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2007 DIGILAW 1085 (PAT)

Farman Mian v. State Of Bihar

2007-07-07

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal is directed against the judgment and order of 3rd Additional Sessions Judge, Arrah, Bhojpur dated 25.7.92 rendered in Sessions Trial no. 58/ 1986 under which the appellant has been convicted for the offence u/s 395 of the IPC and sentenced to undergo R.I. for five years. However, he has been acquitted of the charge u/s 412 of the IPC. 2. The prosecution case, in short, is that informant Lallan Thakur (PW13) on 4.5.1984 at about 8.30 AM gave his fard bayan before police in Sadar Hospital, Arrah to the effect that on 2.5.1984 after taking supper he was sleeping on the roof of his house along with his son, daughter and others. At about 1 AM he woke up on the alarm raised by his sisters daughter aged about 10-12 years. He saw two persons standing in front of him and when he tried to catch hold one of them, the other person assaulted by rold on his left hand. He then saw 8-10 dacoits on the roof of the house and out of them 4-5 dacoits were armed with big gun and rest were carrying small pistol and Hansuli. He saw few dacoits standing in the courtyard. He identified appellant Farman Mian only. The informant with a view to save his life jumped from the roof of the house and concealed himself in the fodder room. On alarm being raised the villagers assembled and then the dacoits fled away. The informant also heard the sound of firing. While being taken to the hospital the informant learnt that entire articles of the house worth Rs. 50 to 60 thousand has been taken away. He disclosed before the police that he identified the dacoits in torch light. It appears that informant was first taken to the Piro hospital and from there he was brought to Sadar Hospital, Arrah where his fard bayan was recorded. On the basis of the fard bayan of the informant the present case was registered as Tarari (Sikarhatta) PS case no. 63/ 1984 dated 4.5.1984. On submission of charge sheet and commitment trial proceeded with the result that appellant was convicted u/ s 395 of the IPC and sentenced to undergo R.I. for 5 years. He was, however, acquitted of the charge u/s 412 of the IPC. 3. The defence of the appellant was total denial and false implication. 63/ 1984 dated 4.5.1984. On submission of charge sheet and commitment trial proceeded with the result that appellant was convicted u/ s 395 of the IPC and sentenced to undergo R.I. for 5 years. He was, however, acquitted of the charge u/s 412 of the IPC. 3. The defence of the appellant was total denial and false implication. According to appellant one Amantullah Ansari executed a Waqfnama in favour of Idgah Islamian through the appellant. The informant and others were trying to encroach upon the land which disturbed the communal harmony due to which the appellant has been implicated in the case. 4. It appears that in all 14 witnesses were examined on behalf of prosecution in support of the allegation and out of them PW 14, Anwar Ansari is a formal witness who had simply proved formal FIR, fard bayan, T.I. chart of recovered articles and case diary which have been marked as Exhibits- 2, 3, 4 and 5 respectively. PWs 1 and 2 have been declared hostile and cross-examined by the prosecution but there is nothing in their evidence to support the prosecution case against the appellant. PWs 4 and 9 have simply been tendered for evidence by the prosecution. Thus, we have to consider the evidence of PWs 3, 5, 6, 7, 8, 10, 11, 12 and 13 on the factum of the occurrence. 5. PW 13, the informant, has supported the prosecution case and has stated that in the night of 2/3-5-1984 at about 1 AM he was sleeping on the roof of the house. He got up on alarm raised by his sisters daughter. Two of the docoits came near him and one of them assaulted on his left hand by iron rod. He became injured. He saw 8-10 dacoits on the roof of his house. They were armed with small and big gun. Some of them were carrying Hansuli. He identified the appellant in the flash of torch flashed by the dacoits. According to this witness the appellant was armed with small gun. He has further stated that with a view to save his life he concealed himself in the fodder room. He heard sound of firing. According to this witness dacoits took away the articles of the house. The villagers took the informant to Piro Hospital and from there he came to Sadar Hospital, Arrah where his fard bayan was recorded. He has further stated that with a view to save his life he concealed himself in the fodder room. He heard sound of firing. According to this witness dacoits took away the articles of the house. The villagers took the informant to Piro Hospital and from there he came to Sadar Hospital, Arrah where his fard bayan was recorded. The signature of this witness on fard bayan is Ext. 1/1. He has also stated that on hearing nullah Sudarshan Thakur (PW 3), Anant Thakur (PW 1), Ram Kumar Thakur, Mahavir Sah and other villagers arrived. 