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2012 DIGILAW 1226 (PAT)

Bagedan Bind v. State Of Bihar

2012-09-03

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. Above noted three appeals arise out of common judgment of conviction and order of sentence, hence they are heard and disposed of by this common judgment. 2. These three appeals have been preferred against the judgment of conviction dated 21st December, 2006 and the order of sentence dated 22nd December, 2006 passed in Sessions Trial No. 242 of 1999/67 of 2002 whereby the Additional Sessions Judge, Fast Track Court No. II, Kaimur at Bhabhua has found and held the appellants guilty for the offences punishable under Section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years. Appellant Balia Bind has further been convicted to undergo rigorous imprisonment for ten years under Section 397 of the Indian Penal Code. The appellants Balia Bind and Raghunath Bind have been further convicted to undergo rigorous imprisonment for five years under Section 27 of the Arms Act. All the sentences were to run concurrently. 3. Learned Counsel appearing on behalf of Raghunath Bind, appellant in Criminal Appeal No.161 of 2007 submits that he has died during the pendency of this appeal. No affidavit has been filed in Court in this matter. It would, thus, require that the trail court should verify this fact. If it is found that Raghunath Bind, son of Sukhu Bind, resident of village Sade Kawaee, P.S. Sonhan, District, Kaimur has died the judgment against Raghunath Bind, appellant in Criminal Appeal No.161 of 2007 shall stand abated. 4. Kailash Bind, informant of this case gave his fardbeyan at Sadar Hospital, Bhabhua on 23.03.1999 at about 7.30 A.M. In the First Information Report it is said that he was sleeping along with his wife and son when some persons began to beat the door and finally broke the door and entered into their house. They were 6 to 8 in number. The informant is said to have identified the six appellants as well as one Tilaku Bind. It is alleged that these persons began to commit loot and took away clothes, silver and Rs. 5,000/- cash. Tilaku Bind is said to have fired with his gun on the informant whereas Balia Bind said to have fired on the wife of the informant P.W.5. Both of them received serious injuries on the hand and on the fist by the said firing. 5. 5,000/- cash. Tilaku Bind is said to have fired with his gun on the informant whereas Balia Bind said to have fired on the wife of the informant P.W.5. Both of them received serious injuries on the hand and on the fist by the said firing. 5. The genesis of the occurrence according to the informant is land dispute. Initially the case was recorded under Section 395/397 of the Indian Penal Code. Subsequently during investigation chargesheet was submitted under Sections 147, 148, 149, 324, 326 307/34 of the Indian penal Code. After P.W.1, Yamuna Bind was examined on 17.06.2002, the charges were altered and framed under Section 395/397 of the Indian Penal Code. Thus, the case of the prosecution is that the named accused persons along with some others had committed the dacoity in their house and while committing dacoity had fired on the informant and his wife because of which they received grievous injuries. Unfortunately the doctor and the Investigating Officer have not been examined in this case. 6. Thirteen witnesses have been examined in this case. P.Ws.2, 6, 7 and 11 are hearsay witnesses who do not disclose the name of the accused persons. P.Ws. 3, 4 and 10 are formal witnesses who have proved the formal First Information Report and the seizure list, whereas, P.Ws. 8 and 13 have proved the injury report. Four witnesses claim to be eye witnesses to the occurrence i.e. P.Ws. 1, 5, 9 and 2. 7. It may be noted that the witnesses who claim to have identified the appellants were injured during the course of the occurrence, and have given up the case made out in the First Information Report regarding the genesis of the occurrence. In fact all the four witnesses do not disclose the fact that the appellants and the informant are closely related to each other. It is only in the cross-examination, that these facts were elicited from the witnesses. Another important aspect of the case is that the hearsay witnesses who are independent witnesses and came to the place of occurrence after occurrence took place, have not disclosed the name of those who participated in the alleged occurrence. Although they admit that dacoity had taken place and they reached the place of occurrence on hearing the hue and cry raised by the family members of the informant. 8. Although they admit that dacoity had taken place and they reached the place of occurrence on hearing the hue and cry raised by the family members of the informant. 8. In this background, this Court will examine the evidence of the four witnesses who were able to identify the persons who had participated in the dacoity. 9. P.W.1, Yamuna Bind is the brother of the informant. According to him that he ran after hearing the sound of firing and saw the occurrence from behind a hay stack. He claims to have identified Tilaku Bind. The attention of this witness has been drawn to the statement made under Section 161 of the Code of Criminal Procedure. Specific question has been put as to whether this witness had disclosed the name of the appellants before the Investigating Officer. This witness denies that he had not disclosed the name of the appellants before the Investigating Officer. 