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2013 DIGILAW 51 (PAT)

Pawan Lal @ Pawan Kumar Lal v. State Of Bihar

2013-01-10

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT 1. Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and sentence order dated 21.6.2001 passed by learned Sessions Judge, Samastipur in Sessions trial no. 188/1995 by which and whereunder he convicted the appellant under section 395 read with section 397 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years under section 395 read with section 397 of the Indian Penal Code. 3. P.W. 16,Ramchandra Mallik, gave his fardbeyan on 2.10.1992 at about 12.30 p.m. to the ASI Hasanpur police station to this effect that in the intervening night of 1/2nd October, 1992 while he was sleeping in his house ten to fifteen persons having armed with lathi and pistol came there and started searching his brother, namely, Laxmi Mallik and after that they entered into the house of Laxmi Mallik but they could not succeed to trace out the aforesaid Laxmi Mallik and they committed loot in the house of Laxmi Mallik. He further stated that some miscreants opened door of his house and flashed torch and in the light of the aforesaid torch, he identified the appellant and three others. He further stated that this appellant was carrying lathi at the time of alleged occurrence. He further stated that he, out of fear, fled away from his house and hide himself in the house of Laxmi Mallik and while he was fleeing away, one unknown dacoit assaulted him with lathi and dacoits also committed dacoity in the house of one Rambilash as well as in his house and after committing dacoity, dacoits decamped with looted booty and when alarm raised by him as well as his other family members, witnesses including Najo Paswan reached there. In the aforesaid incident of dacoity, his nephew Vijay Prakash Mallik P.W. 13 sustained injury and his nephew also disclosed that he identified appellant by his voice. The nephew of this witness sustained fire arm injury said to be fired by one named accused, namely, Ramsewak Rai. The nephew of the witness also claimed to have identified two FIR named accused persons. 4. The nephew of this witness sustained fire arm injury said to be fired by one named accused, namely, Ramsewak Rai. The nephew of the witness also claimed to have identified two FIR named accused persons. 4. On the basis of fardbeyan of P.W. 16, Hasanpur P.S. case no.145/1992 under sections 395 and 397 of the Indian Penal Code was registered against the appellant and others and accordingly, formal first information report was drawn against the appellant and others. The matter was investigated and charge sheet was submitted. 5. Cognizance of the offence was taken and accordingly, case of the appellant was committed to the court of sessions and he was put on trial. The appellant was charged for the offences punishable under section 395 read with section 397 of the Indian Penal Code but he denied charge and claimed to be tried. 6. The prosecution examined altogether 17 witnesses and also got exhibited formal first information report as exhibit 1, endorsement on fardbeyan as exhibit 2, signature of P.W. 16 as exhibit 3 and signatures of P.W 13 and Ram Bilash Paswan on fardbeyan as exhibits 3/1 and 3/2 respectively. The statement of the accused was recorded under section 313 of the Cr.P.C in which he denied the prosecution story. 7. The learned trial court, having considered the materials available on record, convicted the appellant having relied upon the statements of P.W. 16 and P.W. 13. 8. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that except P.W. 16 and P.W. 13, not a single witness claimed to have identified the appellant committing the alleged crime and so far as P.W. 13 is concerned, he claimed to have identified the appellant by his voice and so far as P.W. 16 is concerned, he claimed to have identified the appellant in the light of torch said to be flashed by the dacoits at the time of alleged occurrence. He submitted that the aforesaid identification is doubtful and, as a matter of fact, the appellant has been roped in this case at the instance of one Najo Paswan who had inimical term with the appellant. He submitted that the aforesaid identification is doubtful and, as a matter of fact, the appellant has been roped in this case at the instance of one Najo Paswan who had inimical term with the appellant. He further submitted that unfortunately, relevant documents of enmity of Najo Paswan and the appellant could not be brought on record in course of trial by the defence but the evidences available on record suggest this fact that appellant has falsely been implicated in this case. 9. On the other hand, learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order submitting that almost all material witnesses have supported the factum of dacoity and P.W. 13 and P.W. 16 have claimed to have identified the appellant committing dacoity. 10. On perusal of the record, it would appear that altogether 17 witnesses have been examined, out of whom, P.W. 1 Rama Shankar Thakur is a formal witness who proved formal first information report as exhibit l and he has stated nothing in respect of the alleged occurrence. P.W. 2 Sudin Mallik, P.W. 3 Ram Bilash Bansfor. P.W. 7 Rekha Devi and P.W 8 Binda Devi have been declared hostile. 