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Jharkhand High Court · body

2015 DIGILAW 708 (JHR)

Md. Zakir Ansari v. State of Jharkhand

2015-06-19

RATNAKER BHENGRA

body2015
JUDGMENT : Ratnaker Bhengra, J. This Criminal Appeal is directed against the judgment of conviction dated 20.09.2002 and order of Sentence dated 20.09.2002 passed by the learned Additional District & Sessions Judge, Fast Track Court-III, Hazaribagh in S.T. No. 546 of 1998 whereby the above named appellant has been found guilty and convicted and sentenced to undergo rigorous imprisonment for five years under Section 412 of the Indian Penal Code. 2. The prosecution case in brief as per the fardbayan of the informant Md. Irfan, P.W. 4 is, the then Branch Manager of State Bank of India, Barsot Branch, P.S. Barhi, District Hazaribag made on 10.03.1998 at about 1 p.m. in the office of his Branch before S.I. Uday Prasad Singh the then Officer In-Charge Barhi P.S. That on the same day about 10 a.m. the bank opened and the work started in the bank at about 10.30 a.m. He was working in his chamber. The normal transaction of the bank is about 3-4 lacs per day. On Saturday the 7th March 1998 the cash balance of the bank was Rs. 24,244.10/- and on Monday i.e. on 09.03.1998 the balance in the Bank was 2,65333.10/- paisa and on that day i.e. on 10.03.1998, he has taken out Rs. 68,833.10/-from the strong room and Rs. 26,781/-was deposited in the bank. There was Rs. 95614.10/-with the cashier out of which Rs. 50,850/-was paid on that day and Rs. 44,764.10/-balance remained and after deducting Rs.1/-, total amount with the cashier was Rs. 44,763.10/- and Rs. 19,6500/- was kept in the safe volt. The normal business of the bank was going on in the meantime suddenly at about 12 P.M. of day he heard some halla gulla in the hall. He came out from his chamber and saw that one person has snatched the gun from the bank guard and was pointing the gun on the bank guard. One person had entered the counter of cashier and taking money. Third man was standing outside the counter and the fourth man was standing at the door and preventing the customers from going out from the bank. In the meantime the dacoits after taking the money in the bank from the cashier came to him and asked who is the manager. Third man was standing outside the counter and the fourth man was standing at the door and preventing the customers from going out from the bank. In the meantime the dacoits after taking the money in the bank from the cashier came to him and asked who is the manager. Somebody told about him and on getting informed that he is the manager, dacoits pointed pistol upon him and coerced him to go in the strong room and take out the money and demanded the key. The informant said that key was not with him, it was kept inside. Then he placed the pistol at his neck, brought him to his chamber, took out the key from the chamber opened the door of the strong room and then got the safe volt kept there opened and took out Rs. 1,96,500/- from the safe volt and kept that money in the same bag. Two dacoits went inside the strong room with him and they asked him to sit with face towards the wall after taking the money. The informant sat over there. Both the dacoits came out in the hall and commanded to go upon which all the four culprits went out. When the informant heard sound of motorcycle then he came out from the strong room and came in the hall and saw that the dacoits have fled away. Then he and other staff of the Bank came out and tried to inform police station telephonically from post office. They also tried to send information to other places but the telephone was out of order then they sent information to police station from the post office that the dacoits have taken away DBBL gun of 12 bore of bank guard bearing no. SV8600362 manufactured by Indian Ordinance Factory,10 live cartridges along with the looted money. The dacoits had come from towards east and they also fled away towards east. This fact is being told by the persons who have seen them coming and going. Dacoits had come on a red motorcycle without number plate and a black Rajdoot motorcycle. The informant gave the description of dacoits as follows:- The dacoit who has looted the gun from the bank guard was a lean and thin man of about 5' height and his colour was sawla. He was wearing full bushirt of Doria with green and black check and a khaki pant. The informant gave the description of dacoits as follows:- The dacoit who has looted the gun from the bank guard was a lean and thin man of about 5' height and his colour was sawla. He was wearing full bushirt of Doria with green and black check and a khaki pant. He had black hair which he had combed towards behind. He had small mustache he was aged about 30-32 years. He had coerced Bank Guard to lay down in the corridor. He had also coerced Chowkidar Chatu Singh deputed by the police at the bank to lay down in the corridor and he had given looted gun to his associates who was standing out side and was a man of short height with sawla colour and the same man had given a bag to the cashier to fill it with cash. The second dacoit who had entered in the strong room was a black colour boy with quarter to 