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2005 DIGILAW 657 (PAT)

Vijay Sah v. State Of Bihar

2005-07-28

AFTAB ALAM, REKHA KUMARI

body2005
Judgment Rekha Kumari, J. 1. The appellant calls in question the legality of the impugned judgment passed by Sri Daroga Prasad, 4th Additional Sessions Judge, Sitamarhi in Sessions Trial No. 318 of 1996 whereby he has held the appellant guilty u/s. 396 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also to pay a fine of Rs. 10,000.00 and in default to undergo further rigorous imprisonment for two years. 2. The prosecution version which led to the trial of the appellant is as follows: 3. In between the night of 13th/14th March, 1996 when informant Sanjiv Kumar Tiwari (PW 5) was sleeping in his house in a room with his wife, he heard some commotion. His father opened the door. Some of the miscreants entered into the house and assaulted his father. The father of the informant ran away from the house. In the meantime, 5-6 dacoits entered into the room of the informant, among whom the informant identified one Nagendra Mandal of village Birpur Malkana. He was holding a Katta in his hand and others were holding iron rod etc. One of them told to kill the informant and his wife. The informant took out bamboo sticks of his mosquito net and chased them. The dacoits went away outside the door. He went to the door where he saw 5-7 more dacoits armed with Pistol, iron rod etc. He shut the door. The dacoits tried to open the door but could not succeed. On this, one of the dacoits went to the roof of the house and fired which hit the informant on his thigh. His mother tried tp save him when the dacoits again fired which hit his mother. The informant in order to save himself any how managed to go outside his house and raised alarm. Several villagers, namely, Shyamdeo Tiwary, Umesh Mandal, Raj Kishore Raut, Mahendra Tiwari, Ram Sanehi Tiwary and many others assembled there but no one dared to go near the dacoits. The informant was then taken to Sursand Hospital. After sometime the informants father Ram Japan Tiwary, wife Mamta Devi, mother Sumitra Devi, grand mother Ram Peyari Devi who had also received injuries were brought to Sursand Hospital. The condition of the grand mother who had received fire arm injuries was serious. The dacoits looted away ornaments, cash etc. from the house of the informant. 4. After sometime the informants father Ram Japan Tiwary, wife Mamta Devi, mother Sumitra Devi, grand mother Ram Peyari Devi who had also received injuries were brought to Sursand Hospital. The condition of the grand mother who had received fire arm injuries was serious. The dacoits looted away ornaments, cash etc. from the house of the informant. 4. On 14.3.1996 at 2.15 hours the fardbeyan of the informant was recorded by the Officer-in-charge of Sursand Police Station at Primary Health Centre, Sursand. On the basis of the fardbeyan a police case was registered and a formal first information report was drawn up. During investigation, in course of treatment injured Ram Peyari Devi died. The Police after usual investigation filed charge-sheet against the appellant and a co-accused Ram Rekha Thakur under Sec. 396 of the Indian Penal Code, 1860 . The case, after cognizance, was committed to the Court of Sessions and the accused persons were put on trial. 5. It will not be out of place to mention here that though Nagendra Mandal was named in the first information report as one of the dacoits he was not sent up for trial. In course of trial, however, the said Nagendra Mandal and one Bhola Mandal were summoned u/s. 319, Cr PC. The trial of accused Nagendra Mandal was separated and the appellant faced trial along with accused Ram Rekha Thakur and Bhola Mandal. The trial Court acquitted accused Ram Rekha Thakur and Bhola Mandal and convicted the appellant. 6. The appellant was charged u/s. 396 of the Indian Penal Code, 1860 . He pleaded not guilty to the charge. 7. In order to further its version, nine witnesses altogether were examined by the prosecution, among whom PW 5 Sanjiv Kumar Tiwari is the informant, PW 4 Ram Japan Tiwari is his father and PW 6 Sumitra Devi is his mother. PW 2 Raj Kishore Raut, PW 3 Shyamdeo Tiwary and PW 7 Ram Sanehi Tiwari are the neighbours of the informant. PW 8 Krishna Nandan Rai is the Investigating Officer and PW 9 Dr. Om Prakash Chaurasia, is the doctor who conducted the post mortem examination on the dead body of the grand mother of the informant. PW 1 is the Umesh Mandal who has been declared hostile. 8. The appellant examined DW 1 Rajdeo Shukla and DW 2 Saket Shukla, who are formal witnesses and have proved the signature (Ext. Om Prakash Chaurasia, is the doctor who conducted the post mortem examination on the dead body of the grand mother of the informant. PW 1 is the Umesh Mandal who has been declared hostile. 8. The appellant examined DW 1 Rajdeo Shukla and DW 2 Saket Shukla, who are formal witnesses and have proved the signature (Ext. A), endorsement (Ext. A/1) and the petition of the appellant (Ext. B) addressed to the Sub-divisional Judicial Magistrate, Pupri stating that he was shown to the witnesses before the T.I. Parade and that they knew him from before. 9. On consideration of the evidence on record the trial Court found the appellant guilty u/s. 396 of the Indian Penal Code and convicted and sentenced him thereunder as mentioned above. 