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2017 DIGILAW 1664 (JHR)

Raitu Khan v. State of Jharkhand

2017-09-14

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Ms. Supriya Dayal, learned counsel appealing for the petitioner and Mr. Ram Prakash Singh, learned A.P.P. 2. This application is directed against the judgment dated 17.12.2004 passed by the learned 1st Additional Sessions Judge, Gumla in Criminal Appeal No. 11 of 2001 whereby and whereunder the judgment and order of conviction and sentence passed by the learned 1st Assistant Sessions Judge, Gumla in S.T. No. 60 of 1983 on 7.2.2001 convicting the petitioner for the offence under Section 395 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years has been affirmed. 3. The prosecution story in brief is that in the night of 26/27.3.1975 at about 1:30 a.m. while the informant was sleeping in his house he heard the sound of filing and thereafter forcible pushing of the main door of his house. The informant became apprehensive and he thought that the dacoits had come. It is alleged that subsequent thereto the dacoits had broken open the door and forcibly entered into the house of the informant and after catching hold of the informant tied his hands and forcibly took his wrist watch. It is also alleged that dacoits also tied the hands of the servant Panchu Lohra and they were assaulted by danda and valuable articles were looted. It has also been alleged that in the meantime one dacoit warned his head that there is hulla in the village as the villagers have came to know about the dacoity which led to all of them fleeing away. The informant and the villagers chased the dacoits and in course of chase one Shibu Sahu had caught one dacoit but he was assaulted with a sharp cutting weapon and thereafter he managed to flee away. Allegation has been levelled that dacoity was committed by eight to ten dacoits who were having Tangi in their hands and were using the torch light. Subsequently the informant could also come to know that the dacoits had also assaulted his parents and had taken away Rs. 2,500/- and ornaments of her mother. 4. Based on the aforesaid allegation Kamdara P.S. Case No. 5 of 1975 was instituted. Investigation resulted in submission of charge-sheet against the petitioner and co-accused Ranjit Singh and Paras Singh. After cognizance was taken the case was transferred to the Court of 1st Assistant Sessions Judge. 2,500/- and ornaments of her mother. 4. Based on the aforesaid allegation Kamdara P.S. Case No. 5 of 1975 was instituted. Investigation resulted in submission of charge-sheet against the petitioner and co-accused Ranjit Singh and Paras Singh. After cognizance was taken the case was transferred to the Court of 1st Assistant Sessions Judge. Gumla wherein after framing of charge trial proceeded. Although the charge-sheet was submitted against three co-accused persons but since co-accused Ranjit Singh and Paras Singh had absconded the trial proceeded only against the petitioner. 5. In course of trial the prosecution had examined as many as ten witnesses in support of its case. 6. PW 1. Keshav Chand Sahu is the informant of the case who had stated that in the night of 26/27.3.1975 while he was sleeping in his house he heard the sound of firing and woke up. He has further stated that the dacoits forcibly entered into his house and after tying both his hands had taken away his wrist watch and had also assaulted him. This witness had stated that the villagers had come to know about the dacoity being committed at which the dacoits had left the place. This witness had also chased the dacoits along with other villagers and on account of chasing one Shibu Sahu had sustained injury. He had claimed to have identified all the three dacoits by face and he has named them as Ranjit Singh. Paras Singh and the present petitioner. This witness had further stated that it was a moon lit night and he had identified the dacoits in the torch light. 7. PW 2, Ram Ratan Sahu, is the father of the informant who was also a victim as he was in his house when the dacoits had entered forcibly and after assaulting him as well as his wife and had taken away Rs. 2,500/- and some ornaments belonging to his wife. This witness had also sustained certain injuries. He has further supported the fact regarding the informant and the other villagers chasing the dacoits as a result of which one Shibu Sahu sustained some injuries. 8. PW 3, Dagru Devi, is the mother of the informant who has stated on similar terms as what has been stated by PW2. 9. This witness had also sustained certain injuries. He has further supported the fact regarding the informant and the other villagers chasing the dacoits as a result of which one Shibu Sahu sustained some injuries. 