Jharkhand High Court
Sukhdeo Rai And Anr. vs State Of Bihar (Now Jharkhand) on 19 September, 2005
Equivalent citations: 2006CRILJ913, [2006(1)JCR143(JHR)]
Author: R.K. Merathia
Bench: R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. This case has been transferred from Patna. As no body appeared on behalf of the appellants, Miss. Sweety Topno assisted the Court on behalf of the appellants.
2. This appeal arises out of the judgment dated 10.6.1994 passed by Shri Mahesh Prasad Tiwari, 1st. Additional Sessions Judge, Dumka convicting the appellants under Section 396 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for ten years.
3. One Bishwajit Hembrom, the informant of the case (PW 9) lodged a first information report on 28.1.1992 at 5 a.m. that in the previous night, he, his wife Smt. Sanodi Kishu (PW 4) and his brother Manoj Kumar Hembrom (PW 15) were sleeping in their house and his grand mother (Manti Soren) was sleeping in the Kitchen. The doors of the house were closed with the help of a piece of wood "Hurka". At about 1 a.m. in the night, the informant and his wife woke up due to dashing on the door. Torch flashed in the room and in the torch light, he saw 4 to 6 dacoits. The moment the informant woke up, one of the dacoits attempted Tangi blow at his forehead. The dacoits were demanding cash. A second blow was attempted by one of the dacoits. The informant succeeded in snatching tangi from one of them. His brother (PW 15) was also injured by one of the dacoits. In the meaning, he also heard cries of her grand mother from the kitchen. The dacoits looted various articles and fled away. The informant found that the clacoits had killed grand mother and looted away her gold nose ornament and cash.
4. The prosecution examined 17 witnesses, out of whom, the material witnesses arc the informant (PW 9), his wile (PW 4) and his brother (PW 15). PW 5 is the Doctor. who examined the injuries of PW 15. PW 12 is the Judicial Magistrate, who conducted the Test Identification Parade and PW 16 is the Officer-in-Charge of the Police Station and the Investigating Officer of the case, who has found the mark of violence on the door of the house and seized blood stained soil from the kitchen.
5. Miss. Sweety Topno. learned Counsel for the appellants submitted that the appellants were known to the informant and his wife but they were not named in the first information report. It is further submitted that the only source of identification of the dacoits was a dhibri which was seized by the police from the place of occurrence but that dhibri was not produced in the Court at the time of trial and that the appellants were shown to the informant and his wife by the police before they were put on the test Identification parade and thus the said test identification parade appears to be no of evidentiary value.
6. Mr. Tapas Roy. learned Additional Public Prosecutor appearing for the State submitted that dacoity took place at 1 a.m. in the night in which the brother of the informant had sustained injuries on his person. The first information report was lodged just after four hours of the alleged occurrence i.e. at about 5 a.m. He submitted that the Informant (PW 9) has stated in paragraph 6 of his cross-examination that the dacoits were having turbans and they coloured their blackish. He has further stated that when the appellants were caught and brought by the police in the village, he his wife and his brother identified and affirmed that the appellants had committed dacoity. He further submitted that the evidence of the informant's wife (PW 4) and the Informant's brother (PW 16). who also sustained Injuries, are consistent. The injuries sustained on the person of PW 15 had been proved by the Doctor (PW 5) and the injury report was marked as Ext. 6. He further submitted that the informant, his wife and his brother were only the natural witnesses on the point of dacoity which took place at 1 a.m. in the night and all the three witnesses had identified the appellants when they were brought by the police in the village and they were put in the test identification parade and also in the Court, in these circumstances, he submitted that only because the names of the appellants were not disclosed by the informant in the first information report and the dhibri. which was seized, was not produced in Court, the prosecution case cannot be brushed aside. There is nothing on the record to show that the identity of the appellants was disclosed by the wife of the informant before the first information report was lodged. He further submitted that the prosecution case cannot be doubted on the ground of evidence of PWs 1, 2 and 3 to the effect that the appellants were well known to the informant, his wife and his brother, inasmuch as it is stated in the first information report and the evidence of the witnesses that the docoits tried to conceal their Identity by wearing turban on their head and face.
7. After hearing the counsel for the parties and scrutinising the evidence on record carefully, 1 am Inclined to agree with the submissions of the learned Counsel for the State that the prosecution has been able to prove its case beyond all reasonable doubts that the appellants had committed the alleged crime.
8. The dacoity was committed at 1 a.m. in the night when the informant, his wife and his brother were sleeping In their house. The docoits concealed their identity. The first information report was lodged just after four hours of the occurrence. The in formant. his wife and his brother identified . the appellants when they were caught and brought by the police in the village. In the test identification parade and in Court. The appellant No. 1 has been identified as one of the docoits who caused tangi injury on he person of PW 15. the brother of the informant and sharp cut Injuries on his vital parts of the body has been proved, whereas the appellant No. 2 has been identified as the person, who killed grand mother of the informant.
9. PWs. 1 and 3 have staled that the appellants are fully known to the informant and his brother and they arc the members of the Mukti Morcha. but only because the informant party knew the appellants, the evidence of the informant, his brother and his wife cannot be doubted. There is nothing on the record to show that the informant learnt about the identity of the appellants prior to lodging of the first information report. There is no motive for false implication. The appellants concealed their identity at the time of dacoity. The injury cased by appellant No. 1 on the brother of the informant has been proved. The murder of grand mother of the informant by appellant No. 2 is also proved.
10. On the question of sentence, learned Counsel for the appellants submitted that the alleged occurrence is of January, 1992 and the appellants have suffered this case for more than a decade and they have remained in jail for more than three and half years out of the sentence of ten years. It is further submitted that no criminal antecedent has come on record against the appellants and, therefore, a chance may be given to them to amend themselves and no useful purpose will be served by sending them to jail to serve out the remaining period of sentence as ordered by the learned trial Court.
11. In the circumstances noticed above, the judgment of conviction is affirmed with modification in the sentence to the extent of the period undergone by the appellants in jail, subject to the condition that the appellant No. 1 will deposit Rs. 15.000/- and appellant No. 2 will deposit Rs. 25.000/- in the trial Court within two months for payment to the informant or his heirs, by way of compensation, failing which, the appellant No. 1 shall undergo rigorous imprisonment for one and half years and appellant No. 2 shall undergo further imprisonment for two and half years. If the aforesaid deposits are made by the appellants within the time aforementioned, or they suffer the prison in default thereof, they shall be discharged from the liabilities of their bail bonds.
12. With the above modification in the sentence, this appeal is dismissed.