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2007 DIGILAW 710 (PAT)

Kailash Yadav v. State Of Bihar

2007-04-09

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Appellant, Kailash Yadav, alongwith Rajendra Yadav, Shiv Yadav and Bilash Thakur faced trial of alleged offence punishable under Sec.392 of the Indian Penal Code. That apart Whereas Kailash Yadav also faced trial for commission of offences under Sections 25(A) and 26 of the Arms Act, accused Shiv Yadav was also charged for commission of offence under Sec. 412 of the I.P.C. Shri Someshwar Nath Pathak the then 8th Additional Sessions Judge, Gaya, who was in seisin of the trial by his Judgment and order dated 26.8.1992 recorded a verdict of conviction of Kailash Yadav only holding him guilty of offence under Section 392 of the I.P.C. and Sections 25(A) and 26 of the Arms Act and acquitted and discharged the other three accused. Convict Kailash Yadav was sentenced to undergo rigorous imprisonment for five years under Sec.392 of the I.P.C. and two years rigorous Imprisonment for the offence under Sec.26 of the Arms Act. No separate sentence was imposed for the offence under Sec.25(A) of the Arms Act and the sentences awarded were directed to run concurrently. 2. The prosecution case rests on the fard beyan given by one Kedar Prasad Gupta, inter alia, alleging that on 25.11.1981 he had boarded bogie No. 2623 of the P.G. train leaving Gaya Station at 9 P.M. and as the train reached a place between Gaya and Kastha 3-4 persons who had boarded the aforesaid bogie at Gaya suddenly stood up and started looting the passengers. They were armed with pistol, Chhura etc. The informant was also a victim of the loot as one of the culprits snatched the portfolio bag containing papers etc. from him. The culprits also looted the other passengers in the bogie. It is said that none of the passengers offered any resistance on account of fear because the culprits were armed with lethal weapons. It is said that one of the culprits was wearing Lungi and Kurta and wielding a pistol whereas another person was wearing trousers and had a pistol in his hand. The third was attired in Dhoti Kurta and was brandishing a Chhura. All of them were in the age group of 25-30 years. It is also said that the person wearing Dhoti Kurta had long hippy cut hair whereas the one clad in Lungi was wearing pendents in both ears and the man wearing trouser had a poxed face. The third was attired in Dhoti Kurta and was brandishing a Chhura. All of them were in the age group of 25-30 years. It is also said that the person wearing Dhoti Kurta had long hippy cut hair whereas the one clad in Lungi was wearing pendents in both ears and the man wearing trouser had a poxed face. When the train stopped at Kastha Railway Station the culprits alighted from the bogie and fled away. On the passengers raising alarm the escort party which was in the adjacent bogie gave chase and managed to apprehend one of them. The apprehended accused disclosed his name as Kailash Yadav and those of his accomplices as Shiv Yadav, Rajendra Yadav and Bilash Thakur. He also gave out that the culprit with a Tika on his forehead was Bhit Yadav and the poxed face person was Rajendra Yadav who was the leader of the gang and he carried away the looted articles. On search of Kailash Yadav a loaded country made pistol and two live cartridges were recovered from the folds of his waist. The recovered items were seized under a seizure list whereupon the informant put his signatures. 3. On the basis of the said fard by an Gaya G.R.P.S. Case No. 170 of 1981 was registered under Sec.392 of I.P.C. and 25(A) of Arms Act against four persons aforesaid. After due investigation the police submitted a chargesheet against the four F.I.R. named accused and after commitment as stated above charges under Sec.392 of I.P.C. was framed against all the four accused whereas Shiv Yadav was also charged under Sec. 412 of I.P.C. and Kailash Yadav was further charged under Sec.25(A) and 26 of Arms Act. 4. The accused pleaded not guilty and claimed to be tried. The defence plea was one of innocence and false implication. 5. At the trial the prosecution in support of its case examined in all nine witnesses and brought on record several documents including the fard beyan, F.I.R., seizure list and the sanction order. Out of the nine witnesses P.Ws. 2, 3 and 5 are witnesses of the seizure list, P.W. 7 is the leader of the escort party. P.W. 9 is a formal witness who proved the case diary and P.Ws. 1, 4 and 8 are the passengers of the ill-fated bogie. 6. Out of the nine witnesses P.Ws. 2, 3 and 5 are witnesses of the seizure list, P.W. 7 is the leader of the escort party. P.W. 9 is a formal witness who proved the case diary and P.Ws. 1, 4 and 8 are the passengers of the ill-fated bogie. 