Patna High Court
Shahin @ Md. Shain vs The State Of Bihar on 30 January, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1144 of 2016
Arising Out of PS. Case No.-42 Year-2013 Thana- BHAGALPUR GRP CASE District-
Bhagalpur
======================================================
Shahin @ Md. Shain, son of Md. Taiyyab, Resident of Village- Khariyara,
P.S. Barahat, District- Banka.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
Criminal Appeal (SJ) No. 1023 of 2016
Arising Out of PS. Case No.-42 Year-2013 Thana- BHAGALPUR GRP CASE District-
Bhagalpur
======================================================
Md. Rijaul, Son of Md. Mikaet, resident of Village Khariyar, P.S. Barahat,
District- Banka.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Criminal Appeal (SJ) No. 1144 of 2016)
For the Appellant/s : Md. Najmul Hodda-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.
(In Criminal Appeal (SJ) No. 1023 of 2016)
For the Appellant/s : Mr. Brij Nandan Prasad-Advocate
For the Respondent/s : Mr. Binod Bihari Singh-A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
30-01-2019 Both the appellants namely Shahin @ Md.
Shain of Cr. Appeal (S.J.) No.1144 of 2016 and Md. Rijaul of
Cr. Appeal (S.J.) No.1023 of 2016 have been found guilty for an
offence punishable under Section 395/34 of the I.P.C. and each
one has been sentenced to undergo R.I. for ten years as well as
to pay fine appertaining to Rs. Ten thousand and in default
Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019
2/15
thereof, to undergo S.I. for one year, additionally, vide judgment
of conviction dated 29.09.2016 and order of sentence dated
01.10.2016passed by the 1st Additional Sessions Judge, Bhagalpur in Sessions Trial No.373 of 2015.
2. Informant Umesh Prasad Chaudhary gave his fard-bayan to the effect that he along with his wife Meena Devi, son Gautam Kumar and daughter-in-law Swati Devi were travelling on 19.08.2013 over Banka Intercity (13242 Down) and as soon as the train esteemed off from Barahat Station, one boy came and sat by the side of his wife, whereupon he protested. That boy stood up, but remained standing there. Another, who was standing at the gate called him as Shahin @ Md. Shain and inquired about Rijaul, whereupon that boy "Shahin @ Md. Shain" disclosed that Rijaul is standing near another gate. Till then, train reached Muraura Halt. As soon as the train esteemed off there from, the aforesaid Shahin @ Md. Shain snatched away golden chain as well as Mangalsutra from his daughter-in-law and rushed over which, he attempted to apprehend him. During midst thereof, he took out pistol and threatened to kill in case he attempts to apprehend him and then thereafter, all the accused persons got down from running train, whom the passengers have seen. Some of the passengers have Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 3/15 disclosed that all the accused persons are of village-Khariyara, P.S. Barahat, District-Banka. After coming to Banka Station, he got the fard-bayan recorded by the Railway Police Bhgalpur, who has arrived on being informed.
3. After registration of Rail Bhagalpur P.S. Case No.42 of 2013, investigation commenced during course thereof, Shahin @ Md. Shain was apprehended. He was put on T.I. Parade, identified by the informant. Other accused were also apprehended, and after concluding the investigation, chargesheet was submitted, facilitating the trial, meeting with the ultimate result, the subject matter of instant appeal.
4. The defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been pleaded that on account of animosity with the mohalla people, they have been falsely implicated in this case. Furthermore, Exhibit-A, Complaint-cum-protest petition pertaining to SC/ST P.S. Case No.07 of 2012 has been exhibited as Exhibit-A.
5. Both the appellants are independently represented by the respective learned counsels.
(A) Shahin @ Md. Shain Learned counsel for the appellant has submitted that he has Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 4/15 fallen victim of mistaken identity in this case and that being so, the conviction and sentence recorded by the learned lower Court happens to be cryptic, capricious, illegal, perverse, whereupon non-maintainable in the eye of law. To substantiate such plea, it has been submitted that only Shahin @ Md. Shain was disclosed in the fard-bayan without having proper identification. The mohalla people being hostile to the appellant after coming to know about the same, got him involved in this case after taking the police in their collusion, otherwise there would not be a situation whereunder PW-3, the alleged victim could not identify the appellant in dock and in likewise manner, PW-1 had shown the Mukesh (since acquitted) to be snatcher. It has also been submitted that in the background of aforesaid factual aspect, the evidence of PW-2 as well as PW-4 along with evidence of PW-5, I.O. could not be relied upon. Furthermore, it has also been submitted that nothing has been recovered from his possession. So, submitted that the judgment of conviction and sentence recorded by the learned lower Court is fit to be set aside.
