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2011 DIGILAW 1951 (PAT)

Saheb Mian v. State of Bihar

2011-09-12

GOPAL PRASAD

body2011
JUDGMENT Gopal Prasad, J.-Heard learned counsel for the appellant and the State. 2. The appellants have been convicted under Sections 395 and 397 of the Penal Code and have been sentenced to undergo rigorous imprisonment, for ten years and seven years respectively. 3. The case of the prosecution is that PW 4 was the owner and proprietor of the Nalanda Service Station Petrol Pump situated in mohalla Gagan Diwan, The petrol pump is having the generator and even if the electric supply is not there, there is arrangement for generation of electricity. On 30.5.1994 PW 4, the proprietor/owner of the petrol pump along with his raxin bag proceeded for his house and at that time there was light and staff as well, a tanker came for unloading petrol and tin• of mobile was being unloaded from the tanker, In the meantime, 4-5 persons, armed with fire arms, came and 2-3 persons surrounded PW 4, who got himself freed from the clutches of the accused persons and running away, in the meantime, one of the accused persons fired upon PW 4 causing injury on his head and when he fell down then one of them snatched his raxin bag. containing money and passed over to the other person. 4. The person who snatched the bag was caught hold by the witnesses who are the staff of the petrol pump and the person who was caught hold disclosed his name as Ajay Dhanuk. However he confessed before the witnesses about the committing of dacoity and disclosed the names of the persons who were his associates as Raka @ Rakwa. Kana Saheb @ Saheb Mian and AIjun Mahton. Kana Saheb. co-accused arrested during the investigation and was identified during the trial by the witnesses as the person who has received the raxin bag containing the money which was snatched from Aam Ashraya Prasad Singh. 5. The police after investigation submitted the charge sheet on which the cognizance taken and subsequently after commitment of the case to the Court of Session the charge was framed for offence under Sections 395 and 397 of the Penal Code and during the trial eight witnesses were examined. 6. 5. The police after investigation submitted the charge sheet on which the cognizance taken and subsequently after commitment of the case to the Court of Session the charge was framed for offence under Sections 395 and 397 of the Penal Code and during the trial eight witnesses were examined. 6. The trial Cont taking into consideration the evidence that witnesses have supported the prosecution case regarding the implication of the appellants and P.Ws- 1, 2, 3, 4 and 5 have supported the prosecution case regarding the implication of the accused persons. P.Ws. 1, 2, 4 and 6 supported the prosecution case regarding commission of dacoity. The dacoit who was caught hold was armed with fire-arm and has confessed about the guilt and the witnesses supported that he was the person who snatched raxin bag containing the money and he disclosed the names of other accused persons who were his associates and. hence the appellants have been convicted and sentenced as stated above. 7. The learned counsel for the appellants however contends that there is no evidence regarding the use of the fire-arm by the appellants and has contended that the allegation of firing has been made against only one person which has caused injury to the owner of the petrol pump and the offence under Section 397 of the Penal Code can be fastened against the person. who used the activity during the commission of a robbery and it can not be used as vicarious liability for all the persons who were members in the commission of dacoity and submits that unless there is evidence that the appellants were armed with deadly weapon specifically he can not be convicted and sentenced for offence under Section 397 of the Penal Code and has relied upon a decision reported in 2008 (1) East Cr C 43 (SC): AIR 2007 SC 3234 . Dilawar v. State of Delhi and has further contended that offence is of the year 1994 and several years has elapsed and appellant No. 1 has remained in jail for more than four years and appellant No.2 has remained in jail for more than five years and. hence. a lenient view may be taken. 8. The learned counsel for the informant and State. hence. a lenient view may be taken. 8. The learned counsel for the informant and State. however countered the argument and submitted that there, is evidence that appellant No. 2 has used the fire-arm and the use does not mean that by the said firing some persons have been injured and even if weapons is visible causing reasonable apprehension of firing or creating a terror in the mind of the victim is a sufficient for holding that the appellants have used the fire-arm and hence contended that taking into consideration the nature of crime committed, dacoity in the market area resorting to, firing does not attract any sympathy. 