Patna High Court
Titir Dusadh vs State Of Bihar on 6 May, 1966
Equivalent citations: AIR1966PAT453, 1966CRILJ1474, AIR 1966 PATNA 453, 1967 BLJR 555
JUDGMENT Anant Singh, J.
1. This appeal has been filed by appellant Titir Dusadh against his conviction and sentence of five years under Section 394 of the Indian Penal Code by an Assistant Sessions Judge of Sasaram
2. The prosecution case, in short, is that at about midnight between the 26th and 27th August, 1963 there was a theft committed in the house of Sheopujan Singh, (P. W. 2), whose mother is Lachminia. (P. W. 11). situate in village Pawra in Bikramgani Police station in the district of Shahabad, and during the course of the theft a box containing Rs. 1,000 in cash and some clothes and ornaments had been taken away from a room by the thieves. Bachan Prasad Singh (P W 1) whose house was situate adjacent east to the house of P. W 2 woke up on alarm of 'chor, chor'. He came out in the lane with a torch and a lathi. He flashed his torch and could see four thieves in the Koli adjacent north of the house of P. Ws. 1 and 2. Out of the four thieves, P. W 1 could identify the appellant and his brother, Sipahi Dusadh, who both came from inauza Bharkulia about three miles away within Dawat Police station in the same district. The box was taken away by another thief who could not be identified. They asked P. W. 1 to move away, otherwise he would be assaulted. P. W 1. however, did not move and, in the meantime, Ramanand Singh (P. W. 4). a neighbour, also arrived.
The thieves had lathis They began to run away finding some villagers arriving. P. Ws. 1 and 4 chased them They reached the lane southwest of the garb which was there when they stopped. Lallan Singb (P W 5) and Babban Singh (P W 7) also arrived in the meantime having carried lathis Sipahi Dusadh and appellant Titir Dusadh started hurling lathis on P Ws 1. 4 and 5 At the same time. P Ws. 1 and 4 as also some other villagers started assaulting the thieves Sipahi Dusadh and the appellant on receiving some injuries both fell down, and the other two thieves fled away After Sipahi Dusadh fell down. P W 1 caught hold of him when appellant Tilar Dusadh began to assault P W 1 There was a scuffle, but P W 1 did not loosen his grips on Sipahi Dusadh The latter, however, managed to get up and began dragging P W 1 He dragged him up to the door of one Thag Dhobi At that place. Ramanand (P W 4) caught hold of Sipahi At that point of lime also the appellant assaulted, P W I and Ramanand (P W 4). Lallan Singh (P W 5) was also assaulted by the appellant While Sipahi bad been caught. P Ws. 1. 4 and 5 had been raising hulla of 'chor chor' and this attracted a large number of villagers to the scene They all began to assault witb lathis Sipahi Dusadb and the appellant: but the appellant in the meantime managed to run away. The villagers continued assaulting Sipahi Dusadb even after he had fallen down, and as a result of the injuries sustained by him. Sipahi Dusadb died in front of the house of Thag Dhobi
3. The dead body of Sipahi Dusadh was left lying in front of the house of Thag Dhobi for some time. There was. however a rumour abroad that the Dusadhs from Dusadh toli, which was about 500 yards away on the eastern side from the house of Thag Dbobi, were coming to take away the dead body of Sipahi Dusadh. The villagers with a view to save the dead body carried it to the dalan of village Sarpunch Bishwanath Kishore Singh (P. W. 3), which was at some distance to the north-east from the house of Thag Dhobi.
