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2006 DIGILAW 1036 (PAT)

Sheo Pujan Mahto v. State Of Bihar

2006-11-09

INDU PRABHA SINGH

body2006
Judgment I.P.Singh, J. 1. All the appellants have been convicted under Sec.395 of the Indian Penal Code and sentenced to undergo R.I. for seven years each. 2. The short facts of the case is that in the night of occurrence i.e. 8.10.1986 while the informant, Sakina Khatoon was sleeping with her husband and children in her thatched room and in that room also her father, brother and son-in-law were sleeping. 3. It has been submitted that suddenly 5-6 miscreants came there at the door of her house and got opened the door. Thereafter the informants brother, Anisur Rahman by asking them what is the matter, the miscreants said opened the door and three miscreants entered in her room and three were remaining outside her darwaja.The miscreants demanded key of the box on the point of gun from the informants father and the box was opened and cloths which were kept therein were looted and from another box cash, ornaments and some documents of land purchase were also taken away. 4. It has been submitted that in course of dacoity accused Rudal Yadav who was having country made gun assaulted the informant with Danda. The miscreants were claimed to have been identified in the lantern light and also in the light of torch which was flashed by the accused persons. 5. It has also been stated that the miscreants were known to the informant and to her agnets of the house from before because they were seen by them in course of their visit for sale of cloths in the village. A list of cloths, ornaments, cash and utensils has been given in the fardbeyan which were looted away by the miscreants. 6. The fardbeyan of the informant was recorded by the I.O. P.W. 9 and Police started investigation and- after investigation chargesheet was submitted and cognizance was taken and case was sent up for trial in the Court of Session. The appellants pleaded not guilty and have stated that they have falsely been implicated in this case due to enmity. 7. The prosecution in support of this case examined altogether 10 witnesses. 8. P.W.1 is Mahanth Yadav, the seizure list witness who has been declared hostile. P.W. 2 is Manager Yadav who has been tendered. P.W. 3 is Tara Sah who has also been declared hostile. 9. 7. The prosecution in support of this case examined altogether 10 witnesses. 8. P.W.1 is Mahanth Yadav, the seizure list witness who has been declared hostile. P.W. 2 is Manager Yadav who has been tendered. P.W. 3 is Tara Sah who has also been declared hostile. 9. P.W. 4 is Riyasat Ali who is the husband of the informant has fully supported the case of prosecution and has claimed to have identified all the six accused persons. According to him, till the dacoity continued he did not raise alarm and as such no body came from outside and only after the dacoits left, he raised alarm and the villagers assembled there. He has stated that three dacoits entered into the house and three were standing at the door. They asked for key and one of the dacoits also showed his country made gun. The dacoits asked for key from his wife and she gave the same to the dacoits. The dacoits opened the box and took away cloths, ornaments and other articles kept in the box. He has also stated that the lantern was burning in the house and from the light of the lantern he identified all the dacoits. According to him, the dacoits have taken away the articles worth Rs. 15,000.00 also. He has denied the suggestions of false implication. 10. RW. 5 is Anisur Rahman, brother of the informant. He has supported the case of prosecution. He has also identified all the six dacoits. He has also identified his recovered articles in the Court. He has stated that his house is at the distance of 50 kilo meters from the house where dacoity is alleged to have been taken place and his sisters husband was suffering from Jaundice and was unable to do his business of sale of cloths that is why he was at the house of her sister. He has also denied the false implication. 11. RW. 6, Md. Nijamuddin is son-in-law of the informant. He has also fully supported the case of prosecution. According to him, he was living in his Sasural since 3-4 months before the occurrence because illness of his father-in-law. He has also denied the suggestions of false inplication. 12. P.W. 7 is Abdul Rahman who is the father of the informant has also supported the case of prosecution and identified all the six miscreants. According to him, he was living in his Sasural since 3-4 months before the occurrence because illness of his father-in-law. He has also denied the suggestions of false inplication. 12. P.W. 7 is Abdul Rahman who is the father of the informant has also supported the case of prosecution and identified all the six miscreants. He stated that Police recorded his statement only on the next date and at the time of his statement all other witnesses were also recorded. He has stated that in the night of occurrence a lantern was burning in the house. Dacoits were also lighting the torch. The dacoits asked for key from his daughter and because of fear she gave the key to the dacoits. 