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2006 DIGILAW 1116 (PAT)

Shankar Poddar v. State Of Bihar

2006-11-24

CHANDRA MOHAN PRASAD

body2006
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 29.8.1983 of the 1st Additional Sessions Judge, Begusarai passed in Sessions Trial No. 28/81/60/81 whereby the appellants have been convicted under Sec. 412 of the Indian Penal Code and sentenced to undergo R.I. for seven years. At the very outset, it is mentioned that the appellants alongwith 11 others were tried under the charge under Sections 395 and 412 of the Indian Penal Code but all the accused including the appellants were acquitted of the charge under Sec.395 of the Indian Penal Code. The appellants and two others namely, Subhash Chandra Singh and Ramji Paswan were convicted under Sec. 412 of the Indian Penal Code. Accused Subhash Chandra Singh had filed Cr. Appeal No. 462/83 but he died during pendency of the appeal, hence, the appeal against him abated. An another accused Ramji Paswan filed this appeal alongwith present appellant Shankar Poddar but Ramji Paswan who was on bail, absconded during pendency of this appeal, hence, this appeal stood dismissed being incompetent against Ramji Paswan vide order dated 4.4.2006. Thereafter, this appeal continued only against the present appellant Shankar Poddar. 2. The fardbeyan of the case was recorded by S.I. M.R Singh at Begusarai P.S. on 10.3.1980 at 2:30 P.M. on the statement of Deobrat Sarkar (P.W.15), Manager of the Bank of Baroda Branch. The prosecution case as per statement of the informant is that on 10.3.1980 at 2.00 P.M. while he was in his chamber in the bank and was engaged in his duty, 8-10 criminals carrying pistols and Garasha entered into the bank, out of whom, two criminals came to him and forcibly took him towards the cashier and forced him to stand there in a corner then the other criminals who were armed with pistol started taking out money from the drawer of the cashier and he collected the money in his Dhoti. Thereafter, the criminals confined him (informant) and the cashier in his (informants) room and thereafter the criminals fled away from the bank. The informant also alleged that the Accountant and some other customers who had came to the bank for their banking transactions had been confined by the criminals in the toilet of the bank. After fleeing of the criminals, the informant and others came out from the confinement. The informant found that the criminals had decamped with Rs. The informant also alleged that the Accountant and some other customers who had came to the bank for their banking transactions had been confined by the criminals in the toilet of the bank. After fleeing of the criminals, the informant and others came out from the confinement. The informant found that the criminals had decamped with Rs. 2,61,624 and 66 paise from the bank. The informant also alleged that the criminals had snatched Rs. 200.00 from Indrabhusan Singh, a customer and Rs. 600/-, some papers and wristwatch had been snatched from Kailash Prasad (P.W.10) and Rs. 800.00 had been snatched from Mithilesh Mishra. The description of the physical features and clothes of the criminals was given in the fardbeyan but any criminal was not named and the F.I.R. was lodged against 8-10 unknown criminals. 3. As many as 24 witnesses were examined by the prosecution. The P.W.1 Ranjit Sen Gupta is an Accountant in the bank and he simply deposed about the occurrence of robbery as committed in the bank and he further deposed that he had not identified any criminal. RW. 2, C.B.B. Kamni who is also an employee of the bank and she says about commission of robbery but she does not say to have identified any criminals. The RW. 3, Uma Kant Singh has deposed that some papers and a jhola had been seized and a seizure list was prepared. The RW. 4, Ram Lochan Singh has been tendered by prosecution and he does not say anything about the occurrence or about the complicity of the appellant in the alleged crime. PW. 5, Shankar Mishra has stated about the recovery of looted money from the house of the appellant. PW. 6, Indrabhusan Singh states about commission of robbery by 10-11 unknown criminals. RW. 7 Ram Prasad Pandit is an employee of the bank and he has also stated about the commission of robbery by unknown criminals. RW. 8, Arun Kumar Thakur is also an employee of the bank who stated about commission of robbery and he further stated the criminals took away Rs. 2,62,0Q0.00 from the bank. He had also not identified any of the criminals. PW 9, Rajendra Singh had deposed about recovery of looted money from the house of the appellant. RW. 8, Arun Kumar Thakur is also an employee