4. A number of villagers collected at the dalan of the Sarpunch (P W, 3) and the dead body of Sipabi Dusadh was being kept under watch all the time. Out of fear, nobody went during the night to the thana, which was about ten miles away. It was the next morning that P W. 1 along with others went to the thana reaching at about 8 a. m., when he lodged the first information report (Ext. 3) which was drawn up af 8.15 a. m. by a Sub-Inspector of Police, Shri D. N. Singh, under the direction of the officer-in-charge, Shri Radha Krishna Prasad (P W 13)
5. P. W. 13. who will be referred to hereafter as 'the I. O. after drawing up the first information report, instituted a case and re-examined Bachan Prasad Singh (P W I) He found injuries on his person and prepared his injury report. The I. O. also examined and recorded the statements of Sheo Pujan Singh (P. W. 2), Babban Singh (P. W 7) and Bishwanath Kishore Singh (P. W. 3) who also had gone to the thana along with P W 1. The I. O. sent Bachan Prasad Singh to the Medical Officer of Dumraon Raj Hospital, Bikramganj. for bis medical examination The I. O. thereafter visited the scene of the occurrence at 11.45 a.m. the same day (27th August. 1963). He first went to the dalan of Bishwantb Kishore Singh (P W 3). In a room of the dalan. the I. O. found the dead body of Sipahi Dusadh lying on the floor. He prepared an inquest report of the dead body (Ext 4) The I. O. found blood on the floor underneath the head of the dead body. He scraped some bloodstained earth He also seized two pieces of blood-stained ropes (Exts III and III/1), which were in the dalan The I O then examined Jamuna AlR (P. W 12), who was acting as proxy chaukidar for his father The I O sent the dead body of Sipabi Dusadh along with Ramadhai Misra and proxy Chaukidar (P W 12) for postmortem examination. The I O. examined Babban Singh (P W 7). who produced a three-shell-battery torch in working order (Ext I/I) The I O. then recorded the statement of Ramanand Singh (P W 4) and Lallan Singh (P W 6) He found injuries on both of them and prepared their injury reports. He forwarded them to the Dumraon Raj Hospital at Bikramganj for their examination.
6. The same day at about 3 p. m the I. O. inspected the house of P. W 2 He prepared a sketch map of if and its surroundings including the bouses of some of the witnesses and other relevant places The sketch map is Ext, 6 The western wall of the house of Bachan Prasad Singh is common to the eastern wall of the house of Sheopujan Singh. The house of Bachan Prasad Singh was mud-built with tiled roof. The I. O. found a mud-made chabutra in a room of the house of Sheopujan Singh. Over that chabutra which is shown by letter 'A' in the sketch map, (Ext. 3) of the I. O., some dust was found indicating that some box was kept over there and had since been removed.
7. On the northern wall of the house of Sheopujan Singh towards the Koli side, the I. O. found at two places signs of scaling. One such sign was at a height of a man's waist, and the other was at height of a man's chest. These signs were of foot-prints on a wall which was white-washed with lime. The I. O. further found the tiles of the western part of the chhappar of Sheopujan Singh freshly broken in an area of 2' X 2 1/2.
8. The lane on the northern side of the houses of P Ws 1 and 2 has gone westward and then southward. Another lane on the south of the house of P. W. 1 has also proceeded westward, and the two lanes had crossed on the south-west corner of the garb. The house of Thag Dhobi lies adjacent south of the southern lane and is shown by letter 'G' in the sketch map (Ext. 6). At one place in the lane near the house of one Charitar Kumhar. the I. O. found some depression, and there was enough wet mud at the time since shortly before the visit of the 1. O. it had rained profusely At the place of depression, the I.O found some disturbance indicating the falling of some persons At that place, water was also flowing. The house of Thag Dhobi is adjacent east of the lane at that point The I O., however, did not find anything worth noting in front of the house of Thag Dhobi
9. The I. O. after finishing his inspection examined and recorded the statement of Lachhminia (P. W. 11) the mother of Sheopu-jan Singh. He examined the same day Ram Ekbal Tewari (P W 9), Ram Brich Kumhar (P W 10) and some other witnesses