6' height. He was a lean man having small hair and small moustache and he was wearing full sleeve shirt of white and blue check and red sweater and wrapping a muffler at his neck which was of merun colour. He was about 20-22 years. The third dacoit who had taken money from the cashier was aged about 20-30 years having a fair complexion and a wide face and his height was about 5'/2". He was wearing blue pants and small checked shirt and holding a spring knife in one hand and a bomb in another hand. The fourth dacoit was about 25-30 years of age and of a normal height and his colour was sawla, was keeping short hair and wearing full shirt of green colour and black pant. He was having a pistol and was commanding everybody to remain inside. The informant could not see the fifth dacoit properly who was standing out side. The cash which was kept in the safe volt and with the cashier was sealed with seal of the bank and signed by the cashier whose name was A. Kumar and the Branch Code 8149 was written on the slip. Cashier had also some lose bundles. The informant further said that he, chowkidar Chhatu Singh and other staff working in the bank can identify the culprits if they are brought before them again. Cashier had also some lose bundles. The informant further said that he, chowkidar Chhatu Singh and other staff working in the bank can identify the culprits if they are brought before them again. The informant mentioned at the end of his written statement that it was found correct and then signed it. 3. The officer-in-charge Barhi immediately started investigation and forwarded the fardbayan to police station for instituting case under Section 395 IPC. Sri. B.K. Singh, A.S.I Barhi police station at the relevant time registered the fardbayan as Barhi P.S. case no. 33/98 dated 10.03.98 under Section 395 IPC and confirmed the investigation started by Officer-in-charge S.I. Uday Prasad Singh. 4. The police after concluding the investigation submitted charge sheet no.66/98 dated 8.6.98 against accused Zakir Ansari aforesaid and one Jagdish Yadav, Jainul Ansari, Kishun Sao and Rameshwar Sao for the offence under Section 395/412 IPC. 5. The C.J.M. Hazaribagh on receipt of the charge sheet took cognizance for the offence under Section 395/412 I.P.C. 6. Then the Sessions Judge Hazaribagh on receipt of the record registered it as S.T. No. 546/98. 7. It is not out of place to mention here that out of the total five accused persons charge sheeted all except accused Zakir Ansari aforesaid according to order sheet dated 22.4.99 absconded from Koderma jail Hazat and hence the case of accused Zakir Ansari was separated from other accused persons and proceeded further and separate record was ordered to be issued for remaining four accused persons who has absconded from Koderma jail as such in this case only accused Zakir Ansari is facing trail. 8. Sri A.K. Singh the then 1st Additional Session Judge Hazaribagh framed charge for the offence under section 395 and 412 IPC against accused Zakir Ansari on 10.08.99 and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. Hence the trial. 9. The defence case as it appears from statement of accused person recorded under Section 313 Cr. P.C. is that he is innocent and has committed no offence. 10. The prosecution had examined following witnesses and proved following documents:- P.W.1- Vijay Nandan Ydav. He is witness of the seizure. P.W.2-Ramdeo Yadav. He is also witness of the seizure. P.W.3-Ram Chander Sao. He is generator operator of generator set in the bank. He is witness to the occurrence. P.W.4- Md. Irfan. 10. The prosecution had examined following witnesses and proved following documents:- P.W.1- Vijay Nandan Ydav. He is witness of the seizure. P.W.2-Ramdeo Yadav. He is also witness of the seizure. P.W.3-Ram Chander Sao. He is generator operator of generator set in the bank. He is witness to the occurrence. P.W.4- Md. Irfan. He is informant of this case. P.W.5-Ashok Kumar Bharti. He is assistant in State Bank of India, Hazaribagh. P.W.-6 Avinash Kumar. He is assistant in Demotand Branch of State Bank of India but on the relevant date he was posted in Barsot Branch. P.W.7-Suleman Kuzur. He is security guard of S.B.I. Barsot Branch. P.W.8-Chotu Singh. He is digwar of the villager and was on deputed to S.B.I of Barsot on the relevant date. P.W.9-Om Prakash Das. He is sub-Inspector police posted in Barhi. P.S. He has brought material exhibit, i.e. seized currency note before this Court, from the police station on 28.06.2002. He has proved material ext. 1 series, 2 series. P.W.10-Uday Prasad Singh. He is Investigating Officer of this case. The prosecution has proved following documents:- Ext. 1. This is signature of Vijay Nandan Yadav on seizure list ext. 4/2. Ex.t. 1/1. This is signature of Vijay Nandan Yadav on Ext.4/3. Ext. 1/2. This is signature of Ramdeo Yadav on seizure list Ext. 4/2. Ext. 1/3. This is signature of witness Ramdeo Yadav on seizure list Ext.4/3 Ext. 2. This is fard bayan of informant which is basis of this case. Ext. 3.This is endorsement on the fard bayan by which the fard bayan was forwarded to Barhi P.S. for instituting case. Ext. 3/1. This is endorsement on the fard bayan by which the fard bayan was registered as police case and investigated. Ext. 4.This is seizure list. This documents shows that police has seized following articles from the house of accused Jagdish Yadav on 11.3.99 at 6-00 hours at village Dandadih P.S. Jainagar, District-Koderma. (i) Rs. 50,000/-in cash stealthily kept in a maroon colour striped muffler wrapped around the waist and covered with shirt of denominations -100x400=40,000/-, 50x200=10,000/-all the bundles were having slip signed by Cashier A. Kumar sealed and signed by cashier A.Kumar bearing Bank code no. 8149 of Barsot Branch. (ii) One country made pistol 81/2” in length loaded with. 315 bore live cartridge kept in the waist of accused Jagdish Yadav and another similar cartridge kept in the pocket of under wear cloth. 