of the bank who stated about commission of robbery and he further stated the criminals took away Rs. 2,62,0Q0.00 from the bank. He had also not identified any of the criminals. PW 9, Rajendra Singh had deposed about recovery of looted money from the house of the appellant. P.W.10, Kailash Prasad who had gone to the bank for preparation of a bank draft says about commission of the dacoity but he further deposed that he had not identified any of the criminals. P.W.11, Rajendra Singh, states about commission of the robbery but he says that he not identified any of the criminals. PW. 12, Ram Balak Singh deposed that the co-accused Ramji Paswan had taken out one loaded pistol from wheat crop and had produced the same and it had been seized after preparation of seizure list. This witness says about recovery of loaded pistol from possession of co-accused Ramji Paswan but he does not say anything showing the complicity of the appellant in the occurrence. P.W.13, Awadesh Singh is a hostile witness and he does not say anything to show the complicity of the appellant in the alleged crime. P.W.14, Md. Islam states about recovery of Rs. 6609/-the looted money from the possession of co-accused Subhash Chandra Prasad Singh. But this witness does not say anything to show the appellants complicity in the offence. PW. 15, Devbrat Sarkar who is the informant himself and he had deposed about the occurrence on similar lines as he stated in his fardbeyan and also stated about the robbery of Rs. 2,62,000.00 by the criminals from the bank. He further deposed that he had not identified any of the criminals. The informant did also not identify any of the accused in dock during trial. RW. 16, Ashok Kumar Mandal is a clerk-cum-cashier in the bank and he has stated about commission of dacoity by 8-10 unknown criminals. PW. 17, Shivadhar Ram is formal witness who has proved the writing on the fardbeyan marked (Ext. 5). He also proved the writing on the F.I.R. marked (Ext. 6). RW. 18, Shashi Kumar has been tendered by the prosecution and he does not say anything about the occurrence. PW. 17, Shivadhar Ram is formal witness who has proved the writing on the fardbeyan marked (Ext. 5). He also proved the writing on the F.I.R. marked (Ext. 6). RW. 18, Shashi Kumar has been tendered by the prosecution and he does not say anything about the occurrence. PW 19, Sumant Sharan Modi was the officer-in-charge at the relevant time and he deposed that he had conducted a search of the co-accused Ramji Paswan and had recovered Rs. 1140.00 the looted money which was wrapped in a cloth. The seizure list in this regard was proved as (Ext. 8). Thus this witness says about recovery of looted money from co-accused Ramji Paswan and he says nothing against the appellant. RW. 24, Ram Babu Singh has deposed that he knows nothing about the occurrence. P.W. 21, Uma Kant Singh has been tendered by the prosecution and this witness does not say anything about the occurrence. P.W. 22, Gopal Prasad Ghosh, is the I.O. of the case who deposed that he had recovered Rs. 2700/-, the looted money from the house of the appellant. P.W. 23, Brij Bihari Prasad is also an I.O of this case who had conducted a part of investigation but he does not say about anything showing the complicity of the petitioner in the alleged offence. P.W. 24, Shankar Mishra is a formal witness who has proved the writing and signature on the seizure list as marked (Ext. 8/4). 4. Thus, on perusal of the above prosecution witnesses it appears that only the P.W. 5, P.W. 9 and P.W. 22 have stated the recovery of the looted money from the house of the appellant and the appellant has been convicted on the basis of this evidence. Therefore, the evidence of these witnesses needs to be discussed in detail in order to find out whether the prosecution has been able to prove the charge under Sec. 412 of the Indian Penal Code beyond the shadow of the reasonable doubt or not. 5. Firstly I take up the evidence of P.W. 22 Gopal Prasad, the investigating officer who deposed that the police of Baurani P.S. had apprehended Shankar Poddar (appellant) and had handed over to him (P.W. 22). 