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2007 DIGILAW 1560 (PAT)

Doctor Nonia v. State Of Bihar

2007-09-21

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment CHANDRAMAULI KR.PRASAD, J. 1. Mahendra Nonia and Doctor Nonia, aggrieved by the judgment and order dated 30th of May, 2002 passed by the Additional Sessions Judge, Fast Track Court No. Illrd, Bhojpur, Ara in Sessions Trial No. 397 of 1981/35 of 2002 holding them guilty of offence under Sec. 396 of the Indian Penal Code and inflicting sentence of imprisonment for life, have preferred this appeal. 2. During the pendency of the appeal, Mahendra Nonia died and, as such, appeal preferred by him has abated and this appeal is confined to appellant Doctor Nonia only. 3. According to the fard beyan given by P.W. 4 Ram Narayan Singh on 23.7.1980 at about 3 P.M. before the SubInspector of Police at Piro Police Station, prosecution story is that in the night between 22nd and 23rd of July, 1980, he was sleeping in the female-wing of the house, whereas his father Sheo Pujan Singh was sleeping at the Dalan of the house. At about 10 clock in the night he woke up on hearing the alarm of his mother Salhatiya Devi (P.W. 1) and saw her in the courtyard screaming being assaulted by two dacoits from the butt of the gun. His two sisters, namely Binda Kumari (P.W. 3) and Chandkeshari (P.W. 2) also woke up. Dacoits disclosed that they are facing the consequences of having picked up quarrel with Bihari and further enquiring as to where the sale-price of the ox sold has been kept. According to the informant, two of the dacoits, who were armed with bhala and pistol came near him and also enquired about the money. Dacoits intended to assault him but his mother came and shielded him. Two of the dacoits started breaking the earthen pot looking for the money, whereas 6-7 dacoits were at the Dalan of the house and assaulting his father, whereas some of them were in the gali. In the torch light of the dacoits themselves, informant identified Mahendra Nonia as also Doctor Nonia of nearby village Sanehi Tola. All the dacoits left the place from the exit door and closed the same from out side. At that time his father started screaming that he is being killed. On the alarm raised by the family members villagers came, opened the door and only thereafter they came out and found his father dead with injury. According to the informant, utensils as also Rs. At that time his father started screaming that he is being killed. On the alarm raised by the family members villagers came, opened the door and only thereafter they came out and found his father dead with injury. According to the informant, utensils as also Rs. 1100/- and clothes were removed by the dacoits during the course of dacoity. 4. On the basis of the aforesaid report, case was registered against Mahendra Nonia and Doctor Nonia besides 8 to 10 unknown dacoits. After usual investigation, police submitted charge sheet against eight accused persons including the aforesaid accused. They were ultimately committed to the court of Sessions and charged for committing the murder of Sheo Pujan Singh in furtherance of their common intention punishable under Sec. 302/34 of the Indian Penal Code as also for committing the offence of dacoity with murder punishable under Sec. 396 of the Indian Penal Code. 5. All the accused persons pleaded not guilty and claimed to be tried. 6. Prosecution in support of its case examined altogether six witnesses. P.W. 1 Salhatiya Devi is the widow of the deceased, whereas P.W. 2 Chandkeshari and P.W. 3 Binda Kumari are their daughters. P.W. 4 Ram Narayan Singh is the son of the deceased and informant of this case. P.W. 5 Jawahir Sah has been examined to corroborate the case of the prosecution. P.W. 6 Brij Nandan Singh is a formal witness. 7. Defence of the appellant is denial simplicitor and from the trend of the cross-examination, defence of the appellant seem to be that the prosecution party had enmity with Bihari Singh and he being associated with him has been falsely implicated in the case. However, no defence witness has been examined. 8. The court below on appraisal of evidence came to the conclusion that the charge under Sec. 302 of the Indian Penal Code shall not stand against any of the eight accused persons and also gave benefit of doubt, so far as the charge under Sec. 396 of the Indian Penal Code to other accused persons excepting Doctor Nonia and Mahendra Nonia. 9. P.W. 1 Salhatiya Devi is the widow of the deceased and according to her she alongwith her son P.W. 4 Ram Narayan Singh and daughters P.W. 2 Chandkeshwari and P.W. 3 Binda Kumari were sleeping inside the house, whereas her husband was sleeping in the Dalan. 