10. The I. O. at about 9.25 p. m. the same day visited Dusadh Toli, but no one was found there to make any statement before him. It was at about 8 a. m on the following day (28th August. 1963) that the I. O. visited Dusadh-loli again, but he could not meet any adult Dusadh who could make any statement before him
11. The I. O. returned to the thana at about 8.30 p m. when he found appellant Titir Dusadh kept under arrest- He had been arrested the same day by an Orderly constable of the Inspector and one another man The I. O. recorded the statement of the appellant and found on him some injuries as well. He forwarded the appellant to the same Dumraon Raf Hospital at Bikramganj for his examination and treatment
12. The I O., after completing investigation, submitted charge-sheet against the appellant on the 30th November 1963. He was committed to the Court of Session by a Magistrate
13. The appellanl pleaded nut guilty to the charge. His defence was that there had been no theft or robbery in the house of P. W 2; but, as a matter of fact, the appellant's brother Sipahi Dusadh had been murdered that night by the various prosecution witnesses of this case. It was said thai one Bala Dusadh whose house was in Dusadh-toli of village Pawra was related to the appellant and his brother Sipahi Dusadh. On the 26th August, 1963, Sipahi Dusadh had gone to the house of Bala Dusadh and was staying with him during the following night. At about 8 P M.. Sipahi Dushdh was going from the house of Bala Dusadh to his Barghara. In the meantime, P Ws 1, 2, 3, 4 5 and 7 of this case besides some others, turned up with lathis and bhalas and killed Sipahi Dusadh on the wav between the house of Bala Dusadh and his Barghara- It was with a view to cover up their crime that the story of theft was set up falsely by the prosecution
14. A complaint case for the murder of Sipahi Dusadh was filed by one Jagdish Dusadh son of the appellanl before the Sub-divisional Officer at Sasaram on the 28th August, 1963. Ext. B is the copy of the statement of Jagdish Dusadh on solemn affirmation in respect of the complaint filed by him. and Exl A is the order sheet of that case
15. It was alleged by Jagdish Dusadh that the Police of Bikramganj was inimical to Sipahi Dusadh, and they refused to register a case about the murder of Sipahi Dusadh when Jagdish had been there to lodge a case. It was for this reason that Jagdish filed his complaint before the Sub-divisional Officer on the 28th August. 1963, after he came 1o know of the murder on the 27th of August. 1963.
16. The complaint petition of Jagdish regarding the murder of Sipahi Dusadh was sent to the Bikramganj Police for instituting a case, but even earlier to that, the I. O had instituted a case of murder of Sipahi Dusadh under Section 304 of the Indian Penal Code. The same I. O. investigated that case also and ultimately he submitted a final report declaring the murder case to be false It appears that the final report was not accepted, and there was a regular trial of the accused in the murder case, and I am given to understand by learned Counsel appearing for the appellant that the murder case ultimately ended in acquittal of the accused
17. The first question for consideration is whether there has been a robbery or even a theft in the house of P W 2 during the relevant night. The witnesses, who have deposed to the factum of robbery or theft, are P Ws 1. 2. 4, 5, 7 and 11. P W 2 is the son and P W 11 is his mother They were both during the relevant night sleeping in their house P W 1 is a close neighbour, having his house on the adjacent east P Ws 5 and 7 are brothers, and their joint house is adjacent south of the joint house of P Ws 3 and 4 The house of P Ws 3 and 4 is at a short distance on the eastern side from the house of P W 1 They are all neigh hours and agnatic relations
18. None of these witnesses however, had seen any of the thieves inside the house of P. W. 2. The first man, who woke up, was P. W. 1, who could see all the four thieves including the appellant and Sipahi Dusadh in the koli just adjacent to his house. He could also see a box on the head of one of the thieves who could not be identified. The evidence of P. W. 2 and his mother (P. W. 11) is that the box was being kept on a chabutra which was in the southern room. The I.O., as has already been indicated, had found some dust on that chabulra. which has been shown by letter 'A' indicating that a box was being kept over there. Il is true that P W. 2 did not say that there was any dust seen by him on that chabutra, but there is no reason to disbelieve the evidence of the I. O.