6. On a consideration of the materials on record the Learned trial Judge as stated above while acquitting three of the chargesheeted accused of the respetive charges framed against them recorded a virdict of guilt against accused Kailash Yadav only. 7. The learned Counsel for the appellant was critical of the impugned Judgment and order and raised several contentions in this regard. Initially he raised the grievance against non-examination of the informant and the I.O. which according to him was prejudicial to the defence. He further contended that it would be apparent from perusal of the record that P.W.1 Vijay Kumar Mishra who was a travelling passenger on the train failed to identify the accused Kailash Yadav and had also failed to identify the accused at the T.I. parade. He also did not state anything in course of his testimony about the recovery of the articles from the possession of the appellant and he was accordingly declared to be hostile. Similarly P.W. 4 another travelling public on the train also could not identify the appellant in the court and he was declared to be hostile. He too did not say anything regarding the recovery of articles from the possession of the appellant. The learned Counsel further sought to point out that P.Ws.2 and 3 who were deemed as witness to the seizure list stated in court that the police had obtained their L.T.I. on plain paper and as such they too were declared hostile. P.W.5 the third seizure list witness was also declared to be hostile as he denied that he was a travelling passenger on the train on the alleged date and time of the occurrence and he further denied his alleged statement before the police. P.W.8 also did not state anything regarding the recovery of articles from the possession of the appellant. 8. P.W.8 also did not state anything regarding the recovery of articles from the possession of the appellant. 8. On the aforesaid premises the learned Counsel for the appellant submitted that the virdict of guilt recorded against the appellant, notwithstanding contradictions galore amongst the witnesses, was not sustainable in the eye of law and the Judgment and order of conviction and sentence was liable to be set aside. 9. Due regard being had to the situation arising out of the contentions raised by the learned Counsel for the appellant it would be trite to look into the evidence which is available on record. 10. P.W.1. Vijay Kumar Das claims to be one of the passengers who was travelling on the ill-fated train on the alleged date and time. This witness has admitted of the looting in the aforesaid bogie of the train. Nevertheless he failed to identify the appellant in court and in this regard he stated that as his glasses were snatched and thrown away by the dacoits, therefore, he could not identify them in the court. He admits having attended the T.I. parade where he could not identify any of the articles allegedly looted by the dacoits from his possession or from his wife. The T.I. Chart unfortunately was not produced in evidence. He further stated about one of the accused being apprehended by the escort party on chase but nothing was said about recovery of any article from his possession. On the contrary he stated that the police had said that something was recovered from the possession of the appellant. P.Ws. 2 and 3 are so called witnesses of the seizure list. However, in their testimony they stated that the police had obtained their thumb Impression on a plain sheet of paper. From the above it would appear that the prosecution had not been able to extract any substantial material from these witnesses so as to impeach the credibility of these witnesses. 11. P.W.4 is another witness who was travelling on the ill-fated train in which the dacoity had been committed. He corroborated the factum of dacoity in the train and the arrest on chase of Kailash Yadav by the escort party. 11. P.W.4 is another witness who was travelling on the ill-fated train in which the dacoity had been committed. He corroborated the factum of dacoity in the train and the arrest on chase of Kailash Yadav by the escort party. He also stated of Kailash having disclosed the name of his accomplices but he was unable to identify Kailash Yadav in court and could not state anything regarding the recovery and due to this he was declared to be hostile. P.W.5 is another witness of the seizure list who identified his L.T.I. on the seizure list. However, he denied the fact that he was a travelling passenger on the train. He too was declared to be hostile and cm cross examination by the prosecution he did not support his alleged statement under Sec.161 Cr.P.C. 12. P.W.6 claiming to be one of the travellers in the train admitted about the alleged dacoity and of Kailash Yadav being apprehended by the escort party on chase and of his having disclosed the name of Rajendra Yadav. He further corroborated the fact of recovery of articles from the possession of the apprehended Kailash Yadav. He also stated that the man with the poxed face and wielding a pistol in his hand had snatched his H.M.T. Watch and Muffler and that the said culprit was not present in the dock. He further identified the person standing in the dock