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2007 DIGILAW 862 (JHR)

Bharat Orawn v. State of Jharkhand

2007-11-21

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J.-This appeal is directed against the judgment and order of conviction and sentence dated 4.8.2004 passed by the 1 st Additional Sessions Judge, Seraikella in Sessions Trial No. 183 of 1993, whereby both the appellants were convicted for the offences under Section 395 of the IPC and sentenced to undergo R.1. for seven years and to pay a fine of Rs.5,0001- each. 2. Case against the present appellants and other co-accused persons was registered on the basis of the fardbeyan (Ext.-4) of the informant (PW 11) recorded on 13.1.1992 at about 9.00 PM. The case of the prosecution, as per the fardbeyan of the informant, is that in the evening of 13.1.1992 at about 7.00 PM the informant was at his clothes shop situated at village Hat. Some customers were also present at the shop. At that time, about 7-8 dacoits variously armed with pistols, bhujall and bombs entered into the informant's shop and threatened him as well as his brother and uncle and also the customers and the informant's driver. Two of the dacoits, whom the informant has named in his fardbeyan as Chitto Orawn and Bharat Orawn (present appellants), caught hold of the informant demanding the informant's gun and when the informant refused to deliver his gun, they beat him and took him to the adjacent road where other dacoits were present and were assaulting the informant's uncle (PW 10). The informant wanted to offer resistance by using his gun, then one of the dacoits Upendra Orawn assaulted the informant with the butt of his pistol, while the appellant Bharat Orawn snatched away the informant's gun from his hand. The dacoits committed loot and arson and robbed the informant of his cash amounting to Rs.2,000/- besides his wristwatch, clothes worth Rs.5,000/-, woolen sheets and the informant's DBBL gun. The loot continued for about 20 minutes and it was only when the inmates of the informant's family shot at the dacoits, culprits took to their heels. While the informant could identify the present two appellants amongst the dacoits, his brother (PW 4) and uncle (PW 10) had also identified two more amongst the gang of dacoits. On receipt of the information, police arrived at the place of occurrence, though by that time, culprits had made good their escape. While the informant could identify the present two appellants amongst the dacoits, his brother (PW 4) and uncle (PW 10) had also identified two more amongst the gang of dacoits. On receipt of the information, police arrived at the place of occurrence, though by that time, culprits had made good their escape. After recording fardbeyan of the informant, the investigating officer inspected the place of occurrence and seized empty cartridges, one live bomb and remnants of exploded bombs in presence of witnesses and prepared seizure list of seized materials. 3. In course of investigation, present appellants and other co-accused persons were arrested and those who were named in the FIR were put on T.1. Parade and. some of them were identified by the wit.nesses in the T. l. Parade. 4. Charge-sheet was submitted at the conclusion of the investigation on the basis of which, cognizance for the offences under Section 395 of the IPC was taken against the accused persons including the present appellants. Though, charge-sheet has been submitted against several co-accused persons, but trial could be conducted only against four including the present two appellants and two others namely, Upendra Orawn and Arjun Orawn. 5. The appellants had pleaded not guilty to the charges and had preferred to be tried. One of the co-accused who were put on trial namely Upendra Orawn has specifically pleaded alibi in his defence claiming that he was not present in the village at the alleged time of occurrence and was in fact present at a distance of 40 KM away from the village.Their case in defence of total denial of the allegations and of their false implication. 6. As many as 14 witnesses were examined at the trial by the prosecution including the informant (PW 11), father of the informant (PW 3), uncle of the informant (PW 10) who had sustained injuries at the hands of the dacoits and brother of the informant (PW 4). The investigating officer of the case was examined as (PW 13). Amongst several witnesses examined by the prosecution, PWs 1 and 7 did not offer support to the prosecution's case and were declared hostile by the prosecution. PW~ 5, 6, 8 and 9 were tendered for cross-examination by the prosecution. PW 12 is the Judicial Magistrate who has conducted T. Parade of the suspects. Amongst several witnesses examined by the prosecution, PWs 1 and 7 did not offer support to the prosecution's case and were declared hostile by the prosecution. PW~ 5, 6, 8 and 9 were tendered for cross-examination by the prosecution. PW 12 is the Judicial Magistrate who has conducted T. Parade of the suspects. PW 14 was examined as a formal witness who proved the police station diary entry. The material witnesses on whose evidences the prosecution has relied upon are the informant (PW 11), his family members namely, his father (PW 3), his brother (PW 4), his uncle (PW 10) and the investigating officer (PW 13). 7. Relying upon the testimony of other material witnesses mentioned above, the Trial Court recorded its finding of guilt against the present appellants for the offences under Section 395 of the IPC and had convicted them accordingly. However, finding evidences of the prosecution deficient in respect of the remaining two co-accused who had faced trial alongwith the appellants jointly, the Trial Court acquitted them from the charges by giving them benefit of doubt. 8. The appellants have challenged the impugned judgment of conviction and sentence mainly on the ground that the learned Trial Court has not appreciated the evidences on record in proper perspective and has committed grave error in placing reliance upon the testimony of the informant and members of his family, although no independent- witness has come forward to offer corroborative support to their evidences. Shri R.C.P. Sah, learned counsel representing the appellants, argues that the learned Trial Court has failed to consider numerous contradictions in the evidences of the witnesses namely, the informant and his uncle (PW 10) as well as the informant's father (PW 3). On reading the evidence of PW 3, obvious inference is that though, he has claimed to be an eye witness to the occurrence, but he was in fact present at his house at the - time of occurrence and could not possibly see the alleged occurrence at all. Learned counsel adds further that though the uncle of the informant (PW 10) has claimed to identify the present appellants, but he has not stated as to who among the dacoits had fired upon him causing injuries to him. Learned counsel adds further that though the uncle of the informant (PW 10) has claimed to identify the present appellants, but he has not stated as to who among the dacoits had fired upon him causing injuries to him. It is further argued that though, PW 10 has claimed to have suffered gun shot injury at the hands of the dacoits, but no medical evidence has been brought on record by the prosecution to prove the alleged injuries. 