits immediately after the occurrence of dacoity. So, the complicity of these two appellants cannot be said to be afterthought. So, the complicity of these two appellants cannot be said to be afterthought. Likewise, appellant Anu Mian alias Akhter Mian was arrested at the spot and so, his complicity with the alleged occurrence of the dacoity is also not doubtful and so far Raj Kumar Rajbanshi alias Raj Kumar Rajbar and Krishna alias Krishna Rajbanshi are concerned, I again find that name of Raj Kumar Rajbansi was also disclosed immediately after the occurrence of dacoity and Krishna alias Krishna Rajbanshi was not only identified by the witnesses in T.I. Parade but from his house looted articles were also recovered. I am therefore of the view that there are sufficient and reasonable ground to discard the argument of the defence counsel that the appellants were falsely implicated in this case. I, therefore, hold that the trial court has rightly held the appellants guilty under Section 395, I.P.C. for committing the offence of dacoity in the house of the informant on the alleged date of occurrence. Accordingly, I uphold the conviction of all the five appellants under Section 395, I.P.C. passed by the trial court. 16. As regards the conviction of appellant Krishna alias Krishna Rajbanshi under Section 412 of the I.P.C, in this regard I find the evidence of P.Ws. 6, 9, 10, 11, 12 and 13 relevant. P.W. 6 Basarat Hussain and P.W.11 Farida Begam have deposed that during the Investigation the police had recovered some of the looted articles from the house of this appellant and this fact has been corroborated by P.W.13, the investigating Officer, who has deposed that during the investigation he had recovered some looted articles from the house of this appellant Krishna alias Krishna Rajbanshi vide seizure list (Ext. 5). P.Ws. 6 and 11 have further deposed that they had attended T.I. Parade of the articles and in the T.I. Parade they had identified certain articles. This evidence of RWs. 6 and 11 finds corroboration from the evidence of RWs. 9, 10 and 12. P.Ws. 9 and 10 have deposed that they had witnessed the T.I. Parade whereas P.W.12 Suresh Choudhary, Circle Officer, has deposed that he had conducted the T.I.Parade of the articles in which P.W.6 Basarat Hussain and P.W.11 Farida Begam had identified certain articles and accordingly, he had prepared the T.I.Chart (Ext. 3). 9, 10 and 12. P.Ws. 9 and 10 have deposed that they had witnessed the T.I. Parade whereas P.W.12 Suresh Choudhary, Circle Officer, has deposed that he had conducted the T.I.Parade of the articles in which P.W.6 Basarat Hussain and P.W.11 Farida Begam had identified certain articles and accordingly, he had prepared the T.I.Chart (Ext. 3). Thus, from the evidence of the abovesaid witnesses, it is established beyond doubt that during the investigation the articles which were looted from the house of informant Farida Begam at the time of commission of dacoity were recovered from the house of this appellant and as per T.I. Chart (Ext. 3), those articles were identified by Basarat Hussain and informant Farida Begam. Thus, there is overwhelming evidence on record to establish the charge of Section 412 of the I.P.C. against appellant Krishna alias Krishna Rajbanshi. I, therefore, hold that the learned trial court has rightly found the appellant Krishna alias Krishna Rajbanshi guilty under Section 412 of the I.P.C. Accordingly, I uphold the conviction of appellant Krishna alias Krishna Rajbanshi under Section 412 of the I.P.C. 17. Regarding the sentence, it has been argued that the sentence passed against the appellants for rigorous imprisonment of ten years is very harsh and as such, the same should be reduced. In this regard, I have to say that in view of the fact that the appellants had brutally assaulted P.W. 6 Basarat Hussain at the time of commission of dacoity, as such, punishment given to the appellants does not appear to be very harsh. 18. In the result, I do not find any merit in this criminal appeal and hence, the same is hereby dismissed.