as the person who he had seen being apprehended by the escort party on chase and of the recovery of firearm and cartridges from his possession. P.W.7 is the leader of the escort party who stated of having acted forthwith on hearing the alarm raised by the passengers and of having caught Kailash Yadav on chase and of having recovered firearm and ammunitions from his possession. He has identified Kailash Yadav standing in the dock. He also stated that this Kailash Yadav had disclosed the names of his accomplices. P.W.8 is another travelling passenger of the train who stated in court that it was Kailash Yadav who had snatched his wrist watch which was recovered from his possession later on his being arrested by the escort party. He identified Kailash Yadav standing in the dock. 13. From the above it is clear that the participation of Kailash Yadav in the alleged dacoity is corroborated by three witnesses, namely, P.Ws. He identified Kailash Yadav standing in the dock. 13. From the above it is clear that the participation of Kailash Yadav in the alleged dacoity is corroborated by three witnesses, namely, P.Ws. 6, 7 and 8 who have also stated of the recovery of arms and ammunitions from his possession on being apprehended on chase. That apart all these three witnesses have categorically identified Kailash Yadav standing in the dock. Nothing of any material or substantive value has been extracted in course of cross examination of these witnesses by the defence. 14. Now coming to the aspect of non examination of the Investigating Officer the learned Counsel for the appellant has not shown by reference to any aspect as to how non examination of the I.O. has resulted in any prejudice to the defence. The argument that non-examination of the I.O. invariably resulted in prejudice to the accused and should be held to be fatal as an absolute proposition is falacious. The well settled law in this regard is that non-examination of the I.O. can result in failure of the prosecution case only in such cases where the defence wants to prove some material contradictions in the depositions of the witnesses by reference to their statement made during the investigation to undo their credibility or in the like manner when some material evidence cannot be brought on record except by examining the I.O. In the present case nothing of this nature has been brought to my notice which can be said to have resulted in prejudice to the appellant on account of non-examination of the I.O. I do not find any merit in this submission of the learned Counsel for the appellant. It is not a case where P.Ws. 6. 7 and 8 have been shown to carry any animosity or grudge against the appellant or of having any axe to grind. 15. Similar is the situation regarding the non-examination of the informant. True it is that the informant had not been examined but that by itself cannot deprive the prosecution from proving its case beyond all reasonable doubt by relying on the testimony of other witnesses. There are already three witnesses who have proved the fat of active participation of the appellant and recovery of firearms and ammunitions plus stolen articles from his possession on being apprehended on chase. 16. There are already three witnesses who have proved the fat of active participation of the appellant and recovery of firearms and ammunitions plus stolen articles from his possession on being apprehended on chase. 16. There is no reason to ignore or disbelieve these witnesses. Accordingly, I find no merit also in this submission of the learned Counsel for the appellant. 17. It is an admitted position that a dacoity had been committed in the P.G. train leaving Gaya at 9 P.M. and that the appellant herein had been apprehended on chase and of arms and ammunitions and stolen articles being recovered from his possession. P.Ws.6 to 8 have specifically identified him while standing in the dock as a participant in the dacoity. His conviction under Sec.392 of I.P.C. and 25(A) and 26 of the Arms Act are hereby approved. 18. It has been submitted on behalf of the appellant that if the Court is inclined to approve the Judgment and order of conviction passed by the learned trial Judge then due regard being had to the long period of litigation and the trauma faced by the appellant herein he may not be asked to go back and serve the period of sentence. 19. Due regard being had to the facts and circumstances of the case as also to the fact that the initial case is of the year 1981 and the impugned Judgment and order was passed way back in 1992 and the appellant herein has had to face the trauma and hardship of a prolonged litigation that has taken almost twenty six years it would only be in the fitness of things, and, in my opinion, interest of justice would be served if the period of sentence is modified to the period already undergone. 20. In the result, the appeal is dismissed with modification in sentence as stated above. The appellant shall be discharged from the liability of his bailond.