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2005 DIGILAW 546 (PAT)

State of Bihar v. Md. Rubban

2005-06-20

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JUDGMENT PRASAD & ALAM, JJ. State, being aggrieved by the judgment dated 27th of January, 1988 passed by the First Additional Sessions Judge, Madhepura in Sessions Case No. 192 of 1986 acquitting the respondents from all the charges, has preferred this appeal. 2. Prosecution story according to the first information report given by P.W.4 Bhuneswar Das before the Sub-Inspector of Police of Madhepura Police Station on 14.1.1986 at 7.30 P.M. is that on the said date he along with his cousin P.W.6, Madho Das, P.W.5 Maheshwar Das and P.W.7 Jai Prakash Das, all of whom sell cloths, were returning from the market along with unsold cloths. It is alleged that when they reached near Sabaila Chowk, accused persons came there, forcibly stopped the rickshaws and accused Md. Rubban to whom informant knew from before pressed his neck, snatched the wrist watch as also cash from his shirt. It was further alleged that other accused persons snatched the cloth bundle of Jai Prakash Das and Maheshwar Das. According to the informant, while the accused persons were committing loot, one person came there and went towards the village raising alarm. On the alarm, the villagers chased the miscreants and. ultimately accused Rubban was apprehended by the villagers, namely, Uma Shankar Yadav, P.W.1, Phuleshwar Yadav, P.W.2 and Ramesh Kumar Yadav, P.W.3. The apprehended accused was brought t6 the residence of the Mukhiya, Devendra Yadav where according to the informant, he made an extra judicial confession and disclosed the names of other accused person, namely, Junid and Sikandra besides other accused persons. According to the informant, 20thans of fungi worth Rs.1200/- and 20 pieces of handloom bed sheets worth Rs.300/- were looted in the occurrence. 3. On the basis of the aforesaid information, Madhepura P.S. Case No. 13 dated 14.8.1986 was registered under Section 395 of the Indian Penal Code. During investigation one fungi was recovered from the possession of accused Sikandra. Accused Junid and Sikandra were put on Test Identification Parade conducted by Magistrate, P.W.8 Mr. Md. Jaisul Islam in which P.W.4 Puleshwar Das, P.W.5 Maheshwar Das, P.W.7 Jai Prakash Das and Shiv Narayan Sah participated. P.W.7 Jai Prakash Das identified accused Junid whereas other witnesses did not identify any accused person the fungi recovered from Md. Sikandra was put on T.1. Parade and was identified by P.W.5 Maheshwar Das. 4. Md. Jaisul Islam in which P.W.4 Puleshwar Das, P.W.5 Maheshwar Das, P.W.7 Jai Prakash Das and Shiv Narayan Sah participated. P.W.7 Jai Prakash Das identified accused Junid whereas other witnesses did not identify any accused person the fungi recovered from Md. Sikandra was put on T.1. Parade and was identified by P.W.5 Maheshwar Das. 4. Police after investigation submitted charge sheet under Sections 395 and 412 of the Indian Penal Code against the present respondents and two other accused persons, namely, Jokhu Mandai and Gulab and the case was ultimately committed to - the Court of Sessions. During the trial, •all the accused persons were charged for offence under Section 395 of the India Penal Court and accused Sikandra was further charged for offence under Section 412 of the Indian Penal Code. The application filed by accused Jokhu Mandai for discharge has been allowed by the trial Court and the trial of Gulab has been separated, as he is absconder in the case. 5. Prosecution in support of its case has altogether examined nine witnesses out of whom P.W.1 Uma Shankar Yadav, P.W.2 PhuleshwarYadav and P.W.3 Ramesh Kumar Yadav are the witnesses, who apprehended accused Md. Rubban, PWs. 5 to 7 were in the company of the informant P.W.4 Bhuneswar Das at the time of dacoity. PW 8 Mr. Md. Jaisul Islam is the Magistrate, who conducted the test identification parade whereas PW.9 Jay Dayal Singh is the Investigating Officer of the case. 6. Accused persons pleaded not guilty and denied to have committed any offence. Accused Rubban further denied to have made any confessional statement and his plea is that because of dispute in collection of tolls from the market that he has been falsely implicated in the case. Specific plea of accused Sikandra is that the fungi recovered from him is a common article without any specific mark of identification. Accordingly, they prayed for their acquittal. 7. The learned Judge on appreciation of the evidence on record did not place any reliance on the extra judicial confession of accused Md. Rubban. He further found that persons before whom such extra judicial confession was made, were either not examined and those examined did not support the case of prosecution. PW.1 Uma Shankar Yadav before whom the said confession was allegedly made did not support the case of the prosecution whereas PW.2 Phuleshwar Yadav has been tendered. Rubban. He further found that persons before whom such extra judicial confession was made, were either not examined and those examined did not support the case of prosecution. PW.1 Uma Shankar Yadav before whom the said confession was allegedly made did not support the case of the prosecution whereas PW.2 Phuleshwar Yadav has been tendered. PW.3 Ramesh Kumar Yadav has been declared hostile. The learned Judge further found that although accused Junid was identified by PW.5 Maheshwar Das in the Test Identification Parade, but he did not identify the said accused during the trial. The learned Judge further found that the fungi said to have been recovered from the accused Junid, did not had specific mark of identification. 