Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 698 (PAT)

Basant Kahar Alias Gariban v. State Of Bihar

2007-04-06

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Sole appellant basant Kahar alias Gariban along with others, namely, Bhimsen Singh, Rampati dusadh and Chanradeo Sao were put on trial for commission of offences under Sec.395, IPC and accused Rampati Dusadh further was charged under Sec.412, IPC. By judgment dated 4.7.1992 passed in Sessions Trial No.64/85 of 1986/86 by Sri Hari shankar Prasad. the then 4th Additional sessions Judge, Aurangabad while acquitting Bhimsen Singh, Rampati Dusadh and chandradeo Sao of the charges framed against them convicted the appellant herein, Basant Kahar, under Sec.395, ipc and by order dated 6.7.1992 convicted basant Kahar to undergo rigorous imprisonment for 10 years. 2. The prosecution case was set in motion when Birja Singh, the informant, at about 4 a. m. on the. morning of 18.7.1985 gave his fardbeyan before the SI of police amba P. S. stating inter alia that on 16.7.1985 there was a bhoj and on the following day there was barakhi of his deceased father, Ramdeo Singh, where many relatives from outside had gathered and had left by 4 p. m. It is said that the informant and his family members having become tired soon fell asleep with the informant sleeping in the outer baithak. At about 1 a. m. some unknown dacoits knocked on the main door of his house which aroused him. He saw 4 dacoits pointing their guns at him and they asked him to get the main door opened which the informant wanted to avoid. It is said that his younger brother jainandan Singh was sleeping by his side was not permitted to get up by the dacoits who tied the hands of both the brothers behind their back and threatened them not to raise any alarm. Out of fear both the brothers kept quite. The dacoits then brought the wooden portion of the rehat and with the help thereof dashed at the door as a result whereof the door was thrown open and the 8 dacoits entered inside the house and resorted to looting household articles which were carried away. The dacoits were 15-20 in number and in the age group of 20-22 years. Description of some of the dacoits and of their wearing apparel were also furnished. Details of the looted articles was also furnished. The dacoits were 15-20 in number and in the age group of 20-22 years. Description of some of the dacoits and of their wearing apparel were also furnished. Details of the looted articles was also furnished. It is said that after the dacoits had left they raised alarm which attracted the people of the vicinity who assembled and gave chase up to river Bhutane but the dacoits managed to escape. 3. On the basis of the said fardbeyan kutumba P. S. Case No.77 of 1985 under sec. 395, IPC was registered against unknown and police after due investigation submitted charge-sheet under Sections 395 and 412, IPC and eventually the four persons named above and whose names cropped up in course of investigation were put on trial for offences under Sec.395, ipc and accused Rampati Dusadh was further charged under Sec.412, IPC. The defence plea was one of innocence, false implication and it was alleged that no occurrence as alleged had taken place. 4. The prosecution in support of its case examined as many as 7 witnesses including the informant (PW 1), his younger brother, Jainandan Singh (PW 2), his sister Sumitra Kumari (PW 3), Utima Devi (PW 4) wife of the informant and Sunaina devi (PW 5 ). All these 5 witnesses were present at the time of the dacoity and as such all of them have claimed to be eyewitnesses to the occurrence. PW 6 is the Executive magistrate who conducted T. I. Parade of the articles seized/recovered and PW 7 is the Judicial Magistrate, who had conducted the T. I. Parade of the accused persons. However, the Investigating Officer of the case could not be examined and the prosecution has not been able to furnish any plausible explanation for such non-examination. 5. The learned trial Judge on consideration of the materials available on record and submissions advanced by the parties recorded a verdict of acquittal so far as accused Bhimsen Singh, Ramprit Dusadh and chandradeo Sao are concerned, all of whom were acquitted from the respective charges framed against them. However, accused basant Kahar @ Gariban was held guilty of the offence under Sec.395, IPC and was sentenced to RI for 10 years. 6. The learned counsel for the appellant sought to assail the impugned judgment on several grounds. However, accused basant Kahar @ Gariban was held guilty of the offence under Sec.395, IPC and was sentenced to RI for 10 years. 6. The learned counsel for the appellant sought to assail the impugned judgment on several grounds. The most important contention raised by the learned counsel was that the identification of the accused was done in and most perfunctory manner. It was sought to be pointed out that PW 1 had identified all the 4 accused at the T. I. Parade but in Court, on a day when the appellant was represented under Sec.317, Cr pc, the said witness failed to identify the three others standing in the dock but he claimed that he would be able to identify the other persons if they were present in court. According to the learned counsel, the learned Court accepted this as proper identification of the accused without he being produced in Court for proper identification. In this connection the learned counsel sought to point out that it is the identification of the accused in Court which is material and had relative value rather than the identification at the T. I. Parade. Learned counsel also drew my attention to paragraph 6 of judgment where in cross-examination on behalf of the accused Basant Kahar, PW 1 had stated that he did not know Nathun mahto, Basant Kahar and Arjun of village jelhara and that he recognised the accused persons only under pressure from the police. Similarly PW 2 had also not identified all the 4 accused in Court although he had identified them in the T. I. Parade. 