9. P.W. 1 Salhatiya Devi is the widow of the deceased and according to her she alongwith her son P.W. 4 Ram Narayan Singh and daughters P.W. 2 Chandkeshwari and P.W. 3 Binda Kumari were sleeping inside the house, whereas her husband was sleeping in the Dalan. She woke up due to the sound and torch light and found the dacoits in her courtyard. They came near her and enquired as to where she had kept the money which she has received on account of sale of the ox. They also with assaulted her by fists and slaps as also the butt of the gun. According to her, the dacoits started beating her son Ram Narayan Singh (P.W. 4) also but she shielded him. Dacoits were stating that she is facing the consequence for quarrelling with Bihari Singh and were saving that the ox be removed. From amongst the dacoits, this witness identified Doctor Nonia and Mahendra Nonia, besides Bihari Singh. According to her, her husband had quarrel with said Bihari Singh three days prior to the occurrence on the question of sharing of water. She denied the suggestion that in fact no dacoity had taken place and on account of enmity accused persons have been falsely implicated. 10. It is relevant here to state that on 5th of May, 1988 when the evidence of P.W. 2 Chandkeshari was recorded, she disclosed her age to be 16 years and the court also assessed her age to be the same. The age of P.W. 3 Binda Kumari on the date of examination i.e. 6th of May, 1988 was assessed by the court as 18 years and she also disclosed her age to be so. 11. P.W. 2 Chandkeshari and P.W. 3 Binda Kumari are the daughters of the deceased and according to their evidence they were sleeping inside the house alongwith their mother Salhatiya Devi (P.W. 1) and brother Ram Narayan Singh (P.W. 4). According to them they woke up on the sound of screaming of their mother, who was being assaulted by the dacoits and found 6 to 7 dacoits in the courtyard assaulting their mother. According to them, dacoits attempted to assault their brother Ram Narayan Singh also but he was shielded by their mother. According to them, from the torch light of the dacoits themselves, they identified Mahendra Nonia, Doctor Nonia and Bihari Singh. According to them, dacoits attempted to assault their brother Ram Narayan Singh also but he was shielded by their mother. According to them, from the torch light of the dacoits themselves, they identified Mahendra Nonia, Doctor Nonia and Bihari Singh. According to these witnesses, dacoits looted clothes, utensils and Rs. 1100/- and fled away from the house after closing the exit door from out side. When dacoits fled away their father screamed that he has lost his life (Bap re jan gayil). After sometimes villagers came, opened the door and when they came out found the dead body of their father and his neck was cut. P.W. 2 in her cross-examination has stated that Doctor Nonia and Mahendra Nonia are supporters of Bihari Singh. 12. P.W. 4 Ram Narayan Singh is the son of the deceased and claimed to be 25 years of age on 26th of May, 1988 when he was examined in the court but the court assessed his age as 20 years. He has stated in his evidence that he, his two sisters (P.W. 2 and P.W. 3) and mother (P.W. 1) were sleeping in the female-wing (Janani Kita) of the house, whereas his father was sleeping in the Dalan. He woke up hearing screams of his mother and found two dacoits assaulting her and enquiring as to where she had kept the purchase-price of the ox. Two of the dacoits, according to this witness, came near him and on enquiry as to who they are, they threatened to kill him. They also enquired as to where the money has been kept. Dacoits also started assaulting him but he was covered by his mother. There were 6-7 dacoits in the courtyard who broke the earthen pots looking for money. Six-seven dacoits were outside the house and were assaulting his father. From amongst the dacoits, according to this witness, he identified Mahendra Nonia and Doctor Nonia in their torch light. 13. After looting the cash, utensils and clothes, dacoits left the place and closed the exit door from out side. While the dacoits were fleeing away, he heard the scream of his father and on their alarm the villagers collected and opened the door. When they came out, they found his dead body lying on the cot and his hands tied and neck slit with sharp weapon. While the dacoits were fleeing away, he heard the scream of his father and on their alarm the villagers collected and opened the door. When they came out, they found his dead body lying on the cot and his hands tied and neck slit with sharp weapon. According to this witness, he went to the Police Station where he gave his fard beyan before the Sub-Inspector of Police which was recorded by him and finding it to be correct signed the same. In the cross-examination he had admitted that only one dacoit had covered his face. He has further admitted in his cross-examination that the accused persons are agriculturists and on his alarm villagers collected, but none of them chased the dacoits. 14. P.W. 5 Jawahir Saw has stated in his evidence that his house is situated near the house of the informant and on his hulla went there but the accused persons had left the place. He found the informants father Sheo Pujan Singh dead on the Verandah and his wife was weeping saying that Doctor Nonia and Mahendra Nonia had killed her husband. 