8. PW 3, Dagru Devi, is the mother of the informant who has stated on similar terms as what has been stated by PW2. 9. PW 4, Sulochani Devi, PW 5, Surju Sao, PW 6, Dular Sao, PW 7, Bal Kishun Sao, PW 8, Ganga Sao, PW 9, Parsuram Sahu were all neighbours of the informant who had stated about the dacoity having been committed in the house of the informant and on alarm the villagers had assembled and had chased the dacoits resulting in one Shibu Sahu suffering injury on his person. Some of these witnesses had claimed to have identified the dacoits in Test Identification Parade. 10. PW 10, Baliram Sao, has been tendered by the prosecution. 11. It has been stated by the learned counsel for the petitioner that the identification of the petitioner is doubtful in view of the fact that Test Identification Parade Chart was never exhibited by the prosecution. Learned counsel further submits that merely on suspicion the petitioner has been implicated and no recovery was made from the possession of the petitioner. It has also been stated that the Investigating Officer was not examined by the prosecution which has caused prejudiced to the defence as the Investigating Officer could have thrown light on the investigation and place of occurrence as well as the alleged identification of the accused persons. 12. An alternative argument has been put forward by the learned counsel for the petitioner that the petitioner is facing the rigors of the prosecution case since the year 1975 and had remained in custody for a period of more than five months. It has further been submitted that the petitioner is aged tore than eighty years and have been sufficiently punished on account of the mental agony suffered by him due to long pendency of the case. 13. Mr. Ram Prakash Singh. learned A.P.P., has opposed the prayer made by the petitioner. 14. It appears from the evidence of the witnesses that they are corroborative and consistent with respect to the dacoity having been committed in the house of the informant which also resulted in suffering injuries by the informant as well as his parents. 13. Mr. Ram Prakash Singh. learned A.P.P., has opposed the prayer made by the petitioner. 14. It appears from the evidence of the witnesses that they are corroborative and consistent with respect to the dacoity having been committed in the house of the informant which also resulted in suffering injuries by the informant as well as his parents. The villagers who have been examined as PW 4 to PW 9 had assembled near the place of occurrence after hearing the dacoity being committed in the house of the informant and had also chased the miscreants which resulted in one Shibu Sahu suffering some injury when he had almost caught hold of one of the dacoits. Thus the factum of the dacoity has been established beyond doubt by the prosecution. So far as the identification of the petitioner is concerned, it was on account of the fault on the part of the prosecution not to have brought on record the Test Identification Parade Chart as some of the witnesses have in the Test Identification Parade identified the accused. However, dereliction on the part of the prosecution in not exhibiting the Test Identification Parade Chart cannot lead to a conclusion regarding the innocence of the petitioner as the witnesses have very consistently stated about the petitioner who had been identified by several of the witnesses by name. Thus, the evidence adduced by the prosecution proves beyond doubt about the complicity of the petitioner in committing dacoity in the house of the informant and having considered such fact the learned trial Court had rightly convicted the petitioner for the offence under Section 395 of the Indian Penal Code which was affirmed by the learned appellate Court. 15. There being no reasons to conclude otherwise the judgment of conviction passed against the petitioner by the learned trial Court and affirmed by the learned appellate Court is hereby sustained. However with respect to the sentence which has been imposed upon the petitioner is concerned it appears that the petitioner is facing the criminal prosecution for the last more than four decades. The petitioner also so seems to be a person aged more than eighty years. 16. On consideration of the long pendency of the case and the age of the petitioner the sentence which has been imposed upon the petitioner is modified to the period already undergone. 17. The petitioner also so seems to be a person aged more than eighty years. 16. On consideration of the long pendency of the case and the age of the petitioner the sentence which has been imposed upon the petitioner is modified to the period already undergone. 17. This application stands dismissed with the aforesaid modification in sentence. Application dismissed.