9. However taking into consideration the evidence in the light of the submissions, it is apparent that P.Ws. 1, 2 and 3 have supported the prosecution case about the dacoity and the dacoits resorted firing causing injury to PW 4 on his head has been proved by PW 5 the doctor, However as per evidence of PW 4, itself that three persons surrounded him, one fired and when he was calling then other snatched his bag and passed it to another person however it is not specific that who fired but the witnesses deposed that one person who snatched the raxin bag was apprehended and he disclosed his name as Ajay Dhakuk and he was armed with pistol and at the time when he was brought by the people he fired, but it was misfired and hence there is apparent that appellant No.2. Ajay Dhanuk was armed with pistol which is a dangerous weapon and even it misfired he can well be inferred that he used the fire-arm and hence he has been convicted under Section 397 of the Penal Code. 10. However so far appellant No. 1 is concerned though the witnesses have supported the prosecution case and there are evidence that Ajay Dhanuk snatched the raxin bag, containing the money from PW 4 and passed it over to appellant No.1. but there is no evidence that there is no specific evidence that he was armed with pistol or fire-arm. 10. However so far appellant No. 1 is concerned though the witnesses have supported the prosecution case and there are evidence that Ajay Dhanuk snatched the raxin bag, containing the money from PW 4 and passed it over to appellant No.1. but there is no evidence that there is no specific evidence that he was armed with pistol or fire-arm. He was not a person arrested at the spot though his name has been placed in the confessional statement by Ajay Dhanuk and he confessed before the witnesses who caught hold of him and hence, it is extra judicial confession of Ajay Dhanuk in which he named appellant No. 1 and hence, it is an inculpatory statement of Ajay Dhanuk With implication of appellant No.2 and Kana Saheb and hence is admissible in evidence. 11. However the criticism on behalf of the appellants that Kana Saheb was arrested during the investigation and no Test Identification Parade has been conducted and. Hence, his confession is not reliable and trustworthy, However it is true that no Test Identification Parade has been conducted but the witnesses have identified Kana Saheb in Court, However in Court the evidence placed where the occurrence took place there was sufficient arrangement of light and the probability that the witnesses had seen the appellants well can not be ruled out. There were several staff of the PW 4 and in such a situation the raxin bag was snatched and passed over to other person must have been imprinted in the mind of the witnesses. Their evidence that they identified Ajay Dhanuk snatching raxin bag from the informant has been found to be reliable and trustworthy and, hence this evidence of the witnesses read with confessional statement of the self inculpatory by a complete statement before the witnesses are sufficient for conviction of appellant No. 1 and Kana Saheb and the criticism has got no significance. 12. However having regard to the fact that there is no specific evidence regarding the use of fire-arm by Kana Saheb having been established and the learned counsel for the appellants and the State also concede that there is no specific evidence about that Kana Saheb was armed with any fire-arm or used any fire injury hence the conviction and sentence against Kana Saheb for offence under Section 397 of the Penal Code is not sustainable. 13. 13. Having regard to the fact that the appellants have been convicted under Section 397 of the Penal Code for seven years and under Section 395 of the Penal Code for ten years appears to be reasonable and hence the sentence under Section 395 of the Penal Code is reduced to for a period of seven years. 14. However having regard to the fact the submission that appellant No. 1 has remained in jail for more than four years and appellant No.2 has remained in Jail for more than five years hence a lenient view may be taken against the appellants. 15. However having regard to the fact that the occurrence took place in the year 1994 at 7.30 p.m. in a market area using the fire-arm causing injury to the owner of the petrol pump hence in the facts and circumstances. I do not think it proper that the appellants are liable for any sympathy, Hence this appeal is dismissed with modification in sentence from ten years to seven years for offence under Section 395 of the Penal Code. Appeal dismissed.