6. B) Md. Rijaul- The learned counsel for the appellant has submitted that right from inception of the fard- bayan, it is evident that Rijaul was not at all present near about. Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 5/15 The police according to prosecution version itself. His presence was at the another gate. So, for want of proper evidence, it could not be said that appellant was one of the member of the dacoits. Furthermore, it has been submitted that manner of identification in dock by the PWs are sufficient to discard their testimony, as from their evidences, it is crystal clear that appellant was not at all present before them, so identification was not at all possible. It has also been submitted that in worst case, it happens to be identification before Court for the first time, which under the present facts and circumstances appears to be fragile. Hence, the judgment of conviction and sentence recorded by the learned lower Court suffers from conjecture and surmises.
7. The learned Additional Public Prosecutor while controverting the submission made on behalf of learned respective counsels has submitted that in terms of Section 391 of the I.P.C., each member whether actively participated during course of commission of dacoity or not are liable to be convicted for dacoity. The only obligation over the prosecution happens to be proper identifying the accused as a member of the dacoits. Right from inception, there happens to be proper identification of Rijaul to be one of the member as the person as an accused standing near gate had called Shahin @ Md. Shain Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 6/15 inquired about Rijaul, answered by Shahin @ Md. Shain that he standing at another gate, is indicative of the fact that they all were member of the dacoits and when they succeeded in snatching chain as well as Mangalsutra, they all conjointly got down from running train. It has also submitted that so far Shahin @ Md. Shain is concerned, he was identified during course of investigation at the end of informant in T.I. Parade, which he reiterated during course of evidence supported by PW-2, corroborated by PW-5. That being so, the judgment of conviction and sentence recorded by the learned lower Court is fit to be confirmed.
8. In order to support its case, altogether five witnesses have been examined on behalf of prosecution, who are PW-1, Meena Devi, PW-2, Gautam Kumar, PW-3, Swati Kumari, PW-4, Umesh Prasad Chaudhary and PW-5, Bindeshwari Yadav. Side by side, has also exhibited, Exhibit-1 series, signature of informant as well as police official over fard- bayan, Exhibit-2, inculpatory extra-judicial confessional statement of Shahin @ Md. Shain, Exhibit-3, fard-bayan. Although, no oral evidence has been adduced on behalf of appellants, but certified copy of protest-cum-complaint petition relating to SC/ST Case No.07 of 2012 has been made as Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 7/15 Exhibit-A.
9. PW-1, during her examination-in-chief, has stated that while she along with her husband, son, daughter-in- law was travelling over Banka Intercity and as soon as esteemed off from Barahat Station, one boy came and sat by her side, whereupon her husband protested. That boy stood up, but remained there. One of their associate called him Shahin @ Md. Shain and inquired about Rijaul, who accordingly replied. The person, who was called by name Shahin @ Md. Shain, snatched away chain and Mangalsutra from her daughter-in-law and further, took out pistol and threatened that in case of raising alarm, they will be murdered. At that very time, 4-5 dacoits were standing in the surrounding. They have also thrown her grandson beneath the bench. Then thereafter, the accused persons got down from the running train. He identified all the three accused, who were present in dock. From the order sheet dated 25.07.2016, it is evident that Jai Krishna and Mukesh Kumar were physically present along with Md. Shahin @ Md. Shain, who was under custody while Ashish Thakur and Rijaul were represented under Section 317 Cr.P.C. She had also disclosed that the persons, who are not present, would also be identified by her. Then thereafter, she had gone near the dock Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 8/15 and pointed out one person and said that he was the person, who snatched away the chain and Mangalsutra, who on query, disclosed his identity as Mukesh Kumar Das. During cross- examination, all the accused persons were independently represented as Mukesh Kumar Das, Jai Krishna and Ashish Thakur have already been acquitted, hence cross-examination of their end is not being dealt with. On behalf of Rijaul, she has stated during course of cross-examination that Shahin called Rijaul and then, she identified Shahin in dock by way of stating that Sahil is present in dock. She has further stated that she had not known name of Rijaul since before the occurrence. She has further stated that she had not submitted receipt/ cash memo relating to the chain as well as Mangalsutra. This witness was not at all cross-examined by Md. Shahin, even though having been properly identified during cross-examination, apart from examination-in-chief.