10. P.W.5 Sahodari Devi is the wife of the informant. At paragraph 6, she admits that there was some sort of a dispute between the appellants. She specifically states the name of Tilaku Bind. According to her, Tilku Bind (since deceased) is her Pattidar. At paragraph 11, she states that Lallan, Deoraj and Raghunath are from some other village, whereas, other appellants are from the same village as the informant. P.W.5 Sahodari Devi has made out a case and stated in her chief that four persons had entered her house. She has stated that when the appellants were removing the box under the bed she showed resistance, which led Balia Bind to fire, which hit her face and also injured her thumb. She claims that the dacoits looted articles etc. worth Rs. 50,000/-. In her cross-examination, it is specifically stated that she remained conscious even after being injured. At paragraph 34, she has stated that her husband and Tilaku Bind are first cousins (Chachera Bhai). He further states that Deoraj is the son-in-law of the Tilaku Bind, whereas, the appellant Raghunath Bind is the brother-in-law of Tilaku Bind. Balia Bind is the son of TilaKu Bind and Lallan Bind is the son of Raghunath Bind. According to her she remained in the hospital in 15 to 20 days. When she came home, she found that the door of her house was closed. Balia Bind is the son of TilaKu Bind and Lallan Bind is the son of Raghunath Bind. According to her she remained in the hospital in 15 to 20 days. When she came home, she found that the door of her house was closed. She found that her house was in the same condition, as it was before the occurrence took place. 11. P.W.9, Kailash Bind is the informant of this case. He has tried to remove the lacunas in the case by changing the version regarding the manner in which he was injured. He has made out a case that the appellant Tilkau Bind had fired on him when he showed resistance and tried to stop the dacoits from removing the box lying under his bed. At paragraph 7, this witness has specifically stated that there is no dispute with the accused persons. However, he admits that Lallan, Deoraj and Raghunath are relatives of Tilaku Bind. At paragraph 10, he states that he did not know Lallan Bind and other accused persons before or after the occurrence took place. At paragraph 11, he states that there are 50 houses between the house of Kailash Bind and Tilaku Bind. At paragraph 12, it has been specifically stated that his brother’s land is just near the house of Tilaku. After the partition of the land it came to the share of the informant. He states that there is some sort of dispute regarding right of way over the said land, thereby admitting that there was a land dispute between the parties. At paragraph 17, the informant states that the dacoits had broken down his main door in two pieces by means of “Sabbal”. 12. The last important witness of this case is P.W.12, Alok Bind @ Ashok Bind. He is the son of the informant. At paragraph 6, this witness states that he knows Prabhunath, Lallan and Deoraj, as he used to go to play in village Sitampura and Bhikampura as a child. This witness has also changed the manner in which the occurrence took place by saying that the accused persons had assaulted the inmates of the house by using fire arms and a lathi which is not the case as made out in the First Information Report. 13. On the basis of the aforesaid evidence, the Trial Court has convicted the appellants. 13. On the basis of the aforesaid evidence, the Trial Court has convicted the appellants. On perusal of the First Information Report as well as the evidence of both eye witnesses and hearsay witnesses, it would appear that there was a dacoity in the house of the informant, in which fire arms were used by the dacoits leading to injuries on P.Ws.5 and 9. The question before this Court is whether the witnesses have been able to show that these appellants were involved in the said occurrence? 14. The evidence of the hearsay witnesses does not disclose the name of the appellants. It is also apparent from the evidence of the eye witnesses that they have subsequently tried to improve the case as made out in the First Information Report by introducing a story that they could identify the persons who had fired on them, because they were the miscreants responsible for removing the box of the informant from his room. It may be noted that none of the witnesses have stated the source of light by which they could identify the appellants. In fact P.W.5 has in her evidence tried to meet this lacuna by saying that when she saw that some strangers had entered in her house, she lit a lantern which is not the case made out either by her husband or by her sons P.W.9 and P.W.12. Apart from this aspect of the matter, the evidence discloses that a deliberate attempt was made by the informant to suppress the fact that Tilaku Bind was the first cousin of the informant and that the other named accused persons are related being son i.e. Balia Bind and relative of Tilaku Bind. The informant, his wife and son have also tried to suppress the fact that there