19. The I. O. had also seen some marks of scaling on a wall of the house of P. W. 2 and some tiles broken over its roof. These facts would undoubtedly support the evidence of the prosecution witnesses that some thieves had managed to get into the house of P. W. 2 by scaling over the wall and the tiled roof of P W 2 Indeed, there is no reason to disbelieve the evidence of P Ws. 2 and 11 when they said that one box containing some cash, ornaments and clothes had been taken away by the thieves
20. Among the witnesses speaking to the factum of robbery. P Ws 1, 4 and 5 had sustained some injuries caused to them by lathis This was certified to by the medical officer of the Dumraon Raj Hospital, Bikramganj. who is P W 8 He had examined their injuries at about 4 P. M on the 27th August, 1963 On Bachan Prasad Singh (P. W. 1), he had found some seven injuries of which three were in the nature of swellings and the rest in the nature of scratches on different parts of his body On Ramanand Singh (P W 4). the doctor found three swellings an different parts of his body; and, on Lallan Prasad Singh (P W 6) also, the doctor had found three swellings on different parts of his body. The injuries on all were simple in nature and could be caused by blunt substance like lathi. The age of the injuries on all was within 24 hours from the time of their examination
21. The evidence of these injured witnesses is that they received their injuries at the hands of Sipahi Dusadh and the appellant during the course of the scuffle when Bachan Prasad Singh (P W 1) had caught hold of Sipahi Dusadh and when he was being dragged by him towards the house of Thag Dhobi The evidence of this witness as to the nature of the weapons used and as to the time of then assault finds ample corroboration from the evidence of the dector. There is no reason to disbelieve their evidence unless it could be supposed that they manag ed to manufacture their injuries with a view to create defence for the alleged murder ot Sipahi Dusadh I do not think that their Injuries were manufactured although they are all simple in nature The first information report by P W. 1 was lodged only the next morning at about 8-15 A.M It gave all the details of the occurrence including the fact of the killing of Sipahi Dusadh by the villagers and the fact of causing some injuries to the appellant. The same doctor (P W. 8) at about 9-35 P.M. on the 28th August, 1968. examined the injuries of the appellant He had found on him four scratches and swelling 2" x 2" on left shoulder, and one swelling 3" x l" with a scratch and stick impression on the right side back. The injuries could be caused by lathi, and the age of the injuries was beyond 36 hours and within 48 hours of the time of his examination. This would coincide with the time of the occurrence, and support the evidence that Titir Dusadh was also assaulted by some of the witnesses Unless it was a fact that the appellant had been assaulted by the witnesses at the time of the occurrence, a mention of it could not have been made in the first information report lodged by P W 1 in the off chance that the appellant could be arrested soon and his injuries could be discovered The defence of the appellant, however, is that it was after his arrest on the 28th August. 1963 that the constable and some other persons had assaulted him while he was returning after the cremation of his brother, Sipahi Dusadh. His explanation as to the injuries docs not at all appear to be convincing, for. as I have said, the fact about his injuries had alrcady been mentioned by P W 1 in the first information report. An autopsy over the dead-body of Sipahi Dusadh was performed at 11-30 a.m. on the 28th August. 1963 by Civil Assistant Surgeon of Sasaram Hospital. Dr. U. P. N Singh (P W 6). He had found some eight injuries on the dead body, of which, two were penetrating wounds and there were abrasions of different sizes The nature of the other injuries was, however, not indicated due to decomposition On dissection, some fracture of the ribs in the chest had also been found The injuries other than the two penetrating wounds could be caused by a hard blunt substance like lathi, and the two penetrating wounds by a weapon like bhala
22. The evidence of the witnesses deposing to the occurrence however is that the villagers speaking generally, had assaulted Sipahi Dusadh with lathis None of them said about any assault on Sipahi Dusadh with bhala of any kind of pointed weapon: but it may be that the witnesses did not see the weapons of all who had engaged themselves in assaulting Sipahi This by itself is no ground to disbelieve the evidence of the witnesses
23. The further evidence of the doctor (P. W 6) is that in the stomach of Sipahi Dusadh some partially digested rice about l'/2 oz was found, indicating thereby that he had taken his last meal about four to six hours before his death- and his death could have occurred about 36 hours before the postmortem examination by him This would put the time of death of Sipahi Dusadh at about mid-night preceding the 27th August 1963 which, according to the prosecution, is the lime of the occurrence This opinion of the doctor as to the time of the death of Sipahi Dusadh would rule out the possibility of the defence case that Sipahi Dusadh had been murdered of about 8 p.m. on that night, and, therefore, it would lend support to the prosecution story.