10. PW-2, Gautam Kumar, during his examination- in-chief, has reiterated the version by stating that on the alleged date and time of occurrence, they were travelling with Banka Intercity. When the train reached at Barahat Railway Station, 4- 5 youngsters boarded and then, they began to loiter. Out of them, one person sat by the side of his mother, whom another Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 9/15 had called Shahin @ Md. Shain. His father protested, whereupon that boy stood up, but remained there. Then thereafter, that boy gone behind the seat of his Bhabhi and sat there. As soon as the train came at Muthara Halt, the aforesaid boy namely Shahin @ Md. Shain snatched away chain, Mangalsutra of his bhabhi. At that very time, Shahin @ Md. Shain called Md. Rijaul, who responded. They have protested over which, Shahin @ Md. Shain took out pistol, aimed at his father and said in case of protest, he will be murdered. Then, all the miscreants got down from the running train. Out of fear, none of the passengers resisted. Then thereafter, they have reached at Banka Station where they all got down from the train. His father gave fard-bayan over which he had put his signature. He claimed identification and he identified one of them namely Shahin @ Md. Shain and further, the witness has stated that he is the person, who snatched away chain as well as mangalsutra. Two others were not identified. It is further evident that at that very time, Ashish Kumar Thakur was at Banka Jail while Md. Rijaul was represented under Section 317 of the Cr.P.C. During cross-examination at Para-2 relates with Mukesh, Para-3, Ashish Thakur and Para-4, Jai Krishna since acquitted on account thereof, cross-examination relating to them is not discussed. He Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 10/15 was not cross-examined on behalf of Rijaul. During course of answering cross-examination at the end of Shahin @ Md. Shain, he stated that when train came at Barahat Station, 4-5 miscreants along with other passengers boarded the train. In Para-7, he has stated that he was not knowing the persons since before, who had boarded in that bogie. In Para-8, he has stated that accused persons were calling each other by name, whereupon they came to know. In Para-9, he has stated that he had not participated in T. I. Parade. Then has denied the suggestion that he has deposed falsely.
11. PW-3 is the Swati Kumari, who during her examination-in-chief, has stated that on the alleged date and time of occurrence, she along with her Dewar, mother-in-law, father-in-law was travelling by Banka Intercity. When train reached at Barahat Halt, miscreants along with other passengers boarded. Then thereafter, she detailed the activity of the accused persons and further, having indulged in snatching of chain as well as mangalsutra. Also disclosed about their escape on the basis of firearm. She has further stated that at that moment, she had not identified any of the miscreants nor at the present moment, she could identify. On account thereof, nothing substantial has been questioned.
Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 11/15
12. PW-4 is the informant, who has deposed that on the alleged date and time of occurrence while he along with his family members were travelling by Banka Intercity and as soon as train came at Barahat Station, so many passengers boarded including the miscreants. They were in Sleeper Class. One boy came and sat near his wife, whereupon he protested. Then thereafter, he along with others began to loiter. As soon as the train was to arrive at Marhara Halt, one miscreants came and snatched away chain as well as mangalsutra from the neck of his daughter-in-law, whereupon he tried to apprehend whereupon the miscreant took out pistol and threatened to kill. During course thereof, he called one of them as Rijaul, who responded and called him as Shahin @ Md. Shain. On the basis thereof, he came to know that the miscreants, who snatched away the chain and mangalsutra, was Shahin @ Md. Shain and another was Rijaul. They all got down from running train. When the train reached at Banka Station, police came, whom he had given his fard-bayan (exhibited). He has further stated that during course of investigation as per direction of the police, he had participated during course of T. I. Parade and identified one person, who was Shahin @ Md. Shain and further, also identified him in dock. He has not claimed identification Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 12/15 relating to others. He has been cross-examined by all the accused, save and except Shahin. On behalf of Rijaul, nothing relevant has been confronted as is evident from Para-3. From Para-4, it is evident that it was on behalf of Jai Krishna, but manner whereunder cross-examination was done, is concerning Shahin as at Para-5, he has stated that during course of T.I.P., 15-20 persons were there. He was not knowing name of accused as Shahin since before, rather when he was called by his associate then, knew. In Para-6, he has stated that at the time of occurrence, accused persons have not concealed their face. They have not assaulted him. In Para-7, he has stated that one and half, two months after the occurrence, he had gone to identify the accused in T.I.P. He has denied the suggestion that police had shown Shahin @ Md. Shain since before and on the basis thereof, he had identified.
