Patna High Court
Raghubir Chamar @ Ahir And Ram Naresh ... vs The State Of Bihar on 27 July, 2007
Equivalent citations: 2008(1)BLJR878
Author: Syed Md. Mahfooz Alam
Bench: Shiva Kirti Singh, Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
Page 0878
1. This criminal appeal has been preferred by the above named two appellants against the judgment and order dated 28.1.1988 passed by the learned Page 0879 Additional Sessions Judge 4th Ara, Sri S.M.I.I.F. Alam, in Sessions Trial No. 375 of 1984 arising out of Dhansoi P.S. case No. 1 of 1984 whereby he has been pleased to convict both the appellants, namely, 1. Raghubir Chamar @ Ahir and 2. Ram Naresh Yadav @ Naresh Ahir under Section 396 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.
2. The prosecution case as per the statement given by P.W.11, Ramadhar Pathak, before the Police Officer of Dhansoi P.S. in the night of 3.7.84 at 3.30 A.M. in presence of Chaukidar, Suresh Yadav, in brief, is that in between the night of 2nd and 3rd July, 1984, he was sleeping at his Darwaza (Baithka) situated at a distance of about 20-30 yards from his residential house towards south west. At about mid night he woke up on hearing sound of barking of dogs whereupon he flashed torch light and saw 6/7 dacoits, who were armed with gun, bhala and lathi, standing near his house. Out of them three dacoits were getting down in his Angan from the roof of his house, whereas other three dacoits were standing on the boundary wall of his house. On seeing dacoits, he raised halla of dacoits-dacoits whereupon some of the dacoits started firing from the gun and some of them started looting the house hold articles. On hearing the cry of the informant and also on hearing the sound of firing the villagers and other relatives of the informant started assembling. The villagers and the relatives tried to surround the dacoits, who started fleeing away towards west after looting the house hold articles. The informant, his brother Ram Awadhesh Pathak and other villagers started chasing the dacoits. The informant and his brothers Ram Awadhesh Pathak pounced upon the dacoits and attacked the dacoits with farsa, lathi, whereupon, the dacoits also retaliated with lathi blow and gun shot. The informant gave a lathi blow on the head of one of the dacoits, who was carrying a box on his head, as a result of which, the said dacoit fell down and then he started running away after throwing the box. In the meantime the informant's brother Ram Awadhesh Pathak sustained fire arm injury and he fell down. The pillet had entered into the abdomen of the informant's brother Ram Awadhesh Pathak, as a result of which, the informant's brother died at the spot. The informant became terrorised and due to that he decided to abandon further chasing of dacoits. The villagers also became scared due to the killing of informant's brother and they also abandoned the chasing of the dacoits. About 15-20 dacoits had participated in the dacoity. The informant claimed that he had identified the dacoits in the torch light and further claimed to identify the dacoits on seeing their faces again. During the scuffle with the dacoits besides the informant's brother Ram Awadhesh Pathak (deceased), the informant and several other persons, namely, Sipahi Yadav(P.W.8), Kabilash Yadav (P.W.9) had also sustained injury by means of lathi and pillets at the hands of the dacoits. The dacoits looted away rupees eleven thousand cash and other articles including ornaments, clothes, wrist watch etc.
3. After recording the statement of informant, Ramadhar Pathak, Dhansoi police registered Dhansoi P.S. case No. 1/84 under Section 396 of the Indian Penal Code against 15-20 unknown dacoits and after registering the case Sri Rameshwar Mishra (P.W.14) the then Officer In charge of Dhansoi P.S. took the charge of investigation of the case. During the investigation of the case, the complicity of these appellants and some other accused persons came to light and, so, after completing the investigation the police submitted chargesheet under Section 396 of the Indian Penal Code against the appellants and some other accused persons, on the basis Page 0880 of which the learned A.C.J.M., Buxar took cognizance of the offence and then committed the case to the Court of Sessions vide order dated 18.10.84.
4. On 21st July, 1985, charge under Section 396 of the Indian Penal Code was framed against the appellants and others by the 4th Additional Sessions Judge, Sri Kedar Nath. The accused persons pleaded not guilty to the charge and then they were put on trial. The defence of the appellants before the trial court was that they had not committed any offence and they have been falsely implicated in this case on account of enmity and grudge and rivalry in the village.
5. It appears that the trial Court did not accept the defence of the appellants and found them guilty under Section 396 of the Indian Penal Code. However, other accused persons were acquitted.
6. It appears from the judgment of the trial court as well as from the oral and documentary evidence available on record that the factum of commission of dacoity in the house of the informant Ramadhar Pathak and during the commission of the said dacoity the murder of Ram Awadhesh Pathak is not disputed and the same stands well proved from the oral as well as documentary evidence like post mortem report and inquest report. Therefore, I feel no necessity to discuss this point with regard to the commission of dacoity and the murder of Ram Awadhesh Pathak during the commission of the said dacoity.
7. As stated above, altogether eight accused persons were put up on trial but only appellant Raghubir Chamar @ Ahir and Ram Naresh Yadav @ Naresh Ahir were found guilty for the offence under Section 396 of the Indian Penal Code. Rest accused were given either clean acquittal or benefit of doubt. It further transpires that the conviction of both the appellants is based mainly on the testimony of P.W.3 Bharat Pathak, P.W.7 Rama Nand Upadhayay and P.W.11 Ramadhar Pathak. Besides the evidence of the above mentioned three witnesses the learned trial court has also placed reliance upon the evidence of P.W.12 Daroga Singh, the then Judicial Magistrate, who had conducted T.I.P.