8149 of Barsot Branch. (ii) One country made pistol 81/2” in length loaded with. 315 bore live cartridge kept in the waist of accused Jagdish Yadav and another similar cartridge kept in the pocket of under wear cloth. Ext. 4/1. This document shows that police recovered Rs. 30190/-detailed in the seizure list kept stealthily in a muffler in the house of Kisan Sao on 11.3.1998 and a country made pistol loaded with .315 bore live cartridges. Ext. 4/2. This document shows that following articles were recovered from the house of accused Zakir Ansari situated in Vill-Dasaro on 11.03.98 at 10.13 hours. (i) Two bundles of 100 notes of Rs. 100/-amounting Rs. 20,000/-plus one bundle of Rs. 50 note amounting Rs. 5000/-Five bundles of Rs. 100/-notes each total Rs. 20,000/-only were recovered from tin box kept in a room situated towards west of the house of accused Zakir Ansari with eastern face. All the bundles were sealed and signed by A.Kumar and mentioning code no. 8149 of Barsot Branch. (ii) A black colour Rajdoot motorcycle bearing No. W.B. 01C2496. Ext. 4/3. This is seizure list which shows an article recovered from accused Zainul Ansari on 11.3.98 at 14 hours the details of this document is not relevant for this case as in this judgment only accused Zakir Ansari is being part with. Ext.4/4. This is seizure list which shows that the articles detailed in the list have been recovered from accused Rameshwar Sao on 12.03.98. 11. The prosecution has proved following material exhibits case material Ext.1 and 1/A. There are two bundles of 100, Rs. 100/- notes amounting Rs. 20,000/- which is material Ext.2 There is one bundle of 100 Rs. 50 note amounting to Rs.5000/- which is Ext 3/3D. There are five bundles of 100 note each of Rs.10 denomination amounting to Rs. 5000/.The material Ext. has been returned to P.W.9 who has brought them to the Court for keeping in safe. All the material Ext. bear signature of witness A. Kumar and code no. 8149 of S.B.I, Barsot Branch. 12. Defense has examined only one witness. He is D.W.1 Abdul Zabar Ansari. He is father of accused Zakir Ansari. He has deposed that the police has taken Rs. 30,000/-from his home and seized motor cycle W.B.01C2496 which belongs to him. He also says that the money seized by the police belongs to him. 13. 8149 of S.B.I, Barsot Branch. 12. Defense has examined only one witness. He is D.W.1 Abdul Zabar Ansari. He is father of accused Zakir Ansari. He has deposed that the police has taken Rs. 30,000/-from his home and seized motor cycle W.B.01C2496 which belongs to him. He also says that the money seized by the police belongs to him. 13. Under the circumstances the point for consideration before this Court is has the prosecution proved its case beyond doubt. 14. Since none of the prosecution witness who were present in the bank at the time of the dacoity have identified accused Zakir Ansari and the case against him u/s 395 remained doubtful and not proved beyond doubt, only the charge u/s 412 remained. 15. Hence the charge for the offence under Section 412 IPC against accused Zakir Ansari for which he was charged for retaining the looted Rs. 30,000/-which was the property of State Bank of India, Barsot Branch remains. Ext. 4/2 is the seizure list which is relevant for accused Zakir Ansari, for according to this document police recovered Rs. 30,000/-kept in a tin box in a room having the east face situated towards west of the house of accused Zakir Mian situated in village Dasaro P.S. Markachoo District-Koderma on 11.3.98 at 3 hours. As per following details 2 bundles of 100 notes of Rs. 100 amounting Rs. 20,000/- one bundle of 100 Rs. 50 notes amounting Rs. 5000/-five bundle 100 notes of Rs. 10 note amounting to Rs. 5000/-with a total of Rs. 30,000/-was seized. All the bundles were containing a slip on which there was code seal of Barsot Branch code no. 8149 and signature of A. Kumar. A motor cycle was also seized. Seizure of motorcycle is not relevant because it belongs to his father and it was returned to him subsequently. However, the seizure was made in presence of witnesses Vijay Nandan Yadav whose signature is in Ext.1 and Ramdeo Yadav whose signature is in Ext.1/2. Vijay Nandan Yadav is P.W.1. He admits his signature on seizure list in para 3 of his evidence but he says in para 2 that he had signed on plain paper and in para 4 that nothing was recovered in his possession. Vijay Nandan Yadav is P.W.1. He admits his signature on seizure list in para 3 of his evidence but he says in para 2 that he had signed on plain paper and in para 4 that nothing was recovered in his possession. P.W.2 Ramdev Yadav admits his signature on seizure list in para 3 of his evidence but he says that he has signed on a plain paper and nothing was been recovered in his presence. 