15. Mr. Ashok Kumar Sinha, Senior Advocate, appears on behalf of the appellant, whereas State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor. 16. Mr. Sinha, contends that according to the prosecution witnesses, one of the dacoits had concealed his face and it is unlikely that this appellant who was known to the witnesses from before would go to commit dacoity without concealing his face. He submits that excepting P.W. 1 Salhatiya Devi, P.W. 2 Chandkeshari, P.W. 3 Binda Kumari and P.W. 4 Ram Narayan Singh are aged about 8, 10 and 12 years respectively at the time of occurrence and lacks capacity to recognise dacoits in the dead of night. 17. Mr. Prasad, however, submits that the witnesses have attained the age of discretion and all of them have identified the appellant amongst the dacoits. He also points out that merely the fact that this appellant had not concealed his face itself shall not render the case of the prosecution improbable in the face of the identification by four witnesses. 18. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Sinha. True it is that P.W. 2 Chandkeshari. He also points out that merely the fact that this appellant had not concealed his face itself shall not render the case of the prosecution improbable in the face of the identification by four witnesses. 18. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Sinha. True it is that P.W. 2 Chandkeshari. P.W. 3 Binda Kumari and P.W. 4 Ram Narayan Singh were aged about 8, 10 and 12 years respectively but it cannot be said that at the aforesaid age one does not have the capacity to identify known person. They are the inmates of the house and the appellant, a resident of nearby his village was known to them from before. Occurrence has taken place at 1 Oclock in the night between 22nd and 23rd of July, 1980 and the fard beyan was given two hours after the occurrence. Name of this appellant finds place in the first information report. The informant at the time when he gave the report was aged about 12 years and hence not expected to manipulate things within such a short time. Prompt reporting of first Information report also lends support to the case of the prosecution. 19. Mr. Sinha, then contends that besides appellant Doctor Nonia and Mahendra Nonia (since dead) accused Bihari Singh was also identified from amongst the dacoits by all the four witnesses and on same evidence said Bihari Singh has been acquitted and given the benefit of doubt, but the appellant has been convicted. He submits that when Bihari Singh has been given the benefit of doubt, this appellant also deserves to be given the same benefit. 20. Mr. Prasad, however, submits that the whole assumption of the appellant that on same evidence he has been convicted but Bihari Singh has been acquitted is absolutely erroneous. 21. I do not find any substance in the submission of Mr. Sinha. The trial court while granting benefit of doubt to Bihari Singh had found his case to be entirely different. It had pointed out that although the witnesses during the trial had named said Bihari Singh, but his name did not find place in the first information report. 21. I do not find any substance in the submission of Mr. Sinha. The trial court while granting benefit of doubt to Bihari Singh had found his case to be entirely different. It had pointed out that although the witnesses during the trial had named said Bihari Singh, but his name did not find place in the first information report. The court below took into consideration that Bihari Singh was known to the witnesses from before and in fact it had come in their evidence that he had quarrelled with the deceased a couple of days prior to the occurrence. In the face of the aforesaid, the court below found omission of his name in the first information report to be vital and accordingly given him the benefit of doubt. Thus it cannot be said that on same evidence this appellant has been convicted and said Bihari Singh acquitted and accordingly I reject this submission of the learned Counsel. 22. Mr. Sinha, submits that according to the prosecution witnesses Ram Balak and Kedar Singh came at the place of occurrence immediately after the incident but they have not been examined. According to him, this creates doubt to the case of the prosecution. 23. I do not find any substance in the submission of Mr. Sinha. It is not the case of the prosecution that the aforesaid persons are witness to the crime. As such their non-examination itself shall not create any doubt. 24. Mr. Sinha, submits that the appellant is a resident of nearby village and thus financial condition of the informant and his family would have been well known to him. He points out that according to the first information report itself cash and property worth Rs. 1500/- have only been looted. He submits that it is unlikely that for such small financial gain, the appellant would had committed dacoity. 