8. Taking into consideration the aforesaid infirmities besides other infirmities in the case of the prosecution, the learned Judge came to the conclusion that the prosecution did not prove its case beyond all reasonable doubt and accordingly, gave the accused persons the benefit of doubt and acquitted them of all the charges. 9. Mr. Lala Kailash Bihari Prasad appearing on behalf of the appellant submits that the very fact that accused Rubban was arrested at the spot itself shows that he participated in the crime and hence, the learned Judge erred in acquitting him of the charge levelled against him. 10. Mr. P.K. Agrawal, however, appearing on behalf of the respondents submits that the prosecution intends to sustain the charge against this accused on the basis of the alleged confessional statement and the witnesses before whom said confessional statement was given having not been examined, it will be unsafe to reverse the judgment of acquittal to that of conviction. 11. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Lala Kailash Bihari. According to the prosecution, accused Rubban was apprehended by PWs.1, 2 and 3. They also claimed to be the witnesses before whom the alleged confession was made. P.W.1 in paragraph 2 of his deposition has clearly stated that Md. Rubban had not made any confession before him. PW.2 has been tendered, whereas PW.3 has been declared hostile According to the prosecution, said Ruban was brought to the residence of Mukhiya Dev Narayan Yadav where he is alleged to have made the confession, but said Dev Narayan Yadav has not been examined. Rubban had not made any confession before him. PW.2 has been tendered, whereas PW.3 has been declared hostile According to the prosecution, said Ruban was brought to the residence of Mukhiya Dev Narayan Yadav where he is alleged to have made the confession, but said Dev Narayan Yadav has not been examined. Further the confession was allegedly made in presence of Sarpanch Parmanand Yadav and villager Balram Yadav, who have not been examined. Thus, the witnesses, who have been examined, had not supported the case of the prosecution and other witnesses before whom said Rubban had made confession, have not been examined. Further according to the prosecution accused Rubban was armed and had snatched the wrist watch and cash from the informant but nothing has been recovered from his possession. It is not the case of the prosecution that during, chase he threw these articles. Not only this confession is not self inculpatory. 12. As regards accused Junid, PW.7 Jai Prakash Das in paragraph 2 of his deposition has stated that in the Test Identification Parade, he had identified one of the decoits, but did not identify him in the dock. The learned Magistrate, who had held the T.I. Parade had only proved the chart and had not stated that PW.7 had identified any accused person. Accused Junid has not been identified by PW.7 Jai Prakash Das during the trial and the prosecution has not brought on record any other material to connect him with the crime. 13. So far as accused Sikandra is concerned the only material to connect him with the crime is the alleged recovery of a fungi from him. P.W.5 Maheshwar Das has stated that Test Identification Parade was held in respect of cloths looted and he had identified one fungi in the Test Identification Parade. However, in paragraph 4 of his cross-examination, he has stated that the fungi, which he had identified, is commonly available in the market and there is no specific mark of identification on it. 14. In our opinion mere recovery of a fungi, which has no special identification mark will not lead to the conclusion that it was the same fungi, which was looted in the occurrence. 15. 14. In our opinion mere recovery of a fungi, which has no special identification mark will not lead to the conclusion that it was the same fungi, which was looted in the occurrence. 15. It is well settled that this Court does not interfere with the judgment of acquittal when the view taken by the Trial Judge, is one of the possible views we have appreciated the-evidence of record and found the extra judicial confession to be not self inculpatory besides untrustworthy. Accused Junid has not been identified by the solitary witness during trial. Recovery of lungi without any identification mark and commonly available does not point out to the guilt of accused Sikandra. 16. Hence, we are of the opinion that the view taken by the learned Judge while acquitting the accused persons is one of the possible views, which does not call for interference by the Court in the present appeal. 17. In the result, we do not find any merit in the appeal and is dismissed, accordingly.