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2012 DIGILAW 1050 (PAT)

Mohan. Sahni @ Mohan Sahani v. State of Bihar

2012-07-31

SHEEMA ALI KHAN

body2012
Judgment Sheema Ali Khan, J. These two appeals have been preferred by the appellants against the judgment of conviction and the order of sentence dated 28th September, 2000 passed by the 5th Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 182 of 1998 whereby the above named four appellants have been found guilty for the offences punishable under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and have also to pay a fine of Rs.1,000/- each, in default of payment of fine, they have to undergo rigorous imprisonment for one year. The appellants were also convicted under Section 397 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for seven years, in default of payment of fine, they have to undergo rigorous imprisonment for one year. The appellant Prayag Sahani was also convicted under Section 412 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for five years. The appellant Prayag Sahani was also directed to pay a fine of Rs.1,000/-, in default of which, he would have to undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently. 2. The prosecution case, as instituted on the statement of the informant Nagina Ram, who was injured during the occurrence, is that while he was returning from the Motihari Bazaar, and reached Sanjivinisura Factory near a bridge, it is alleged that Hari Sahani opened fire, which hit him on his chest, whereas Prayag Sahani and Jitendra Sahani assaulted him on his chest, due to which he fell down. It is further alleged that the appellants and one other looted all his articles and money. It is also alleged that the miscreants have looted several other persons, amongst whom the informant identified Upendra Mishra, Sanjay Singh, Sheoshankar Rai, Md. Sahabuddin and Shambhu Sah. After injuring the informant, the miscreants ran away from the place of occurrence. The villagers gathered and took the injured to the hospital for treatment. 3. In this case, 12 witnesses have been examined. The Doctor has been examined as' PW-11 and the Investigating Officer has been examined as PW-12, PW-10 is the C.O., Turkauliya at the relevant time and he had conducted the Test Identification Parade of articles which were recovered from the house of prayag Sahani. 3. In this case, 12 witnesses have been examined. The Doctor has been examined as' PW-11 and the Investigating Officer has been examined as PW-12, PW-10 is the C.O., Turkauliya at the relevant time and he had conducted the Test Identification Parade of articles which were recovered from the house of prayag Sahani. The others are victims of the dacoity and the family members of the informant. 4. PW-1 Ram Dayal Rai, who is the brother of the informant, had come to the place of occurrence when he heard about it from the villagers. He is not an eyewitness to the occurrence, but he has supported the fact that his brother was badly injured by the dacoits at the time of occurrence. 5. PW-2 Birendra Ram was returning from Birganj when he was apprehended and his belongings were snatched away by the miscreants. He named a number of persons. He also identified the appellants alongwith one Hari Sahani and Mohan Sahani. This witness identified Sheopujan Sahani but was not able to identify Jitendra by name, he identified Mohan as Jitendra in the Dock. 6. PW-4 Manager Sahani claims that he too was the victim of the said dacoity and was also injured in the dacoity, although there is no medical report to support this aspect of the matter. Before the Trial Court, while adducing his evidence, he shows the injuries to the Trial Judge and supports the case of the prosecution by saying that he heard the sound of firing. It has been argued that this witness states that he heard three rounds being fired. It is further submitted that this witness has not said a word regarding the allegation of inflicting chura blow on the informant. It is, therefore, contended that there are contradictions in the deposition of this witness and this Court should not believe him. The submission aforesaid on behalf of the appellants, that the evidence of PW-4 cannot be accepted by this Court for the reason that it is not essential that all the persons who were victims of the dacoity would reveal each and every fact. This witness supports the prosecution version that several persons were looted, amongst them, he had identified Lal Mohammad, Ram Pravesh Sahani and Shambhu. He identified the appellants in Court. 7. PW-5 Md. Sahabuddin has received injuries. The injury has been supported by the doctor, PW-10. This witness supports the prosecution version that several persons were looted, amongst them, he had identified Lal Mohammad, Ram Pravesh Sahani and Shambhu. He identified the appellants in Court. 7. PW-5 Md. Sahabuddin has received injuries. The injury has been supported by the doctor, PW-10. On the order of Trial Court, he showed the injury to the Trial Court. This witness has not identified the appellants by names, but claims to identify them by faces. In court, he identifies Sheopujan Sahani and Prayag Sahani. 8. PW-6 Ajay Singh and PW-7 Upendra Mishra have stated that they went to the Police Station when the dacoits were caught and the Daroga asked them to confirm whether they are the persons who were involved in the dacoity. These witnesses confirmed the fact and have identified the appellants. PW-7 identified prayag Sahani and Jitendra in the dock, but does not identify the others. 9. PW-8 Sital Thakur is the witness to the fardbayan and supports the prosecution story of firing as well as infliction of chura blow by prayag and Jitendra Sahani. This witness was returning from Motihari when he heard the sound of firing and saw the occurrence. 