16. Meaning thereby P.W.1 Vijay Nandan Yadav and P.W.2 Ramdeo Yadav are the witnesses in presence of whom it is said that looted money was recovered from the house of accused Zakir Ansari, however they have not supported the factum of recovery in their presence. However, P.W.10 Sri Uday Prasad Singh investigating Officer says in para 8 that he has recovered Rs. 30,000/-from the house of accused Zakir Ansari and prepared seizure list. The factum of recovery is also admitted by D.W.1 Abdul Zabar Ansari who is father of accused Zakir Ansari. He says that Barhi police has recovered Rs. 30,000/-from his house and black Rajdoot motorcycle and he was not present at that time. The money was kept in a box in his house which was locked. Police broke open the lock and seized the money but that money was not looted money from the bank. The money belonged to him. The motorcycle belonged to him and has been returned to him by the order of the Hon'ble Court. In nutshell the fact that a sum of Rs. 30,000/-has been recovered from the house of accused Zakir Ansari stands corroborated even by the defense witness. As such there remains no doubt in the fact that sum of Rs. 30,000/-was recovered from the house of accused Zakir Ansari. 17. Now it is to be determined that whether this money was money of loot or not. Prosecution claims that on 01.04.1998 Abdul Zarar Ansari filed petition for returning of his motorcycle, in which it was mentioned that police made a wrong seizure list that a sum of Rs. 30,000/-was recovered. Meaning thereby in that petition he did not claim about the seizure of Rs. 30,000/- from his house. 18. The defense in answer to this petition refers to petition of Abdul Zabar Ansari dated 24.05.98 in which he had mentioned that police had recovered a sum of Rs. 30,000/-was recovered. Meaning thereby in that petition he did not claim about the seizure of Rs. 30,000/- from his house. 18. The defense in answer to this petition refers to petition of Abdul Zabar Ansari dated 24.05.98 in which he had mentioned that police had recovered a sum of Rs. 10,000/- and wrongly mentioned that it bears a seal of the bank. The money belongs to him and it should be returned to him. Both these petitions are not exhibited on behalf of the either party. But since both parties had consented to look into these petitions the Court looked into it and found it not very much relevant because the recovery is said to be of Rs. 30,000/-and claims is said to be for Rs. 10,000/-and in the Court Abdul Zabar Ansari has stated that amount recovered was Rs. 30,000/- from his house when he was examined as D.W.1. 19. Prosecution had produced the bundle of money said to be recovered from the house of accused Zakir Ansari which were marked as material exhibits and totaled Rs. 30,000/-,on 28.06.2002. However, on the same day it was the police personnel P.W.9. Om Prakash Das who had brought it. On all the bundles there is a slip containing signature of A. Kumar which has been marked 1 / 4 to 1/11. This signature has been proved by Avinash Kumar himself who was examined as P.W.6, and said that all these bundles have been signed by him in Branch of State Bank of India. P.W.9 S.I. Om Prakash Das, Barhi police station has produced this money from the Markachoo police station. He has said in para 2 of his evidence that all the bundles bears seals of Barsot Branch, code no 8149. 20. Under the circumstances there is evidence of unimpeachable character to show that the money produced in the Court by the police was the money which was property of State Bank of India Branch, Barsot and which was a looted in commission of dacoity and this money had been recovered from the house of Zakir Ansari. 21. Under the circumstances and in view of the discussion above this Court comes to conclusion that the prosecution has proved beyond doubt that a sum of Rs. 30,000/-which was property looted in bank dacoity was retained by accused Zakir Ansari and kept at his home. 21. Under the circumstances and in view of the discussion above this Court comes to conclusion that the prosecution has proved beyond doubt that a sum of Rs. 30,000/-which was property looted in bank dacoity was retained by accused Zakir Ansari and kept at his home. Accordingly accused Zakir ansari is found and held guilty for the offence under Section 412 IPC. 22. In the light of the fact that the conviction and sentence for the offence under section 395 IPC has already been set aside, the appellant Zakir Ansari is convicted for the remaining section 412 IPC. However since the accused appellant has already, as submitted, undergone the period of 4 years, 8 months and 15 days in custody of the required 5 years, the punishment is modified and reduced to the period already undergone. 23. The appellant is on bail, therefore he is discharged from the liability of bail bond. 24. Accordingly, with the said modification the appeal is dismissed.