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2013 DIGILAW 399 (PAT)

Mannan @ Abdul Mannan v. State of Bihar

2013-03-20

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. Originally this criminal appeal was filed by three appellants but during pendency of the appeal two appellants, namely, Mannan @ Abdul Mannan and Mukhtar Buchar died and. accordingly, the proceeding of instant appeal was abated against them and this appeal was heard only for the appellant No.3. namely, S.k. Siddique @ Siddicaquea. 3. The above stated appellant was convicted for the offence punishable under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years for the above stated offence by the impugned judgment of conviction dated 20.12.2000 and order of sentence dated 21.12.2000 passed by IInd Additional Sessions Judge, Katihar in Sessions Case No. 345 of 1996. By the aforesaid impugned judgment of conviction and order of sentence, the other accused including original appellants No. 1 and 2 were also convicted for the offences punishable under Sections 395 and 412 of the Indian Penal Code. 4. In brief, the prosecution case, is that PW 7, Kapil Deo Prasad Sah gave his fardbeyan to officer in charge of Barsoi Police Station on 17.05.1996 at 04:00 a.m. at his door to this effect that on the same day at about 03:00 a.m. some dacoits entered into his house and committed dacoity. In course of dacoity, he identified the appellant and some others in the light of Lalten and in the light of torches flashed by the dacoits. 5. On the basis of aforesaid fardbeyan, Barsoi P.S. Case No. 45 of 1996 under Section 395 of the Indian Penal Code was registered and accordingly, formal first information report was drawn up against the appellant and others. 6. PW 9, Sanjay Kumar Thakur, the then officer in charge of Barsoi Police Station recorded the fardbeyan of PW 7 and took charge of investigation. He inspected the place of occurrence, recorded the statements of prosecution witnesses, seized some looted articles from the house of one co-accused, put the seized articles as well as some co-accused on Test Identification Parade and after completion of investigation, submitted charge-sheet 1 for the offences punishable under Sections 395 and 412 of the Indian Penal Code against the appellant and some others. On being receipt of charge-sheet, the cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way. 7. The appellant. Sk. Siddique @ Siddicaquea along with six other accused were put on trial and accordingly, they were jointly charged for the offence punishable under Section 395 of the Indian Penal Code whereas one co-accused, namely, Sheikh Kanha was, separately, charged for the offences punishable under Sections 395 and 412 of the Indian Penal Code. 8. In course of trial, prosecution examined, altogether, ten witnesses and also exhibited some documentary evidences. The statements of appellant and other accused were recorded under Section 313 of the Cr PC in which they denied the prosecution story and claimed their false implication. No evidence was adduced on behalf of the appellant and other accused in support of their defence but from perusal of statements recorded under Section 313 of the Cr PC as well as trends of cross-examination of prosecution witnesses it appears that defence of the appellant and other accused was their false implication. 9. The learned trial Court having considered and analyzed the materials available on the record convicted the appellant and three others for the offence punishable under Section 395 of the Indian Penal Code whereas one co-accused, namely. Md. Muslim was acquitted of the charge and furthermore, co-accused. Sheikh Kanha was convicted for the offence punishable under Section 412 of the Indian Penal Code also. The learned trial Court sentenced the appellant in the manner as stated above. 10. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that except the PW 7. none of the prosecution witness claimed to have identified the appellant and the appellant was not put on Test Identification• Parade. He further submitted that nephew of the appellant was put on Test Identification Parade but prosecution witnesses could not succeed to identify him and, therefore, even if it assumed to be true that appellant was identified by PW 7 at the time of commission of dacoity, then also, it is a case of single identification and on the basis of single identification, it is unsafe to convict the appellant. He further submitted that according to prosecution case itself, the alleged dacoity was committed in dark night and PW 7 claimed to have identified the appellant in the light of lalten but the aforesaid lalten was neither seized nor produced before the trial Court by Investigating Officer and. therefore, source of identification is also doubtful. He also submitted that appellant, himself, surrendered before the trial Court on 25.05.1996 and remained in jail custody till 11.11.1998 during course of the trial and after that when the appellant was convicted by the learned trial Court, he was taken into custody by the trial Court on 20.12.2000 and remained in jail custody till 28.02.2002 when this Court granted bail to the appellant during pendency of this appeal. So, the appellant has already spent more than four years in jail custody. He further pointed out that at the time of conviction, the appellant was aged about 66 years and now he has already crossed more than 76 years and, therefore, even if appellant is found guilty, his sentence should be reduced up to the period already undergone by him in course of trial as well as during pendency of this appeal. 