10. The question that falls for determination is whether on the facts and circumstances of the case, as revealed from the evidence on record, the order of conviction and sentence passed by the learned trial Court is fit to be maintained. 11. The main thrust of argument of the learned counsel for the appellant is that the appellant has been falsely implicated in this case. The father of the informant was a teacher in the village of the appellant for about 15 years and the appellant was known to them from before and there was no sanctity of the T.I. Parade. 12. In order to appreciate the above contentions of the learned counsel for the appellant, it would be proper to look into the evidence adduced by the prosecution in this case. 13. Sanjiv Kumar Tiwari (PW 5) in his evidence has stated that on 13h/14th March, 1996 at about 11.00 p.m. in the night he was sleeping in his room when he noticed that 4-5 persons entered into his house among whom he identified Nagendra Mandal and Bhola Mandal. They were holding Katta in their hands. They asked others to kill the informant and his wife. He took out bamboo sticks of his mosquito net and chased them. In the process of fleeing away from there, a dacoit gave a blow by iron rod on his head. He has further deposed that after that he closed the door of his courtyard. In the meantime, dacoit from the roof of the house fired at him on account of which he and his wife sustained fire arm injuries. In the process of fleeing away from there, a dacoit gave a blow by iron rod on his head. He has further deposed that after that he closed the door of his courtyard. In the meantime, dacoit from the roof of the house fired at him on account of which he and his wife sustained fire arm injuries. His further evidence is that his mother came to save him and she also received fire arm injuries and that his grand mother was also fired at from the roof of his house who died in the hospital. His evidence also is that the dacoits took away articles from his house. 14. PW 4, the father of the informant, has also stated that on 13.3.1996 in the night he was sleeping with his wife in his house, when at about 1.00 a.m. in the night on the sound of thumping of door, they woke up and saw 5-7 persons inside his Angan. They assaulted him on his head with rod. He further saw 5- 7 persons at the western door of his house armed with lathi and they also assaulted them. He, any how, fled away towards the house of Ram Sanehi Tiwari (PW 7), Shyamdeo Tiwari (PW 3) shouting. In the meantime, he heard three sounds of firing and when he came to his house thereafter, he found his wife, his son, daughter-in-law and mother injured by fire arm injuries. The miscreants looted away his property. He has further stated that the injured persons were taken to Sursand Hospital, where his mother died. 15. PW 3 has stated that on 13.3.1996 at about 1.00 a.m. in the night on.the sound of firing he woke up and saw 3-4 persons at the door of Ram Japan Tiwary (PW 4). His evidence further is that Ram Japan Tiwary thereafter came. His head was fractured and he informed that the dacoity was being committed in his house and thereafter the informant came and he (PW 3) found him injured having injury in his thigh and he (informant) informed that his mother and grand mother had also sustained injuries. His further evidence is that he thereafter went to the house of Ram Japan Tiwary and saw Ram Japans wife and mother injured. They took these injured persons to Sursand Hospital. 16. His further evidence is that he thereafter went to the house of Ram Japan Tiwary and saw Ram Japans wife and mother injured. They took these injured persons to Sursand Hospital. 16. PW 7 has deposed that on the alleged night he heard the sound of firing and was going towards the house of Ram Japan Tiwary when he saw Ram Japan coming injured and he told that dacoity was being committed in his house and soon thereafter his son who had received fire arm injuries in thigh and daughter-in-law came. His evidence also is that the mother of Ram Japan Tiwary died of fire arm injuries caused by the dacoits and the arm of wife of Ram Japan had to be amputated. 17. PW 6, the mother of the informant has supported the factum of dacoity. She has further stated that when her son chased the dacoits, the dacoits went out and a dacoit went to the roof of the house and fired causing injury to her and her mother-in-law and the dacoits looted away their property. Her evidence also is that the injured persons were taken to Sursand Hospital where her mother-in-law died. She has further stated that she was forwarded to Muzaffarpur Hospital where her hand was amputated. 18. PW 1 who was in service of Ram Japan Tiwary has stated that on the alleged night on hulla he woke up. He has further stated that when he went to the Angan he saw Ram Peyari Devi injured. 19. PW 2, a co-villager, has stated that on the alleged night there was dacoity in the house of Ram Japan Tiwary in which the mother, wife, daughter-in-law of Ram Japan Tiwary were injured. 20. The evidence of Dr. Om Prakash Choudhary, which has been brought on record under the provisions of sec. 291 of the Code of Criminal Procedure and his post mortem report (Ext 9) also show that Most. Ram Peyari Devi had received fire arm injuries and had died at about the time of the alleged dacoity on account of the injuries. 