9. Learned counsel for the State on the other hand, relies entirely upon the findings of the Trial Court and submits that in view of the fact that the present appellants were identified by the informant and other witnesses even at the time of dacoity, and even named in the FIR "'besides being identified in course of trial by material witnesses, there is overwhelming evidence to prove beyond doubt that the present appellants alongwith their associates had committed dacoity in the shop of the informant. 10. From perusal of the impugned judgment of the Trial Court, it appears that the Trial Court has inferred from the evidences on record that more than five persons had indulged conjointly in the commission of the dacoity in the shop of the informant, out of whom, four accused persons could be apprehended and were put on trial, while the remaining had been de-clared absconder. 11. On reading the evidences of the informant, it appears that he has reiterated the same statements as contained in his fardbeyan. He has given a detail narration about the manner in which the occurrence took place, stating that in the evening of 13.1 .1992 while he was present at the shop, dacoits armed with weapons entered his shop and threatened him and other persons present in the shop. He has categorically identified the present two appellants amongst whom, he has specified that the appellant Bharat Orawn was the person who had assaulted him and had demanded his gun. He has also stated that his brother (PW 4) and uncle (PW 10) besides some customers were present at his shop at the time of occurrence and that his uncle (PW 10) was also assaulted by the dacoits who had caused gun shot injury to him. He has also stated that his brother (PW 4) and uncle (PW 10) besides some customers were present at his shop at the time of occurrence and that his uncle (PW 10) was also assaulted by the dacoits who had caused gun shot injury to him. He has explained in his cross-examination that he knew both the present appellants since his childhood as they belong to the neighbouring village and could therefore, identify them at the time of occurrence and identical explanation as to the basis of identification of both the appellants has been given by PWs 4 and 10 also. The mere fact that PW 10 has not specifically mentioned the name of the dacoit who had fired and caused gun shot injury to him, cannot be treated as a serious omission or contradiction. It is true that some of the customers whose name transpires- in the fardbeyan of the informant and claimed by the informant to be present at the time of occurrence in the shop, have not been examined by the prosecution as independent witnesses. Mere non-examination of the customers, in itself, does not belie the testimony of the informant or that of his brother and uncle. Even though, PWs 3, 4, 7 and 8 happen to be members of the informant's family, but their testimony cannot be discarded by treating them as interested witnesses. The defence has not brought anything on record to suggest that any of these witnesses including the informant was suffering from any animosity against either of these appellants from before and therefore, had a motive and interestedness to implicate the appellants falsely. The presence of these witnesses at the time and place of occurrence has been adequately proved and established by the evidence of the informant (PW11). The fact that a dacoity was committed in the shop of the informant is corroborated from the evidence of the investigating officer (PW 13) who had reached the place of occurrence within less than an hour after the occurrence and had found empty cartridges, live bomb and remnants of exploded bomb besides evidence of violence at the place of occurrence. In his narration of the manner of occurrence, the informant has stated that the dacoits had fired with their pistols and guns and had also exploded bombs to scare the people away. The description of the place of occurrence . In his narration of the manner of occurrence, the informant has stated that the dacoits had fired with their pistols and guns and had also exploded bombs to scare the people away. The description of the place of occurrence . and the objective finding of the investigating officer about the condition and circumstances available at the place of occurrence adequately lends corroborative support to the informant's testimony and that of the other witnesses examined by the prosecution on the point of occurrence. As regards the involvement of both the appellants, the consistent evidence of the informant and other witnesses namely PWs 4 and 10 is that both the present appellants were identified at the time of occurrence and that both• the appellants were known to the witnesses since much prior to the date of occurrence as both of them happens to be the residents of the neighbouring village. Learned counsel for the appellants has argued that if the informant and the appellants were known to each other, then it is highly improbable that the appellants would involve in the act of dacoity by exposing themselves without concealing their faces and identity. This argument of the learned counsel does not apply in the present case as because, though the informant and PWs 4 and 10 claim to know the appellants from before, it has not come in the evidence that the appellants also knew this fact that the informant and witnesses knew them from before. 12. From perusal of the impugned judgment, I find that the learned Trial Court has considered the evidences in detail and has given adequate reasons for recording its finding of guilt against the present appellants for the offences under section 395 of the IPC. The finding of the Trial Court does not suffer from any infirmity. 13. In the light of the above discussions, I do not find any merit in this appeal. Accordingly, this appeal is dismissed. The impugned judgment of conviction and sentence as imposed by the Trial Court against the appellants, is hereby sustained.