6. PW 12 Deorajo Devi stated before the court that at the time of alleged occurrence she was in the courtyard. About 8-9 dacoits came in the courtyard with pistol and torch and started looting articles of the house. They took away ornaments, box etc. She identified the appellant in flash of torch light. According to this witness the appellant was armed with pistol. She has further stated that after departure of the dacoits the villagers arrived. 7. PW 11 Rina Devi stated before the court that at the time of alleged occurrence she was sleeping on the roof of the house. She also identified the appellant among the dacoits. She has further stated that appellant was known to her from before. She has also stated that dacoits looted entire articles of the house. 8. PW 10 Kiran Devi was also sleeping on the roof of the house. She also identified the appellant in the flash of torch flashed by the dacoits. Similar is the evidence of PW8 Chandramuna Devi. 9. PW7 Devbrata Thakur after departure of dacoits came to the house of the informant and learnt about the name of appellant from the informant. 10. PW6 Harendra Thakur is son of informant. He has fully supported the prosecution case. He also identified the appellant in the flash of torch flashed by the dacoits. According to this witness appellant was armed with country made pistol. 11. PWs 3 and 5 learnt about the name of appellant from the informant soon after the commission of dacoity. It appears that appellant did not examine any witness in support of his defence. However, he brought on. According to this witness appellant was armed with country made pistol. 11. PWs 3 and 5 learnt about the name of appellant from the informant soon after the commission of dacoity. It appears that appellant did not examine any witness in support of his defence. However, he brought on. record Waqfnama, Ext-A to show that one Amantullah Ansari executed the same in favour of Idgah Islamian of village Nawadih through the present appellant, Farman Mian on 2.1.94 in respect of 8 decimals of land but this document is not enough to show that there was tension between the two community and on account of that the informant falsely implicated the appellant in the case. 12. It was contended that in the evidence of prosecution witnesses it has come that the appellant had not covered his face rather his face was open. On the other hand some of the dacoits had covered their faces. In this context it was pointed out that a known person would not go to commit dacoity without taking care of concealing his face. 13. There is no hard and fast rule that a known person would not go to commit dacoity without taking the usual precaution of covering his face. It depends upon the temperament of a person. When a person is desperate or hardened criminal he can go to commit dacoity without taking the usual precaution of covering his face. It appears from the evidence of the aforesaid witnesses that the appellant has been identified by six witnesses. The evidence of these six witnesses appears to be convincing and reliable one. Nothing has been brought on record to show any enmity between the informants family and the appellant. Witnesses have given explanation as to how they were able to identify the appellant in such a dark night. Moreover, the appellant being a local man was known to the informants family from before. As such the identity of the appellant has been established in this case. 14. It was next contended that PWs 6, 8, 10, 11, 12 and 13 are interested witnesses and therefore much reliance cannot be placed on their testimony. It was further contended that no independent witness was examined to support the prosecution case. As such the identity of the appellant has been established in this case. 14. It was next contended that PWs 6, 8, 10, 11, 12 and 13 are interested witnesses and therefore much reliance cannot be placed on their testimony. It was further contended that no independent witness was examined to support the prosecution case. Before throwing doubt on the evidence of above witnesses it has to be seen whether at the time when the alleged occurrence had taken place it was possible for the prosecution to produce independent outsiders as witnesses and whether the evidence of these witnesses stands corroborated. The dacoity took place during dead of night in a remote village and it would be futile to expect the prosecution to produce independent persons as witnesses. PWs 3 and 5 have stated that soon after the departure of the dacoits they came when the informant disclosed the name of the appellant as one of persons who participated in dacoity. There is consistent evidence of PWs 6, 8, 10,11, 12 and 13 that they identified the appellant in the flash of torch flashed by the dacoits. They have also stated that appellant was armed with small pistol. I find that the evidence of these witnesses is clear, convincing and of an impeachable character. 15. In the aforesaid facts and circumstances, I come to the conclusion that the learned court below has rightly convicted the appellant. The order of conviction and sentence is, therefore, needs no interference. This appeal is, accordingly, dismissed.