The defence case that Sipahi Dusadh had been murdered at about 8 p.m. during the night of the 28th August. 1963. appears to be improbable for other reasons as well. He was, as was the defence itself, related to Bala Dusadh residing in Dusadh-toli of village Pawra. This Dusadh-toli was only 500 yards away from Ihe house of Thag Dhobi The Dusadh-toli was inhabited by so many Dusadhs. If there had been a murder of Sipahi Dusadh in the proximity of Dusadh-toli, if was surely expected that some of the Dusadhs--at least one of the relations of Sipahi Dusadh--would have hastened to lodge a case. If the Police of Bikramganj was hostile, some one would rush to the Court of the Sub-divisional Officer at Sasaram the next day: but only a belated complaint was filed three days after on the 28th August, 1963 by Jagdish Dusadh, one of Ihe sons of the appellant.
24. The motive for the alleged murder of Sipahi Dusadh at the hands of some witnesses of this case, as was sought to be substantiated on behalf of the appellant, was that about ten days before this occurrence, a gun of the Surpunch Biswanath Singh (P W 3) had been stolen There was also a case about it, and in that case. Sipahi Dusadh was one of the five accused This fact has been admitted by P W 1 himself, who further admitted that that case ended in conviction later on.
25. An order-sheet (Ext. A/1) dated the 13th March. 1963 was also brought on the record on behalf of the appellant to show that Bishwanath Kishore Singh (P W 3) had filed a case under Sections 457 and 380 of the Indian Penal Code against Bala Dusadh and others. In that case, a final report was submitted declaring the case as true, but the accusation as false. P. W 3 has also admitted having filed a case of theft of paddy in January, 1963.
26. It will appear no doubt from the above facts that Bishwanath Kishore Singh (P W. 3) had his animus against Sipahi Dusadh as also against Bala Dusadh. but for that alone, it cannot be said that the present theft case was a false one and was calculated only to cover up the murder of Sipahi Dusadh. It is quite probable that on account of the previous conduct of Sipahi Dusadh in the matter of committing theft of the gun of Bishwanath Kishore Singh. he and his people got infuriated in revenging their grudge on Sipahi Dusadh by killing him. finding that he had come to the village during the relevant night and had joined in the commission of the theft. It is another matter that the killing of Sipahi Dusadh. in the circumstances of the case, could not be justified, but it cannot be said that the present theft case in the house of Sheopujan Singh was a false one, when as I have already indicated, there is no reason in disbelieve the evidence of the witnesses speaking to the theft.
27. It has also come in the evidence of P. W. 1 that the place where Sipahi Dusadh had fallen was on one of the routes from the house of Bala Dusadh to his Barghara, but this again would not prove the defence suggestion that Sipahi Dusadh had been killed at the time and in the manner as alleged by the defence. It is nol known where actually the house and Barghara of Bala Dusadh situate. Besides, as I have already indicated, Sipahi Dusadh could not have been killed at 8 P. M.. as was the defence suggestion, but he must have been killed, as is the prosecution case, at about [he dead of night.
28. Learned Counsel. Mr. Radha Prasad Singh. appearing for the appellant, has also emphasised on the absence of any marks of dragging from the place of the occurrence to the house of Thag Dhobi where Sipahi Dusadh was done to death. Learned counsel has also emphasised on the absence of blood marks anywhere from the place of Thag Dhobi to the dalan of P W. 3, where the dead body of Sipabi Dusadh had been taken But it has come in the evidence including that of the I. O. that it had rained heavily after the occurrence The blood marks and marks of dragging might have all got obliterated in the rain water.