11. P.W. 4, Nathuni Mallik and P.W.5, Ganesh Mallik have been tendered by the prosecution and both witnesses have stated in their cross-examination that appellant had not participated in committing the alleged crime. P.W. 6 Gaya Pd Rai is also formal witness who has proved endorsement on farbeyan. Similarly, P.W. 9, Vijay Kumar, P.W. 10, Md Mojibur Rahman and P.W 11, Anjani Kumar Jha are formal witnesses and they have stated nothing in respect of the alleged occurrence. 12. P.W 12, ASI, Sohan Chaudhary has stated that he took the charge of investigation of the case and recorded the statements of some witnesses but before completion of investigation, he handed over the charge to another police officer. 13. P.W. 13, Vijay Prakash Mallik has stated that at the time of alleged occurrence, he was sleeping in verandah of his house and in the meantime, dacoits came there and assaulted him. He identified one Vyas Nandan Rai and this appellant. He stated in his examination-in-chief that he identified the appellant and others in the light of torch. He further stated that dacoit- Ram Sewak Rai opened fire causing fire arm injury to him. He identified one Vyas Nandan Rai and this appellant. He stated in his examination-in-chief that he identified the appellant and others in the light of torch. He further stated that dacoit- Ram Sewak Rai opened fire causing fire arm injury to him. He further stated that dacoits committed dacoity in the house of Ramchandra Mallik and Sonelal. At para 4 of his examination-in-chief, he stated that he identified appellant by his voice because appellant was well known to him from before. Being cross-examined by the defence, he again admitted in para 8 of his cross-examination that he identified the appellant by his voice. At para 10 of his cross-examination he admitted that after 25 to 30 minutes of the alleged occurrence Najo Paswan came at the place of the occurrence. 14. P.W 14 Laxmi Devi is the wife of Laxmi Mallik in whose house, dacoity had taken place and according to the prosecution case as well as statements of the witnesses, dacoits were searching Laxmi Mallik who is husband of this witness. This witness also supported the factum of dacoity and at para 2 of examination-in-chief, she stated that P.W 13 and P.W 16 had identified dacoits and the aforesaid witnesses had disclosed the names of the appellant and other dacoits in the morning after the alleged occurrence. 15. P.W. 16, Ramchandra Mallik, is the informant of this case and he has too supported the factum of dacoity and claimed to have identified the appellant in course of dacoity but he frankly admitted in his examination-in-chief that he had identified the appellant and other dacoits while dacoits were flashing torches. At para 15 of cross-examination, he has admitted that appellant was well known to him from before. 16. The perusal of the evidences of the prosecution witnesses show that prosecution has succeeded to prove the factum of the dacoity in the houses of P.W. 13, P.W. 16 and P.W.3 and factum of dacoity has not been denied by the defence also. The defence has only challenged the so-called false implication of the appellant and it is the defence of appellant that he had not participated in the alleged crime rather he was implicated in this case at the instance of one Najo Paswan who had inimical term with him. The defence has only challenged the so-called false implication of the appellant and it is the defence of appellant that he had not participated in the alleged crime rather he was implicated in this case at the instance of one Najo Paswan who had inimical term with him. Although no document has been adduced on behalf of the appellant to show his enmity with the aforesaid Najo Paswan but one thing is very clear from the materials available on the lower court record that the alleged occurrence took place in the night of 1/2nd October, 1992 and fardbeyan was recorded on 2.10.1992 at 12.30 p.m. Furthermore, it is clear from perusal of the statements of P.W 14 that P.W. 13 and P.W 16 disclosed the names of the appellant and other dacoits in the morning after alleged occurrence and before the aforesaid disclosure, the above stated Najo Paswan had already reached at the place of the occurrence which is evident from para 10 of cross-examination of P.W.13. There is nothing in the depositions of P.W. 13 and P.W.16 that they disclosed names of the appellant and other dacoits to P.W. 14 just after the alleged occurrence, therefore, disclosure of names of appellant and other dacoits after such long period creates doubt about genuiness of the prosecution case and it supports the contention of learned counsel for the appellant that this appellant had falsely been implicated in this case Moreover, it is the case of identification of two witnesses but according to the statements of the prosecution witnesses itself, one witness could identify the appellant by his voice whereas another witness could identify the appellant in the light of torch which had been flashed by the dacoits. So, in my view, the aforesaid evidence appears to be a very weak type of evidence and the appellant is entitled to get benefit of doubt. 17. On the basis of the aforesaid discussions, this criminal appeal is allowed. The judgment of conviction and sentence order dated 21.6.2001 passed by learned Sessions Judge in Sessions trial no. 188/1995 is, hereby, set aside. Accordingly, appellant is acquitted of the charge. The appellant is on bail. He is discharged from the liability of bail bonds. Appeal allowed.