was a dispute between the two that is the informant and Tilaku Bind. It is only in the cross-examination that the defence was able to elicit that there was a dispute with respect to certain lands between the parties. The informant, his wife and son have also tried to suppress the fact that there was a dispute between the two that is the informant and Tilaku Bind. It is only in the cross-examination that the defence was able to elicit that there was a dispute with respect to certain lands between the parties. The evidence of P.W.5 when she states that she had not met with appellants Lallan Bind, Raghunath Bind and Deoraj Bind before the occurrence had taken place, also indicates that the inclusion of the name cannot be above suspicion, as the lady had no opportunity to know or meet relatives who live at some distance and are not closely related to the informant but relatives of Tilaku Bind through marriage. It is also admitted by P.W.12 that Raghunath Bind, Deoraj Bind and Lallan Bind lived at a distance of 4 to 8 kilometers from the place where the occurrence had taken place. 15. It has been pointed out by the Counsel appearing for the appellants that P.W.9, the informant states in his chief that the main door of the house was broken by “Sabbal” in two pieces, whereas P.W.5 his wife states that when he returned from the hospital she found the main door closed by means of “Sikri”. It has also been pointed out that P.W.5 i.e. the wife of the informant has stated that she remained conscious even after she was injured, whereas, her son at paragraph 8 states that his mother had fainted after receiving injuries. At this juncture, I may state that P.Ws. 5 and 9 were referred to Banaras Hindu University Hospital (B.H.U.) for treatment. According to the case of the prosecution P.Ws. 5 and 9 were examined on 23.03.1999 by the doctor at Banaras Hindu University Hospital (B.H.U.). It has, therefore, been submitted that P.W.5 could not have been examined by the Investigating Officer as per the statement of P.W.12. This Court cannot accept the submission of the learned counsel for the appellants as it cannot be believed that she remained unconscious for such a long period. Learned Counsel for the appellants also refers Exhibit-3 the seizure list, a blood stained rod (Rama) which was allegedly used to break upon the door which was seized from the place of occurrence. Exhibit-3 the seizure list has been proved by P.W.10 Rajesh Kumar Bind, who was a witness to the seizure list. Learned Counsel for the appellants also refers Exhibit-3 the seizure list, a blood stained rod (Rama) which was allegedly used to break upon the door which was seized from the place of occurrence. Exhibit-3 the seizure list has been proved by P.W.10 Rajesh Kumar Bind, who was a witness to the seizure list. Counsel for the appellants submits that there was no occasion for presence of blood on the Rama (Sabbal) seized from the place of occurrence. 16. It has next been pointed out that the attention of the witnesses have been drawn to certain aspects of the prosecution case regarding the manner of occurrence which was disclosed by them in the statement under Section 161 of the Code of Criminal Procedure. The statements could not be recorded because the Investigating Officer was not examined in this case. It is submitted that the Trial Court ought to have referred to the case diary for the purposes of holding whether the statements are correct or not. It has been argued that P.W.1 had not stated before the Investigating Officer that he woke up in the middle of the night, to relieve himself, and had seen the occurrence from behind the hay stack nor had he disclosed the weapons that were carried out by the accused persons and that he had not disclosed that he had identified the accused persons. It is submitted that all these aspects are vital information, and the witness cannot introduce them for the first time in the trial. Thus the appellants have been caused prejudice as these facts cannot be determined during the trial. 17. The attention of P.W.5 has been drawn to certain aspects of her evidence which she has stated in the Court for the first time. It has been suggested to her that she had not stated that the miscreants fired when there was resistance while they were removing the box from her room in her statement under Section 161 Cr.P.C. This aspect of the matter becomes important as the statement made in Court by P.W.5 is not in consonance with the statement of the informant, and the informant has not made any such allegations in the First Information Report. This is a case that has been introduced during the trial and therefore, it has to be rejected. This is a case that has been introduced during the trial and therefore, it has to be rejected. Therefore, this Court concludes that the Trial Court committed an error by not looking into the case diary as envisaged under Section 172(2) of the Code of Criminal Procedure which reads as follows: “172- Diary of proceedings in investigation- (1) xxx xxx xxx (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.” 18. The provisions of Section 172(2) require that the Court may look into the diary not for the purpose of the contents thereof as evidence rather to use it to aid the Court especially in a case, where the I.O. has not been examined. 