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2007 DIGILAW 386 (JHR)

Rabindra Munda v. State Of Bihar (Now Jharkhand)

2007-05-03

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2007
JUDGMENT 1. Sole appellant Rabindra Munda stands convicted for the offence punishable under Section 396 of the Indian Penal Code and sentenced to serve rigorous imprisonment for life, by the 2nd Additional Sessions Judge, Hazaribagh in Sessions Trial No. 211 of 1996. 2. Brief facts leading to this appeal are that in the evening of October 8, 1995 in between 5.30 to 6.30 p.m., informant Safique Ansari was going along with deceased on Trekker bearing Registration No. BEM 1300 from Petarwar to Maganpur. The informant was the Khalasi and driver of the said vehicle in which only three passengers were travelling. According to informant, as soon as the vehicle reached near Chopadar valley. they found some of the vehicles were standing on the road from before so the driver stopped the vehicle there, Further stated, as soon as the vehicle stopped, three armed persons came there and demanded money from them. According to the informant, one of the assailants put a revolver on the chest of the driver while another assailant put the dagger on him and demanded money immediately. The informant tried to pull out Rs. 250/-from his pocket to hand over the same to the assailants, but the appellant, who was carrying the dagger, snatched the money for him. In the meantime, the assailants carrying revolver shot the driver on his chest, resulting in death of the deceased. The third assailant was threatening the passengers to blow them with bomb. He further asserted that at the same time, other assailants were robbing passengers of other vehicles one by one. After this occurrence, all of them fled away. 3. Gola Police arrived at the spot within twenty minutes, to whom this statement was given. The police started investigation, registered Gola Police Station Case No. 47 of 1995 under Section 395/397 of the Indian Penal Code, prepared inquest report in presence of the witnesses. During investigation, the appellant was arrested and put on test identification parade in Hazaribagh Jail, and identified by the informant. The trial was committed and the appellant has been charged under Section 396 of the Indian Penal Code along with five not named persons on 7.4.1997, to which he pleaded not guilty and claimed false prosecution. During investigation, the appellant was arrested and put on test identification parade in Hazaribagh Jail, and identified by the informant. The trial was committed and the appellant has been charged under Section 396 of the Indian Penal Code along with five not named persons on 7.4.1997, to which he pleaded not guilty and claimed false prosecution. The learned trial Court believing the informant and the identification of the appellant, found and held him guilty under Section 396 of the Indian Penal Code and sentenced him to serve rigorous imprisonment for life. 4. The present appeal has been preferred mainly on the grounds that the prosecution has failed to prove the complicity of the petitioner in the alleged occurrence. It is also asserted that on single identification of the appellant, the conviction is not proper. In this memo of appeal, the test identification parade has been challenged not held in accordance with law. Mr. A.K. Sahani. learned Counsel for the appellant, submitted that in view of the non- identification by two passengers present at the time of occurrence, the conviction is fit to be set aside. It was also asserted that the First Information Report was lodged after much delay and one of the investigating officers has not been examined by the prosecution as well as some of the charge- sheeted witnesses remaining absent, the entire prosecution case should be disbelieved. 5. We have gone through the material on records to assess the submissions made by Mr. Sahani. This is a case of highway robbery in which many passengers travelling in various vehicle were looted in the evening of 8.10.1995. The number of assailants robbing the passengers was definitely more than three because other vehicles being looted at that time. The appellant along with two others has started looting the vehicle in question in which the informant was working as Khalasi. The defence during cross-examination has suggested the informant (P.W. 1) that he was neither Khalasi of the vehicle and being examined by the prosecution as a tutored witness. This version stands falsified with the fardbeyan recorded by the police of this witness immediately at 6.45 p.m. same day. He was also injured during this loot. The dead body was brought to Gola Police Station and inquest report prepared next day in the morning in presence of P.W. 5. Therefore, the suggestion appears to be afterthought. 6. This version stands falsified with the fardbeyan recorded by the police of this witness immediately at 6.45 p.m. same day. He was also injured during this loot. The dead body was brought to Gola Police Station and inquest report prepared next day in the morning in presence of P.W. 5. Therefore, the suggestion appears to be afterthought. 6. After going through the evidence of P.W. 2 Sukar Munda and P.W. 3 Sanichar Munda, both travelling in the said trekker, the story of prosecution regarding robbery taking place and driver of the vehicle shot dead, stands proved except that they failed to identify the appellant in the dock. They have explained why they have not identified the appellant during test identification parade. It is quite natural during this occurrence robbers carrying gun, bomb, dagger were threatening the passengers, they would not be in a position to identify the robbers. However, the informant, who has close proximity with the appellant putting dagger on him. has got sufficient opportunity to see him and identify him. He has been identified in Hazaribagh Jail within two weeks of this occurrence as supported by P.W. 7 Shri D.S. Mishra, Judicial Magistrate, 1st Class, Hazaribagh. Shri Mishra has narrated the procedure by which he conducted the test identification parade. Therefore, we find that the doubt suggested by the counsel for the appellant regarding identification is not valid. 7. P.W. 4 Dr. Prem Das has conducted the post-mortem examination on the dead body of driver. P.W. 5 is a witness on the inquest report. P.W. 6 Virendra Prasad Yadav has recorded the statement of the informant on the spot and marked Ext. 3. prepared inquest report as well as arrested one Charka Munda on 18.10.1995. Thereafter, he handedover the investigation to Raj Nandan Singh. The said Raj Nanda Singh has not been examined. The doctor has opined a bullet entry wound and exist wound on the right side of the chest coming from left side of the chest. The prosecution version is therefore found correct and proved beyond doubt that in the evening of 8.10.1995, the driver of the trekker in which the informant was travelling as Khalasi was shot dead by one of the assailants during the alleged occurrence. It has also come on record that other vehicles were looted at the same time. The prosecution version is therefore found correct and proved beyond doubt that in the evening of 8.10.1995, the driver of the trekker in which the informant was travelling as Khalasi was shot dead by one of the assailants during the alleged occurrence. It has also come on record that other vehicles were looted at the same time. Therefore, the point at the time of only three assailants have participated in the alleged offence also appears to be not tenable. The non-examination of the some of the charge-sheeted witnesses in said nature of cases, passing by passengers do not come to testify before the trial Court. Therefore, the identity of the appellant having participated in the said loot in which the driver of the vehicle was shot dead appears to be proved beyond doubts. 8. We have further gone through the impugned judgment. The learned trial Court has considered all these aspects at length vide paragraphs 5, 6 and 8 of the impugned judgment. According, the conviction of the appellant under Section 396 of the Indian Penal Code is confirmed. 9. At this stage, learned Counsel for the appellant submitted that the appellant has already remained in custody from October 1995. He further drew our attention towards the fact that the appellant is not said to have fired the fatal shot upon the deceased. Therefore, his complicity in the alleged offence is limited to the extent that he was one of the assailants and putting the dagger upon the informant. Accordingly, the appellant may be considered for lesser sentence prescribed under the Act. Our attention was further drawn towards the sentences prescribed under Section 396 of the Indian Penal Code. In view of the provisions of law and punishment prescribed under Section 396 of the Indian Penal Code where the appellant has not fired upon the deceased, we are of the view that the ends of justice would be served properly if the sentence is reduced to the period already undergone by him. 10. In the result, we find and held that the present appeal has got no merit and is dismissed with modification in sentence to the period already undergone by the appellant. Let the appellant, who is in jail, be released from custody forthwith, if not wanted in any other case.