13. P.W. 8 is Shakina Khatoon who is the informant of this case has fully supported the case of prosecution as stated in the fardbeyan and has also given in detail as to how the dacoits came to her house and looted away the cloths and other articles. The suggestion was put forth by the defence that the accused persons have falsely been implicated because she had quarrelled with them on the point of collecting dried leaves for fuel from their field but this was denied by her. 14. P.W. 9 is Naresh Prasad Singh who is the Investigating Officer of this case has stated that in the morning at 8.00 a.m. he came to know that a dacoity was committed in the Jamadar Tola and on it he went there and recorded the fardbeyan of informant, Sakina Khatoon (Exhibit-2) and accordingly prepared the formal FIR (Exhibit-3) and also prepared the injury report (Exhibit-4). He made the inspection of place of occurrence and found the articles of the house scattered. According to him, he raided the house of the accused, Ram Nath Yadav, Chhedi Yadav and Jawahar Yadav and recovered a country made gun and live cartridges and also looted cloths etc. and they were arrested by him. He also raided the house of Sheo Pujan Mahto and recovered the looted articles and prepared the seizure list, Exhibit-5 series. He also got identified the recovered articles in T.I. Parade. 15. P.W. 10 is Kalika Prasad who has been tendered. 16. Learned counsel for the appellants has submitted that the witnesses i.e. P.Ws. 4 to 8 have supported the factum of occurrence, are related to the informant. He also got identified the recovered articles in T.I. Parade. 15. P.W. 10 is Kalika Prasad who has been tendered. 16. Learned counsel for the appellants has submitted that the witnesses i.e. P.Ws. 4 to 8 have supported the factum of occurrence, are related to the informant. P.W. 1 the seizure list witness and RW. 3 have not supported the case of prosecution and have been declared hostile. Thus, the case is fully based on the evidence of close relations of the informant. The means of identification which was lantern has not been produced in the Court. The identification should not be relied on. There was previous enmity between the informant and the appellants with regard to land and also collection of dried leaves from the field of appellants as such they have falsely been implicated because of enmity. On the other hand, learned counsel for the State, Mr. Dilip Kumar Sinha has stated that all the witnesses have consistently supported the factum of dacoity. He has also stated that the stolen articles were recovered from the house of the appellants which were identified and were returned back to the informant. So far the acquittal under Sec. 412 is concerned and the appellants were discharged under Section 412 on the technical ground as the Magistrate who conducted the T.I. Parade was not examined. In this case the witness RW. 4 Riyasat Ali who is the husband of the informant. RW. 5 Anisur Rahman brother of the informant, RW. 6, Md. Nijamuddin is son-in-law and RW. 7, Abdul Rahman is father of the informant as well as RW. 8, Shakina Khatoon the informant are the competent witnesses as they were in the house during the commission of dacoity. They have claimed to have seen the commission of dacoity and also have identified all the appellants as they were known to them from before. 17. P.Ws. 4 and 5 have also identified the stolen articles which were put in T.I. Parade. Only because they are closely related to the informant their evidence cannot be discarded. 18. Learned counsel has also submitted that since the Court has not convicted the appellants under Sec. 412 IPC, it should not have convicted the appellants under Sec.395 IPC as well. 4 and 5 have also identified the stolen articles which were put in T.I. Parade. Only because they are closely related to the informant their evidence cannot be discarded. 18. Learned counsel has also submitted that since the Court has not convicted the appellants under Sec. 412 IPC, it should not have convicted the appellants under Sec.395 IPC as well. But it is clear from the judgment itself that the acquittal under Sec. 412 IPC was only on technical reason that the Magistrate who held the T.I. Parade could not be examined and there was no sufficient evidence to prove that the recovered articles were stolen articles and were recovered from the house of the appellants. However, about the commission of dacoity the Court found that there were sufficient evidence and prosecution has proved its case beyond reasonable doubt. As far as the false implication is concerned the suggestion was put forth about false implication which was denied and this could hardly be a reason for false implication. That apart, the deposition of witnesses is very vivid and specific on the point of looting and taking away the cloths from the house of the informant. 19. The submission of the learned counsel that the lantern was not produced in the Court the prosecution is not fatal when there was sufficient evidence and specially when appellants were known persons and family members used to purchase the cloths from the appellant. However, the learned counsel for the appellants has submitted that the occurrence is of 1986 i.e. about two decades earlier and they have been amply harassed and punished during the pendency of this period. As such some lenient view may be taken while awarding the sentence to the . appellants. It has also been submitted that the appellants are the first offender and they are in their old age and there is no criminal antecedeht against them. 20. Considering the submission of the learned counsel, I am of the view that the ends of justice will be met if the sentences of seven years awarded by the Court below to the appellants is reduced to four years. With this modification and observation this appeal is dismissed.