10. PW-9 Nagina Rai is the informant of this case. He has supported his fardbayan in its totality. There is no discrepancy or contradiction in his cross-examination, although the defence has questioned him at some length regarding the various aspects of the occurrence. He admits that he was apprehended by the appellants, while he was returning from Motihari and they looted his articles and money. This witness states that after giving fardbayan, he became unconscious until he was brought for treatment to the hospital. In fact, this Court finds no reason to doubt the evidence as stated by PW-9 regarding the occurrence. This witness names the appellants and others in the fardbayan and supports their identification in Court by naming them and by face as well. It may be mentioned' here that these appellants could be identified because they all belong to the neighbouring Village-Raghunathpur, which is the village adjacent to the village of the informant. 11. PW-11 Dr. Udai Shankar Pathak has supported the injuries and also proved the injury reports prepared by him with respect to the injuries sustained by Nagina Rai, Sahabuddin Mian and Sheoshankar Rai. 11. PW-11 Dr. Udai Shankar Pathak has supported the injuries and also proved the injury reports prepared by him with respect to the injuries sustained by Nagina Rai, Sahabuddin Mian and Sheoshankar Rai. This witness has found one lacerated would oval with blacken and inverted margin on left sterna border,' which' is the wound of entry and the wound of exit. Apart from that, there is also one incised wound and a lacerated wound with an inverted margin on the right glutal region. Thus, the injury supports the prosecution' case that Hari Sahani had opened fire twice on the informant. The incised injury indicates that a chura blow was inflicted on the informant. Similarly, the injuries sustained by Sahabuddin Mian and Sheoshankar Rai had also been mentioned by this witness. 12. PW-12 Budhdeo Ram is the Investigating Officer of this case. He has visited the place of occurrence and has taken the• statements of all the witnesses under Section 161 of the Code of Criminal Procedure. His attention had been drawn to the statements made by the witnesses, which he has supported in various paragraphs of his deposition. 13. On perusal of all the evidence, it would appear that the appellants alongwith one other were responsible for committing dacoity by stopping the travelers and looting them of their belongings. Nagina Rai, unfortunately, was injured because he had protested. The injuries received by Nagina Rai and others were supported by the persons who received the injuries as well as the doctor. 14. Emphasis has been laid on behalf of the appellants on the fact that the witnesses have not particularly disclosed as to how they came to identify the appellants. It is also a fact that no Test Identification Parade was held, rather PWs-6 and 7 have stated that the Daroga had called them to the Police Station to identify the dacoits after they were apprehended. Counsel for the appellants submits that the witnesses have seen the appellants in the Police Station, it would be unfair to hold that the identification made in the Court should be relied upon for the purposes of convicting these appellants and holding that they had participated in the dacoity. Counsel for the appellants submits that the witnesses have seen the appellants in the Police Station, it would be unfair to hold that the identification made in the Court should be relied upon for the purposes of convicting these appellants and holding that they had participated in the dacoity. Despite the aforesaid fact, some of the witnesses failed to identify the appellants, which would lead to the conclusion that they were not tutored, as these two witnesses admittedly identified only two persons, whereas PW-5 identified Sheopujan Sahani and Jitendra Sahani, PW-7 has identified Prayag and Jitendra Sahani. At least, two witnesses, namely, Sahabuddin and Nagina Rai have supported the manner of occurrence and have also supported the fact that Nagina Rai was assaulted by Jitendra Sahani and Prayag Sahani, whereas Sahabuddin identified Jitendra Sahani as the person who had assaulted him with a knife. Lastly Counsel for the appellants submits that the occurrence has taken place on 14.6.1997. It is submitted that there is no specific allegations against Mohan Sahani and he has already remained in custody for 1 year and 9 months. The appellant Jitendra Sahani has remained in custody for about 2 years and 7 months, whereas appellants Sheopujan Sahani and Prayag have remained in custody for 3 years 5 months and 22 days. In such circumstances, Counsel for the appellants submits that considering that 15 years have passed since the occurrence has taken place and that the appellants have served a considerable period in jail, this Court should take a lenient view. 15. Considering all the facts, this Court finds that the period undergone by the appellants would be sufficient to meet the ends of justice. However, all the appellants are directed to deposit fine of Rs.1,000/- as directed by the Trial Court within a period of four months, failing which they have to undergo simple imprisonment for six months. 16. Regarding the charge under Section 412 of the Indian Penal Code against the appellant Prayag Sahani, it is perhaps rightly submitted that the procedure for conducting the Test Identification Parade of the items is lacking and as such, it cannot be• said that the appellant Prayag Sahani is guilty of the offences punishable under Section 412 of the Indian Penal Code. I accordingly acquit the appellant Prayag Sahani of the charge under Section 412 of the Indian Penal Code. 17. I accordingly acquit the appellant Prayag Sahani of the charge under Section 412 of the Indian Penal Code. 17. Counsel for the appellants submits that he had got oral instructions to submit that appellant Sheopujan Sahani died during the interim period. The Trial Court will confirm this aspect of the matter and if it is found that Sheopujan Sahani is dead, the appeal against him would automatically abate. 18. In the result, these two appeals are dismissed with the modification in the sentence. However, the appellants would be discharged from the liabilities of the bail bonds furnished earlier in this case only on payment of fine.