7. Learned counsel further sought to point out that whereas on the same set of evidence 3 of the accused facing the trial had been acquitted but the learned trial judge for the reasons best known to him had found the appellant herein guilty of the offence he had been charged with. 8. The fact that the dacoity took place in the house of the informant is not in controversy and PWs 1 to 5 who were present at the time of the occurrence have corroborated the factum of dacoity and all of them figure as eyewitnesses to the occurrence. 9. 8. The fact that the dacoity took place in the house of the informant is not in controversy and PWs 1 to 5 who were present at the time of the occurrence have corroborated the factum of dacoity and all of them figure as eyewitnesses to the occurrence. 9. Pw 1 the informant has corroborated his fardbeyan story in material particulars and has hastened to add (in paragraph 6)that he had identified the dacoits in the light of the lantern which was burning in the verandah. This witness admits having appeared in the T. I. Parade and of identifying 4 suspects who allegedly had taken part in the commission of the dacoity at his residence but he failed to identify 3 of those suspects in Court and categorically stated that they had not participated in the dacoity. However, as it appears accused Basant kahar who was represented under Section 317, Criminal Procedure Code on that day and as the witness (PW 1) stated that he would be able to identify the accused if he remains present in Court the learned trial court presumably took this as proper identification notwithstanding the fact that the witness had been declared hostile as he failed to identify the three accused persons standing in the dock. From paragraph 13 of his deposition it is apparent that the witness had stated that he had recognized the accused under pressure from the police. It is also apparent from the deposition that to a specific Court question as to whether he had seen accused Basant Kahar before the t. I. Parade, the witness had stated that he had not seen him and he had stated that he had seen the accused persons and had identified them at the T. I. Parade as being present at the time of dacoity. PW 2 the brother of the informant has also supported the factum of dacoity and has corroborated the evidence of PW 1. However, he did not identify all the 4 suspects whom he had identified at the T. I. Parade. The three alleged witnesses Sunita Devi (PW 3), Utima devi (PW 4) and Sunaina Devi (PW 5) have corroborated the factum of dacoity but they are witnesses of T. I. Parade of stolen articles only and no effort was made to present them at the T. I. Parade of the suspects. 10. The three alleged witnesses Sunita Devi (PW 3), Utima devi (PW 4) and Sunaina Devi (PW 5) have corroborated the factum of dacoity but they are witnesses of T. I. Parade of stolen articles only and no effort was made to present them at the T. I. Parade of the suspects. 10. It would appear from paragraph 15 of the judgment under consideration that the Court below was swayed by the fact that although PW 1 had identified the accused persons under pressure from police but he was not cross-examined on the point whether the accused persons were shown to him prior to the holding of the T. I Parade. The other matter which weighed with the Court was the fact that PW 1 was never recalled by the defence for proper identification of Basant Kahar. 11. Section 317, Cr PC enables the Court to dispense with the personal attendance of the accused when represented by a pleader if the Court is satisfied that such attendance is not necessary in the interests of justice or that the accused is persistently disturbing the proceedings of the Court. It follows that inquiry or trial may proceed in the absence of all or any of the accused when personal attendance is, thus, dispensed with, but if at any subsequent stage the presence of all the accused becomes necessary for identification, record of statements or any other purpose, he may then be directed to attend. Identification of an accused in absentia by merely stating that he will identify when he sees the person is no identification in the eye of law. 12. To my mind the procedure adopted by the trial Court in holding the appellant guilty merely on the ground of question put to PW 1 by the Court does not appear to be legal and permissible. In no circumstances it can be said that the identification of the accused had been valid or legal. There is another aspect of the matter apart from the fallacious identification by PW 1 alone is that there is no other material to connect the appellant with the alleged dacoity. 13. Due regard being had to the fact and circumstances of the case I am of the opinion that the appellant herein, in all fairness, is entitled to a benefit of doubt and resultant acquittal. 14. 13. Due regard being had to the fact and circumstances of the case I am of the opinion that the appellant herein, in all fairness, is entitled to a benefit of doubt and resultant acquittal. 14. In the facts and circumstances of the case and the discussion made above the appellant is acquitted of the charge under sec. 395, IPC. Accordingly the appeal is allowed and the impugned judgment and order so far as the appellant is concerned is hereby set aside. It appears that the appellant had been granted bail by this Court vide order dated 30.7.1992. He is accordingly discharged from the liabilities of his bail bonds. Appeal allowed.