11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence submitting that PW 7, the informant of this case, claimed to have identified the appellant committing dacoity and just after the alleged occurrence police reached there and PW 9 recorded the fardbeyan of, PW 7 and in the aforesaid fardbeyan. PW 7 disclosed the name of the appellant and, therefore, the aforesaid evidence is sufficient to prove the guilt of the appellant and the learned trial Court rightly convicted and sentenced the appellant. 12. Admittedly, except PW 7, none of the prosecution witness claimed• to have identified the appellant committing the alleged dacoity and the rest prosecution witnesses stated that they learnt the name of appellant from PW 7. 13. According to PW 7 as well as Exhibit -1/1, the fardbeyan of the informant, the alleged dacoity took place at 03:00 a.m. on 17.05.1996 and furthermore, Exhibit 1/1 reveals that fardbeyan of PW 7 was recorded on the same day at 04:00 a.m. and, therefore. Exhibit-1/1 reflects that the fardbeyan of PW 7 was recorded within one hour of the alleged dacoity. Exhibit-1/1 reflects that the fardbeyan of PW 7 was recorded within one hour of the alleged dacoity. Exhibit-1/1 further discloses that in his fardbeyan, PW 7 claimed to have identified the appellant when the cloth from his face was got off at the time of commission of the dacoity. The PW 7, specifically, stated that when witnesses came there he disclosed about the incident. 14. PW 1, Dilip Kumar Sah @ Pradip' Kumar Sah is son of PW 7 and this witness also supported the factum of dacoity. Although, this witness stated that PW 7 disclosed the name of dacoits before him but the statement of PW 2 does not contain the name of the appellant. 15. PW 2, Shivrati Devi is wife of PW 7 and this witness also does not name the appellant nor claimed to have identified the appellant. 16. PW 3 and PW 4 came on the place of occurrence after the alleged dacoity and both the witnesses stated that PW 7 disclosed the name of some dacoits before them but PW 3 also could not disclose the name of the appellant and so far as PW 4 is concerned. he stated that PW 7 had disclosed the name of the appellant and other, Similarly. PW 4 is also another son of PW 7 and he does not claim himself to be eyewitness of the alleged occurrence and stated that he was sleeping in his house and woke up on noise and when he went near his father, his father disclosed the name of the dacoits including the appellant and some others. 17. PW 6 is daughter in law of PW 7. This witness also supported the factum of dacoity and stated that her father in law (PW 7) had disclosed the name of the appellant and some others. 18. PW 7 is the informant and this witness stated that he identified the appellant in the light of lalten as well as in the light of torches flashed by the dacoits. Although, defence tried to establish the enmity between the appellant and this witness and put a specific question before this witness that prior to the alleged occurrence, one supply inspector had lodged the case against him and in the aforesaid case, the brother of appellant had deposed against PW 7 but this witness flatly refused the aforesaid question. Although, defence tried to establish the enmity between the appellant and this witness and put a specific question before this witness that prior to the alleged occurrence, one supply inspector had lodged the case against him and in the aforesaid case, the brother of appellant had deposed against PW 7 but this witness flatly refused the aforesaid question. Admittedly, defence did not bring any document to prove the enmity between PW 7 and appellant. Therefore, I find nothing in the deposition of this witness to disbelieve his statement. 19. PW 8 is a formal witness whereas PW 9 is Investigating Officer who conducted the investigation of this case and submitted charge-sheet. Similarly, PW 10 is also a formal witness. 20. On perusal of aforesaid evidences. I find that prosecution succeeded to prove the involvement of the appellant in the alleged dacoity• and the learned trial Court rightly convicted the appellant for the aforesaid offence. 21. So far as order of sentence is concerned, admittedly, at the time of conviction, the appellant was aged about 66 years and the impugned judgment of conviction was pronounced in the year 2000 and, therefore, it is apparent from the aforesaid fact that the appellant has already crossed more than 76 years. Furthermore, except the present case, prosecution did not bring any material to show this fact that the appellant was a habitual offender. Furthermore. I find that appellant has al. ready suffered a lot remaining in jail custody for more than four years. Moreover, the alleged occurrence took place in the year 1996 and much time has already elapsed after the commission of the aforesaid offence and. Therefore, in my view, the end of justice will be met, if the sentence of appellant is reduced up to the period already undergone by him in course of trial as well as during pendency of this appeal. 22. Accordingly, the sentence of the appellant is reduced and he is sentenced to the period already undergone by him in course of trial as well as during pendency of this appeal. 23. On the basis of aforesaid discussions, this criminal appeal stands dismissed with modification in sentence order. Appeal dismissed.