21. PW 8, the I.O. has also stated that he visited the place of occurrence which was the house of the informant. His evidence further shows that among other things he found in a room, on cot a big tin box, almirah open and articles scattered. 21. PW 8, the I.O. has also stated that he visited the place of occurrence which was the house of the informant. His evidence further shows that among other things he found in a room, on cot a big tin box, almirah open and articles scattered. He also found blood in large quantity in a verandah and also found two fired cartridges on the roof, a fired cartridge in the Angan and seized them. 22. Thus from the evidence of the above witnesses, it is proved that there was dacoity in the house of the informant on the alleged night in which the grand mother of the informant was killed. 23. The most important question, however, in this appeal is that whether the appellant had taken part in the dacoity. 24. In this connection the evidence of PWs 4, 5 and 7 is relevant. The learned trial Court also on the evidence of these witnesses and the T.I. Parade chart has held the appellant guilty in the case. 25. PW 3 has stated that he had attended the T.I. Parade and identified one dacoit and by seeing the appellant in trial Court he had stated that he was the same person. According to PWs 4 and 7, they had identified two of the dacoits in the T.I. Parade and in Court they identified accused Ram Rekha Thakur (since acquitted) and the appellant as those dacoits. The T.I. chart shows that these three witnesses had identified the appellant in the T.I. Parade. 26. Though the above three witnesses claim to have identified the appellant in the T.I. parade, PWs 3 and 7 are co-villagers of the informant and the fardbeyan (Ext. 2) which is recorded in details and is the earliest version of the occurrence, clearly recites that after the informant was injured, he any how went out of his house and raised alarm on which villagers Shyamdeo Tiwary (PW 3), Ram Sanehi Tiwary (PW 7) and others came but out of fear they could not dare to go near the dacoits. PW 7 has also stated that he wanted to move ahead but his caste-men did not co- operate. Therefore, it is a quite doubtful that these two witnesses identified the appellant during dacoity. PW 7 has also stated that he wanted to move ahead but his caste-men did not co- operate. Therefore, it is a quite doubtful that these two witnesses identified the appellant during dacoity. Again, PW 3 in his evidence has stated that on the sound of firing he woke up and went towards the house of Ram Japan Tiwary and saw 3- 4 persons standing and bulb was burning there. He has further stated that he then turned back and went to his house. Therefore, if the witness had actually seen 3-4 dacoits, it was a fleeting glimpse. The T.I. Parade was held on 16.4.1996 i.e. after more than a month. Hence it is doubtful that the witness could identify any of the dacoits after such a long time in T.I. Parade. So, on this ground also, the identification of the appellant by this witness in T.I. Parade does not appear to be genuine. 27. PW 7 in his evidence has stated as already mentioned that on the sound of firing after waking up when he was going towards the house of Ram Japan Tiwary, he met Ram Japan Tiwary and his son who were injured and also his daughter-in-law. He has further stated that he wanted to move ahead but no body of his caste co-operated with him. So he had also no chance of seeing the dacoits during dacoity. He has, however, further stated that he then from the side of stack of hay identified two dacoits in the light of the bulbs and by seeing Ram Rekha and the appellant he has stated that they were the two persons. But no other witness has corroborated that this witness went near the stack of hay. He has also not stated the part played by the appellant during dacoity. Hence, this evidence of this witness also does not inspire confidence. 28. As regards PW 4, his evidence is that when he woke up he saw 5-7 persons in his Angan armed with lathi, fire arm, rod etc., and one of them hit his head with iron rod. He has stated that the bulb was burning there. His evidence then is that after he was assaulted he came out of his house and outside his house he saw 5-7 persons standing and they also assaulted him. He has stated that the bulb was burning there. His evidence then is that after he was assaulted he came out of his house and outside his house he saw 5-7 persons standing and they also assaulted him. His evidence then is that he identified two dacoits Nagendra Mandal and Bhola Mandal (since acquitted) and that on 16.4.1996 he attended the T.I. Parade and identified two persons and by seeing accused Ram Rekha Thakur and the appellant he has stated that they were the persons whom he had identified in T.I. Parade. 