13. PW-5 is the I.O., during examination-in-chief has stated that after receiving information from Banka Police Station with regard to commission of dacoity in Banka Intercity. He rushed to Banka and then, recorded fard-bayan of Umesh Prasad Chaudhary. After registration of the case, he took up investigation. Examined witnesses, inspected the P.O. During course of investigation, he had apprehended Shahin @ Md. Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 13/15 Shain on 28.08.2013, interrogated and during course thereof, he made inculpatory extra-judicial confessional statement (Exhibit-
3). Then, he was remanded to Jail custody. He got T.I. Parade conducted at the Jail and during course thereof, informant Umesh Pd. Chaudhary had identified him. Also apprehended other co-accused, also traced out criminal antecedent of the accused persons. Then, after completing investigation, submitted chargesheet. During cross-examination in Para-3, he has stated that no booty was recovered. T. I. Parade was conducted inside the jail. He had not requisitioned other witnesses including Swati Kumari. He had not requeted for conducting of T. I. Parade relating to other co-accused.
14. From the evidence available on the record, it is evident that there happens to be proper identification of Shahin @ Md. Shain by name having called out during course of commission of the occurrence by his associate as well as proper identification in dock. It is needless to say that whatever being deposed in Court on oath happens to be substantive evidence. His identification, apart from PW-4, PW-2 as well as PW-1 have also claimed and from the cross-examination having at the end of appellant, nothing substantial has been elicited in order to create doubt from mode of identification. Apart from this, Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 14/15 Exhibit-A did not connect Shahin @ Md. Shain any way that means to say, appellant Shahin @ Md. Shain failed to create doubt over his identification as one of the dacoits.
Now, coming to the status of Md. Rijaul, it is evident that at the time of examination of PW-1, Md. Rijaul was represented under Section 317 of the Cr.P.C. That being so, he had waived dispute over his identification. Apart from this, Para-9 of cross-examination of the PW-1 affixed his identification wherein she has stated that Shahin @ Md. Shain had called Md. Rijaul and Shahin @ Md. Shain is present in dock. Then thereafter, the defence could not dare to test the PW- 1 on that very score. In likewise manner, when PW-2 was being examined, he was again represented under Section 317 Cr.P.C. and that being so, he has been precluded to raise any dispute over his identification and the worst part is that no cross- examination has been at his end. PW-3 has not claimed identification of anybody. PW-4, informant had not claimed identification of the appellant Md. Rijaul. So, against Md. Rijaul, there happens to be two identifications.
15. It is evident from the record that PW-1 and PW-2 have identified shown in Court for the first time. It is needless to say that identity of accused in dock for the first time Patna High Court CR. APP (SJ) No.1144 of 2016 dt.30-01-2019 15/15 will not cast dent in the prosecution case, nor make the identification inadmissible, rather it has got priority being substantive evidence and has been properly acknowledged by the Apex Court, consistently.
16. Consequent thereupon, both these appeals lack merit and is accordingly, dismissed with modification erasing of Section 34 I.P.C. in the background of Section 391 I.P.C. Appellant Shahin @ Md. Shain is under custody whereupon, he will remain till saturation of the sentence. While bail bond of appellant Md. Rijaul is hereby cancelled directing him to surrender before the learned lower Court within fortnight to serve out the remaining part of sentence failing which, the learned lower Court to proceed against him in accordance with law.
(Aditya Kumar Trivedi, J) vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 04.02.2019 Transmission Date 04.02.2019