25. . I do not find any substance in the submission of the learned Counsel. Case of the prosecution cannot be rejected only on the ground that property looted is only worth Rs. 1500/-. It has come in the evidence that the dacoits were enquiring about the money which the informants family had got for sale of the ox. All the eyewitnesses having supported the factum of dacoity, the value of the property looted looses its significance. 26. Mr. 1500/-. It has come in the evidence that the dacoits were enquiring about the money which the informants family had got for sale of the ox. All the eyewitnesses having supported the factum of dacoity, the value of the property looted looses its significance. 26. Mr. Sinha, submits that in face of the acquittal of six out of eight accused put on trial, the conviction of this appellant under Sec. 396 of the Indian Penal Code is not fit to be sustained. In this connection, he has drawn our attention to the charges framed against the accused persons and submits that only eight known persons were charged for offence under Section 396 of the Indian Penai Code and the charge did not indicate that those known persons were accompanied by any other unknown person and six of them having been acquitted, two of them cannot be convicted for offence under Sec. 396 of the Indian Penal Code. 27. Mr. Prasad, however, submits that mere defect in charge shall not be sufficient to acquit them of charge under Section 396 of the Indian Penal Code. He points out that death had taken place and so there is no difficulty in altering the conviction of the appellant under Section 302 of the Indian Penal Code. In support of his submission, he has placed reliance on a Division Bench Judgment of this Court in the case of Shatrughan Rabidas Vs. State of Bihar [2002(3) PUR 357], and our attention has been drawn to the following passage from paragraph 8 of the judgment, which reads as follows : "Though much stress was laid about omission to frame charge about participation of other associates of the appellants, that argument too was bereft of legal value and reliance on this score can be placed on a decision of the Apex Court of the land reported in AIR 1957 SC 320 (Shyam Behari Vs. State of Uttar Pradesh) in which observations were made by the Apex Court that even if the accused could not be convicted under sec. 396 IPC, he could be convicted under sec. 302 IPC, murder being one of the ingredients under sec. 396 IPC, as the accused knew from the charge, which was framed against him (emphasis added) that he was sought to be made responsible not only for commission of dacoity but also for commission of murder while committing such dacoity." 28. 396 IPC, he could be convicted under sec. 302 IPC, murder being one of the ingredients under sec. 396 IPC, as the accused knew from the charge, which was framed against him (emphasis added) that he was sought to be made responsible not only for commission of dacoity but also for commission of murder while committing such dacoity." 28. Mr. Prasad further points out that all the accused persons were charged also for offence under Sec. 302/34 of the Indian Penal Code, but the court below having neither acquitted them nor convicted them of the said charge, nothing prevents this Court from convicting the appellant under Sec. 302 of the Indian Penal Code. 29. I do not find any substance in the submission of Mr. Prasad. There is no difficulty in accepting the broad proposition that an accused may not be convicted under Sec. 396 of the Indian Penal Code but can be convicted under Section 302 of the Indian Penal Code on the premise that murder is one of the ingredient under Sec. 396 of the Indian Penal Code, but in the present case appellant was charged for offence under Section 302/34 of the Indian Penal Code but has not been found guilty under that. Mr. Prasad is not right when he submits that no finding either of acquittal or conviction has been recorded by the trial court so far as the charge under Sec. 302/34 of the Indian Penal Code is concerned. The expression "the non-examination of I.O. and doctor will have the effect that the charge under Section 302 IPC will not stand but it will not be effect the charge under Sec. 396 IPC" clearly goes to indicate that the court below had acquitted appellant of the charge under Sec. 302/34 of the Indian Penal Code, although no specific order to that effect has been passed. 30. From the aforesaid, I do not have the slightest hesitation in concluding that the appellant has been acquitted of the charge under Sec. 302/34 of the Indian Penal Code and once I hold so, the State having not preferred any appeal against his acquittal under Sec. 302/34 of the Indian Penal Code, in an appeal preferred by the appellant, his conviction cannot be altered to Sec. 302 of the Indian Penal Code. Accordingly I reject this submission of Mr. Prasad. 31. Accordingly I reject this submission of Mr. Prasad. 