29. Mr. Radha Prasad Singh has also drawn my attention to the fact that the I. O. had found no mud marks on the dead body of Sipahi Dusadh. The evidence of some of the witnesses is that Sipahi Dusadh had fallen on the ground when he was having a scuffle with some of the witnesses including Bachan Prasad Singh (P W 1). It may be that the I. O. did not care to notice any mud mark on the dead body The fact cannot be denied that the dead body of Sipahi Dusadh had been carried to the dalan of P W 3, wherever he might have been killed--whether on way between the Barghara and the house of Bala Dusadh or in front of the house of Thag Dhobi If the dead bodv had been carried from anywhere near the house of Bala Dusadh. I don't think the Dusadhs of Dusadha-toli could have suffered the carrying away of the dead bodv. and instead deserted the whole village
30. In the circumstances, I have no reason to think that Sipahi Dusadh was killed, quite independently of the incident of theft in the house of P W. 2. There was, as the witnesses have said, a theft of a box from the house of P. W 2 The witnesses had seen four thieves in the lane, just adjacent north of the house of P. W 2; one of them was seen with a box on his head Among those persons. Sipahi Dusadh and the appellant could be identified by P. Ws. 1, 4. 5 and 7 They have spoken to the subsequent exchange of lathi blows between P. Ws. 1. 4, 5 and 7 on one hand and Sipahi Dusadh and the appellant on the other. There is no reason to disbelieve their evidence when it has found due support from the medical evidence, to which a reference has already been made. P. W. 2. however, could not identify any of the thieves at that point of lime because of his weak eye-sight. P. W. 3 also could not identify the appellant as one of the thieves. It is, of course, true that all these witnesses are agnatic relations, but that is no ground to disbelieve their evidence when at least P. Ws. 1, 4 and 5 had sustained some injuries at the hands of Sipahi Dusadh and the appellant. I am fully satisfied that although the appellant was not seen entering into the house of P W 2, he was seen in the company of four thieves just in the lane adjacent north to the house of P. W 2. when one of them was seen carrying away the stolen box. The appellant was obviously one of the accomplices of the four thieves. His house was three miles away He had no business to be present in the lane along with four persons; one of them was seen going away with a stolen box. There can. therefore, be no doubt that surely he was one of the thieves who committed the theft from the house of P. W 2 by removing one box.
31. The next question for consideration is whether the appellant can be found guilty of robbery As defined in Section 390 of the Penal Code, theft becomes robbery "if. in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, 'for that end', voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint"
It is obvious that the emphasis for the commission of robbery is on 'for that end'.
32. It will appear that the use of violence by the offender must be for the purpose of committing theft or for the purpose of removing any article of theft. But if it is other wise in order to help the offender to escape, may not come within the definition of 'robbery ' It was held by Imam, J in Jalil Gope v. State of Bihar, 195R BLJR 473 that where theft has been already committed by the accused and injuries were inflicted by them subsequently in their attempt to escape and not to commit theft, the element of robbery was wanting. A similar view was also taken in Ramdeo Tewari v. Deonarain Tewari. 1953 BLJR 465 Misra, J.. after referring to the provisions of Section 390 of the Penal Code observed:
''The crucial words. therefore. in the section are 'for that end' which will distinguish a case of theft accompanied with assault covered by the provisions of Sections 379 and 323 of. the Indian Penal Code, from that of a case of robbery"
33. In the instant case, it would appear that theft was already committed by one of the co-thieves other than the appellant by removal of the box. The appellant was not found carrying any stolen article, nor was Sipahi Dusadh. These two alone had used violence on P Ws 1, 4 and 5. while the latter tried to catch them. Tt may be that the action of Sipahi Dusadh and the appellant in assaulting their chasers helped the thief carrying away the box to make flood his escape; but it can not necessarily be said that the use of violence by Sipahi Dusadh and the appellant was cal culated to help the removal of the stolen arti cle. The use of violence could also be to en able Sipahi Dusadh and the appellant to escape.
Now, if both the views are possible. one favourable, to the appellant should be accept ed, as was held also in Himatsing Shivsing v State of Gujarat. 1962 (2) Cri LJ 415 (Guj).
In the circumstances of the case, I would find the appellant guilty of theft only and not of robbery, as found by the learned trial Court I would, therefore, alter his conviction from Section 394 to one under Section 380 of the Indian Penal Code and sentence him to three years rigorous imprisonment With this modification in the sentence, as mentioned above, the appeal is dis missed.