5. Firstly I take up the evidence of P.W. 22 Gopal Prasad, the investigating officer who deposed that the police of Baurani P.S. had apprehended Shankar Poddar (appellant) and had handed over to him (P.W. 22). He further deposed that he had recorded the confessional statement of Shankar Poddar (appellant) and on the basis of his confessional statement, a search was made on some places and as result of search, the looted money was recovered. He also deposed that according to the confessional statement of Shankar Poddar (appellant) Rs. 2700.00 was recovered by digging up the ground in the house of the appellant and that the bank slip of Bank of Baroda dated 10.3.1980 had also been recovered attached with money. He says about preparing the seizure list for the recovery of the money. Thus, the I.O. says that he had recorded the confessional statement of the appellant Shankar Poddar and on the basis of his confessional statement the recovery was made. But any confessional statement of the appellant has not been proved on record in support of the claim of this witness that he had recorded the confessional statement of the appellant and the confessional statement led him to the recovery of the looted money. At paragraph no. 4 of the cross-examination, the I.O. states that there are several houses adjoining to the house of the appellant but he has not mentioned the boundary of the appellants house from where he had recovered the looted money. 6. Now I take up the evidence of the witnesses on the point of recovery. 7. P.W. 5, Laxmi Kant Mishra has deposed in examination-in-chief that in his presence police had dug up the ground and had recovered Rs. 2700.00 kept in a box from the ground but this witness continued to say that the recovery was made from another house meaning perhaps not the house of the appellant. In his cross-examination at paragraph no. 2 this witness deposed that the money had been recovered from the grocery shop of Maheshwar Poddar, brother of the appellant and that the shop belongs to Maheshwar Poddar and the father of Maheshwar Prasad and further that the appellant had no concerned with the shop. Thus, according to the evidence of this witness the recovery was not made from the house of the appellant but from the grocery shop of appellants brother Maheshwar Poddar. Thus, according to the evidence of this witness the recovery was not made from the house of the appellant but from the grocery shop of appellants brother Maheshwar Poddar. This witness gave evidence that the recovery was made not from the house of the appellant but grocery shop of the appellants brother Maheshwar Poddar. This witness was declared hostile by prosecution and attention of this witness was drawn towards his previous police statement that he had stated before the I.O. that the recovery had been made from the house of the appellant Shankar Poddar. This witness denied to have made any such statement before police. It has to be mentioned here that the two 1.0s. namely, P.Ws. 22 and 23 have not proved any police statement of P.W.1 towards which his attention was drawn. In the circumstances, there is no ground to even presume, that P.W. 5 had made any police statement supporting the case of prosecution that the recovery of the looted money was made from the house of the appellant. Thus, the evidence of this witness goes adverse to the case of prosecution, therefore, the claim of recovery of looted money from the house of the appellant is discredited. 8. The another witness on the point of recovery of the looted money from the house of the appellant is the P.W. 9 Rajendra Singh and in examination-in-chief this witness says that the recovery of the looted money was made from the house of Shankar Poddar the appellant. But in his cross-examination at paragraph no. 2, he deposed that the house from which the money was recovered belongs to Maheshwar Poddar, the brother of the appellant. 9. He further deposed that the appellant had no concerr. with the nouse from where the recovery was made. He even continued to depose that in a categorical term that nothing had been recovered from the house of ShanKar Poddar (appellant). Thus the evidence of this witness is also not of any help to the prosecution. The I.O. of the case who says to have recovered the money has simply deposed that he had recovered it from the house of the Shankar Poddar (appellant) but he has not given details of the P.O. nor he has mentioned even the boundary of the house of the appellant. 10. The I.O. of the case who says to have recovered the money has simply deposed that he had recovered it from the house of the Shankar Poddar (appellant) but he has not given details of the P.O. nor he has mentioned even the boundary of the house of the appellant. 10. Thus, considering the above evidence which was brought by prosecution to prove the recovery of looted money from the house of the appellant, I find that that the prosecution has not been abler to prove the charge under Sec. 412 beyond the shadow of reasonable doubt. The appellant is entitled to benefit of doubt and, therefore, he is acquitted of the charge. The appellant is also discharged from the liabilities of the bail bond. 11. The appeal is allowed accordingly.