29. But though this witness has claimed to have identified the appellant in T.I. Parade, the evidence of his son, the informant (PW 5) is that he was discharged from hospital on 2.4.1996 and when after discharge he came to his house he knew the name and address of Vijay Sah (appellant). As the witness is the father of PW 5, it can safely be presumed that he had also come to know the name and address of the appellant. The T.I. Parade was held thereafter on 16.4.1996. The evidence of this witness also shows that he was a teacher in the village of the. appellant for 15 years before the occurrence and it is a village of 300 houses. So, when the name and address of the appellant was known to this witness from much before the holding of T.I. Parade, much sanctity cannot be attached on his identification in T.I. Parade, specifically when he served as a teacher in the village of the appellant for 15 years and obviously knew many persons of the village and may also be knowing the appellant. Then the evidence of this witness in examination-in-chief is that he had identified two outsiders (i.e. Ram Rekha Thakur and the appellant) during dacoity. In cross examination he has admitted that he knew Ram Rekha Thakur from before, yet he did not name him prior to T.I. Parade and went to identify him in T.I. Parade. Therefore, the credibility of this witness is not above board. 30. Then the lower Court record shows that the appellant was produced before the Magistrate after his arrest on 20.3.1996 and the T.I. Parade was held on 16.4.1996 and there is no explanation as to why the T.I. Parade was not held earlier. 31. Therefore, the credibility of this witness is not above board. 30. Then the lower Court record shows that the appellant was produced before the Magistrate after his arrest on 20.3.1996 and the T.I. Parade was held on 16.4.1996 and there is no explanation as to why the T.I. Parade was not held earlier. 31. In assessing the value of the T.I. Parade, one of the vital factors is whether the T.i. Parade was held within a reasonable time after the accuseds arrest and if not so, whether there is convincing explanation from the prosecution for the delay in conducting the test identification parade. But in this case though the T.I. Parade was conducted about 27 days after the arrest of the appellant, no explanation for the delay has been given by the prosecution. 32. The appellant has also filed an application (Ext. B) addressed to the Sub-divisional Judicial Magistrate, Pupri that he was shown to the witnesses before the T.I. Parade. No suggestion, of course, has been given to the I.O. or the witnesses in this regard but in view of the delay in holding the T.I. Parade, the probability of the above plea of the appellant cannot be ruled out. 33. To crown all, the Magistrate conducting the T.I. Parade has not been examined in this case. The T.I. chart is, hence, not admissible in evidence. This being so, it is difficult to hold that the witnesses had identified the appellant in the T.I. Parade. In absence of the evidence of the Magistrate, it is also not established that the T.I. Parade was held properly, taking all precautions and the identification of the appellant by the witnesses is reliable. 34. In view of the above discussions, the identification of the appellant by the above three witnesses in the T.I. Parade does not inspire confidence. 35. There, hence, remains the identification of the appellant by the four witnesses viz. PWs 3, 4, 5 and 7 in Court. The identification in Court, ofcourse, is the substantive evidence but I have already shown that there was no occasion for PWs 3 and 7 to identify the appellant during commission of dacoity and that it cannot be ruled out that the appellant was shown to the witnesses before the T.I. Parade. Therefore, on the basis of the identification of the three witnesses viz. Therefore, on the basis of the identification of the three witnesses viz. PWs 3, 4 and 7 in Court it would not be safe to hold that the appellant actually had taken part in the dacoity. 36. As regards PW 5 the informant, he did not attend the T.I. Parade. His evidence is that when he was chasing the dacoits out of his house, the appellant hit his head with iron rod. It is thus apparent that this witness did not get much time to observe as to who had hit him on head. He was also examined in Court on 22.2.1999 i.e. after about three years of the occurrence. So, it is doubtful that he actually remembered the face of the appellant. The trial Court also did not rely on his identification in Court. Besides this, as held by the Hon ble Supreme Court in the case of Malkhan Singh and Ors. V/s. State of Madhya Pradesh, 2003 (2) PCCR 231 "evidence of mere identification of accused person at the trial for the first time is from its very nature inherently of a weak character." Therefore, on the basis of the identification of the appellant by this witness, in Court, it cannot also be held that actually, the appellant took part in the above dacoity. 37. Thus, I find that though the prosecution has been able to prove that there was dacoity in the house of the informant on the alleged night in which his grand mother was murdered, it would not be safe to hold, on the facts, circumstances and evidence of the case, that the appellant had taken part in this dacoity. Atleast he deserves benefit of doubt. 38. In the result, the appeal is allowed. The impugned judgment of conviction and sentence passed against the appellant by the learned trial Court is, hereby set aside and the appellant is acquitted. He is directed to be released from jail custody forthwith if not required in any other case. Aftab Alam, J. 39 I agree.