31. As stated earlier appellant beside another convict, namely, Mahendra Nonia and six other accused persons were charged for offence under Sec. 396 of the Indian Penal Code and six out of eight have been acquitted. Further as stated earlier eight accused persons were not charged with such number of other accused persons so as to make the number five or more despite acquittal of six accused persons. In the face of it, the question which falls for determination is as to whether only two persons can be convicted for offence under Sec. 396 of the Indian Penal Code. Dacoity is one of the ingredients for the offence under Section 396 of the Indian Penal Code and offence under that would fall within its ambit only when dacoity and murder are committed. For an offence of dacoity assembly of five or more persons is sine qua non. On account of acquittal of six accused persons and in the absence of any charge that known accused persons were accompanied with such number of unknown accused persons so as to make the number of the assembly to be five or more. I am of the opinion that this appellant can not be held guilty of offence under Sec. 396 of the Indian Penal Code. 32. Reference in this connection can be made to a decision of the Supreme Court in the case of Ram Shankar Singh and others Vs. State of Uttar Pradesh [AIR 1956 Supreme Court 441] in which it has been held as follows : "The charge framed against the six persons placed on trial did not indicate that those six persons along with other unknown persons had committed dacoity. The charge was that the six persons placed on trial were the persons who had committed dacoity. 33. On the findings arrived at by the High Court resulting in the acquittal of three out of the six persons jointly tried, we are left only with the three appellants as the persons concerned with the crime. It is possible to direct a retrial on a proper charge being framed so as to give sufficient notice to the accused persons that more than five persons were actually concerned with the alleged crime. It is possible to direct a retrial on a proper charge being framed so as to give sufficient notice to the accused persons that more than five persons were actually concerned with the alleged crime. This aspect of the matter could not have been discussed by the trial court in the view it took of the evidence." 34. Reference can also be made to another decision of the Supreme Court in the case of Ram Lakhan Vs. State of U.P. [AIR 1983 Supreme Court. 352], which reads as follows : "The position now is that out of 9 persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under sec. 395 can be made out there must be an assembly of 5 or more persons. On the findings of the Courts below it is manifest that only one person is now left. In these circumstances therefore the appellant cannot be convicted for an offence under Sec. 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence. For these reasons therefore the conviction and sentence imposed on the appellant are set aside and he is acquitted of offence charged under Sec. 395." 35. To put the record straight, Mr. Prasad had pointed out that according to the witnesses besides the accused persons put on trial there were 10-15 other dacoits and, as such, merely on acquittal of six persons out of the eight persons charged, the accused persons involved in the crime cannot be said to be less than five. 36. I do not find any substance in the submission of the learned Counsel. I am of the opinion that in the absence of number of unknown accused being indicated in the charge, the evidence of such numbers of accused persons participating in the crime even if appearing in the evidence shall not be decisive. 37. Having held that the appellants conviction under Sec. 396 of the Indian Penal Code cannot be sustained on the charges framed, one of the options available is to order retiral. Occurrence has taken place as back as in the year 1980 and at such a distance of time I do not think it prudent to direct for retiral. 37. Having held that the appellants conviction under Sec. 396 of the Indian Penal Code cannot be sustained on the charges framed, one of the options available is to order retiral. Occurrence has taken place as back as in the year 1980 and at such a distance of time I do not think it prudent to direct for retiral. However, I am of the opinion that the sole appellant can be convicted of the lessor offence, if there is evidence to show that he had committed act of theft and used violence while committing theft. There is over whelming evidence on record that this appellant abused and assaulted P.W. 1 Salhatiya Devi. The material on record available against this appellant clearly shows that he had committed t6heft and while doing so used violence. 38. Accordingly, I am of the opinion that the evidence on record clearly proves the case of robbery punishable under Sec. 392 of the Indian Penal Code. 39. In the result, the appeal is partly allowed. Conviction and sentence of the appellant under Sec. 396 of the Indian Penal Code is set aside and he is altered to Sec. 392 of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for ten years.