19. The High Court has already held that this is a proper proceeding in such cases where the Investigating Officer has not been examined in the case of Yadunandan Mandal and others versus State of Bihar, 2002(3) PLJR Page 779 (D.B.) and in the case of Nagina Khatoon and two others versus State of Bihar 2003(3) PLJR Page 190 (D.B.). 20. Lastly, this Court will refer to the medical evidence that is Exhibits 2, 2/1, 4 and 4/1. Exhibit-2 is the injury report of Kailash Bind, P.W.9 which indicates that he received a lacerated injury on his left arm which led to fracture of radius bone. There is also an injury muscle deep in the palm of the right hand which according to the doctor was caused by hard blunt substance. 21. P.W.5 was also examined by the doctor and he found a multiple injury and charring on the forehead as well as a fire arm injury on the upper arm of the lady. Apart from which the doctor found abrasion above left eye. The Court’s attention has been drawn to two aspects regarding the injury report; firstly submitted that the injury report has not been duly proved as P.W.8 who has proved this document as Advocate’s clerk, claims to identify the writing of doctor Zafarullah who has examined the two injured persons. It would appear from the evidence of P.W.8 that doctor Zafarullah has left the country and no long practices in India. It would appear from the evidence of P.W.8 that doctor Zafarullah has left the country and no long practices in India. It is apparent from the evidence that P.W.8 Umar Khetan Ansari has not been able to disclose any special circumstances by which he can establish that had has special knowledge and had the opportunity to be closely associated with him and, therefore, can identify the writing and signature of doctor Zafarullah. Exhibit 4 and 4/1 which has been produced in Court i.e. examination of the injured at the hospital in Banaras. However, the injury report has not been disclosed that Kailash Bind had received serious injuries inasmuch as his hand had to be amputed. It also appears that the lady had serious injuries in her face which perhaps has hampered her eye sight. 22. P.W.13 Mangru Prasad has proved Exhibit 4 and 4/1 is an Advocate’s Clerk. In the cross-examination, he states that he had no occasion to work with the doctor who had prepared Exhibit 4 and 4/1. In the circumstances aforesaid, this Court has no option but to hold that injury reports have not been proved by the prosecution. It may be noted that it appears that no attempt was made to notice the doctor who had examined the injured persons at Banaras. 23. The Counsel appearing on behalf of the informant has submitted that the court below has observed that both P.Ws.5 and 9 were badly injured during the occurrence when they appeared in dock. It has been found that the left arm of the informant had to be amputed and that his wife is almost blind because of the injuries of the fire arm. The observation of the Trial Court is undoubtedly to be respected and even though the injuries had not been properly proved. However, it would be necessary to prove that the said injuries were inflicted during the occurrence. 24. After considering the evidence, this Court concludes that it cannot be denied that an occurrence took place in which some miscreants entered the house of the informant, and committed dacoity. However, from the tenor of the evidence it is apparent that the appellants were dragged in the occurrence. They are not only closely related, but are residents of the same village, having their agricultural land adjacent to each other, over which there is a dispute, thus their false implication cannot be ruled out. However, from the tenor of the evidence it is apparent that the appellants were dragged in the occurrence. They are not only closely related, but are residents of the same village, having their agricultural land adjacent to each other, over which there is a dispute, thus their false implication cannot be ruled out. Especially, in view of the evidence of the informant who has suppressed this fact and it was only elicited in the cross-examination. Besides which this Court has found that it was a dark night, the source of light has not been disclosed by any of the witnesses in this case. The informant has tried to improve upon the prosecution case by stating that he was able to identify the appellants Balia Bind and accused Tilaku Bind as the two persons had fired on his wife and him has to be disbelieved as this fact has not been disclosed in the First Information Report. The case of the prosecution and subsequent denial in the chief regarding the relationship between the parties and the genesis of the occurrence indicates that there is a deliberate attempt on behalf of the prosecution to involve the appellants with whom, he admittedly has some grudge. The contradictions in this case which have been discussed above also indicate that the prosecution is trying to improve their case step by step and explain the obvious lacunas in this case. All these facts lead to this Court to conclude that the prosecution has not been able to prove that the appellants were the persons who were involved in the dacoity. 25. This appeal is thus, allowed. The appellants are discharged from their liabilities of the bail bond. Appeal allowed.