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2007 DIGILAW 162 (JHR)

Bhairo Thakur v. State Of Bihar (Now Jharkhand)

2007-03-13

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. The appellant has preferred this appeal against the judgment and order dated 13.10.1999 passed by IIIrd Additional Sessions Judge, Deoghar in Sessions Case No. 184 of 1998 whereby and whereunder the appellant stands convicted under Section 395 of the Indian Penal Code and sentenced to undergo R.I. for a period of seven years and further to pay a fine of Rs. 1000/- in default whereof to undergo R.I. for a further period of two months. 2. Brief facts leading to this appeal are that in the night between 24/25 April, 1998 the informant along with his family members was preparing to retire after function in his house when all of sudden fifteen persons overpowered his son and made forced entry in the house. Further stated the culprits assaulted the house inmates and looted valuables including ornaments from the house. The informant further asserted that the said culprits have committed similar dacoity in the house of Jagdishwar Tiwari and Chandradev Rai of same village. When the villagers chased, they threw bombs and managed to escape. The informant claimed that the present appellant was identified by the victims who used to serve as barber in the area. 3. The Kunda police arrived at the place of occurrence and recorded the statement of the informant in presence of other victims Jagdishwar Tiwari and Chandradev Rai and registered Kunda P.S. Case No. 98 of 1998 under Sections 395 and 397 of the Indian Penal Code. The police acted promptly and arrested three persons including the appellant who were put on T.I. parade and identified by the witnesses. The police finally submitted charge-sheet against three persons Ashok Das, Khailu Rai and the appellant Bhairo Thakur. The learned trial Court after evaluating the evidence on record found and held the appellant guilty under Section 395 of the Indian Penal Code while acquitted Khailu Rai and Ashok Das of the charges. The appellant has been sentenced to serve R.I. for seven years and fine of Rs. 1000/-. Therefore the present appeal. 4. In this appeal the conviction has been challenged mainly on the ground that when two of the co-accused were acquitted, the learned trial Court has committed an error of record to find and hold the appellant guilty. The appellant has been sentenced to serve R.I. for seven years and fine of Rs. 1000/-. Therefore the present appeal. 4. In this appeal the conviction has been challenged mainly on the ground that when two of the co-accused were acquitted, the learned trial Court has committed an error of record to find and hold the appellant guilty. The learned Amicus curiae further pointed out that the identity of the appellant is doubtful, as there was no light at the alleged time of occurrence. The identification of the appellant was further assailed on the ground that the appellant was kept in the lock up and witnesses made to identify him. As such, the sanctity of the identification relied by the learned Court below is wholly misconceived. It was pointed out that nothing has been recovered from his possession. The learned Amicus curiae further pointed out that the appellant has remained in custody for more than 18 months before he was released on bail by this Court. Therefore, lenient view may be taken. 5. I have gone through the material on record to weigh the submission on behalf of the appellant. The prosecution is based upon an incident in which 3-4 houses of village Thadidhulampur district Deoghar was raided by nearly fifteen dacoits. The factum of dacoity has been proved beyond doubt. According to the informant some persons identified to have seen them in the area. This appellant is said to have been identified by wife of the informant as she has seen him serving as barber in Hat. The informant has given details of the dress worn by them at the time of the occurrence. P.W. 2, the informant Dulal Chandra Das, P.W, 1 Shiva Das, P.W. 4 Jitan Kumar Das have supported the prosecution version. According to P.W. 1 Smt. Shiva Das, she identified the appellant Bhairo Thakur in the Court and claimed that he used to tonce hair and beard in his area. She admitted that she has identified the appellant in Kunda police station and jail also. She has further supported the details given in fardbeyan. P.W. 3 Jagdishwar Tiwari, P.W. 5 Chandreshwari Devi wife of P.W. 3 have claimed to identify this appellant and alleged that he has taken part in the dacoity. However, he has admitted in cross-examination vide para 10 that he did not identify the appellant Bhairo Thakur from before. She has further supported the details given in fardbeyan. P.W. 3 Jagdishwar Tiwari, P.W. 5 Chandreshwari Devi wife of P.W. 3 have claimed to identify this appellant and alleged that he has taken part in the dacoity. However, he has admitted in cross-examination vide para 10 that he did not identify the appellant Bhairo Thakur from before. P.W. 5 Chandreshwari Devi has asserted that she identify the appellant in the T.I. parade and further in the trial Court. She has specifically mentioned in cross-examination that the appellant has snatched earring from her ear. P.W. 6 Chandra Dev Rai did not claim to identify any one P.W. 7 is the Judicial Magistrate in whose presence T.I.P. was held and proved the T.I.P. chart as Ext. 2 P.W. 6 has claimed in his statement under Section 313, Cr.P.C. that witnesses were made to identify in the police lock up. However, this question was not put to the I.O. in his cross- examination that the witnesses were made to identify him in the police lock up. 6. The learned trial Court has discussed all these aspects in the impugned judgment vide paras 13, 14, 15 and 16. I further find that the learned trial Court has considered the charges made regarding identification of the appellant in paras 24, 25 of the impugned judgment and believed the evidence of P.Ws. 1 and 5. Accordingly, has convicted the appellant for offences under Section 395 of the Indian Penal Code. After going through the impugned judgment and evidence available on the record, I find no reason to disagree with the view taken by the learned trial Court. Since the appellant was identified by two of the victims, the female witnesses whose houses were ransacked by the dacoits including the appellant, I find that the conviction of the appellant deserves to be confirmed and the present appeal has got no merit in it and deserves to dismissed. 7. In the result, this appeal is dismissed and the order and judgment of conviction of the appellant along with sentence is hereby confirmed. 8. The appellant is on bail, therefore, his ball bonds are cancelled and he is directed to surrender before the Court below within three weeks to serve out the remaining period of sentence, failing which the learned Court below will take all coercive steps for his arrest.