8. From perusal of the evidence of P.W.3 Bharat Pathak, who happens to be the son of deceased Ram Awadhesh Pathak, it appears that he has claimed to identify two dacoits, namely Harihar Yadav and appellant Naresh Yadav (Harihar Yadav has already been acquitted). His evidence further shows that he has also identified appellant Ram Naresh Yadav @ Naresh Ahir in the dock. He has deposed that during scuffle with the dacoits his uncle Ramadhar Pathak (P.W.11) had assaulted appellant Ram Naresh Yadav with lathi. He has further deposed that appellant Ram Naresh Yadav @ Naresh Ahir was running away with a box on his head and on being attacked by lathi the box fell down. P.W.3 further deposed that in T.I.P. he had identified one of the dacoits, namely, appellant Raghubir Ahir @ Raghubir Chamar. The evidence of P.W.3 shows that he has given very convincing explanation of identifying appellant Ram Naresh Yadav at the time of dacoity as he was running away with a box on his head and who was given lathi blow by P.W.11 (informant). This version of the occurrence also finds full corroboration from the evidence of P.W.11 and, as such, I am of the view that P.W.3 appears to be a trustworthy witness on the point of identification of the appellants.
9. The evidence of P.W.7 Ramanand Upadhayay is that at the time of dacoity he was sleeping on a cot. Four dacoits came near his cot; one of them flashed torch light Page 0881 and other three persons tied his hand and feet with Dhoti. At the point of gun they asked him to remain quiet and thereafter the dacoits committed dacoity in the house of Ramadhar Pathak. He has further deposed that he had identified one of the dacoits, namely, Raghubir Ahir @ Chamar in T.I.P. He has identified the said accused by pointing out that the said accused was standing in the dock. His evidence finds corroboration from the evidence of P.W.12, who had conducted T.I. Parade.
10. P.W.11 Ramadhar Pathak is the informant of this case in whose house dacoity was committed. He has given vivid description of the occurrence of dacoity and how he and other witnesses along with the villagers chased the dacoits, whereupon, scuffle took place between the villagers and the dacoits in which his brother Ram Awadhesh Pathak was killed at the hands of the dacoits. He has further deposed that he had attacked the dacoits with lathi and had given lathi blow to one of the dacoits, who was fleeing away with a box on his head and due to assault he had thrown away the box. He has further deposed that he had identified the said dacoit who was appellant Ram Naresh Yadav @ Naresh Ahir and then P.W.11 identified the appellant Ram Naresh Yadav @ Naresh Ahir in dock. He has further deposed that in T.I.P. he had identified another dacoit, namely, Kashi Ram (since Kashi Ram has been acquitted the said evidence of P.W.11 is not relevant in this regard).
11. From the evidence of the above said witnesses, it appears that P.W.3 Bharat Pathak and P.W.11 Ramadhar Pathak, the informant, had identified appellant Ram Naresh Yadav @ Naresh Ahir at the time of commission of dacoity while he was running away with a box on his head after commission of the dacoity. It further transpires from the evidence of the above witnesses that the appellant Raghubir Chamar @ Ahir was identified by P.W.3 Bharat Pathak and P.W.7 Rama Nand Upadhayay in T.I.P. The evidence of P.W.3 and 7 with regard to the identification of appellant Raghubir Chamar @ Ahir in T.I.P. stands corroborated from the evidence of P.W.12 Daroga Singh, the then Judicial Magistrate, Chapra, and the T.I.P. chart (Exhibit-2). At para 2 of his evidence P.W.12 has deposed that P.W.3 Bharat Pathak and P.W. 7 Rama Nand Upadhyay had identified suspect Raghubir Chamar in T.I.P. in his presence. He has further deposed that Rama Nand Upadhyay had also stated that suspect Raghubir Chamar had tied his hand and feet with Dhoti at the time of commission of dacoity. Thus, it appears that there is identification of both the accused by at least two witnesses.
12. It has been argued by the learned Counsel appearing on behalf of the appellants that the testimony of the above said witnesses with regard to the complicity of the appellants in the occurrence of dacoity is not reliable in view of the fact that both the appellants are not named in the F.I.R. and there is abnormal delay of more than two months in holding T.I.P. Learned Counsel placed fard bayan of P.W.11 Ramadhar Pathak recorded by P.W.14 Rameshwar Mishra, Officer In Charge of Dhansoi Police Station which is Exhibit-3 in this case. Referring to the fard bayan (exhibit-3), the learned Counsel submitted that this fard bayan was recorded at Dhansoi Police Station at about 3.20 A.M. on 3.7.84 after three and half hour of the alleged occurrence of dacoity but the fard bayan does not contain the name of any dacoit. She submitted that P.W.11 (informant) has admitted in his evidence that after the alleged occurrence he had a talk with the villagers and so, non-appearance of name of any of the accused establishes beyond doubt that none of the prosecution witness had identified any of the dacoits at the time of dacoity, so, the naming of appellant Ram Naresh Yadav @ Naresh Ahir at the trial stage by the informant is after thought and with malafide intention due to some previous enmity. I am of the view that this argument is not at all convincing in view of the fact that the I.O.(P.W.14) has deposed in para 18 of his evidence that in his subsequent statement the informant (P.W.11) had stated that the dacoit, who was running away with the box on his head and to whom he had inflicted lathi blow was like Ram Naresh Yadav @ Naresh Ahir and, so, it can not be accepted that the name of appellant Ram Naresh Page 0882 Yadav @ Ahir was introduced amongst the dacoits after much delay. Likewise, the evidence of P.W.3, Bharat Pathak, who is non else but the son of deceased, also shows that in his statement recorded under Section 161 Cr.P.C. he has disclosed the name of the appellant Ram Naresh Yadav @ Naresh Ahir amongst the dacoits and had also disclosed that he was running away with a box on his head who was given a lathi blow by his uncle Ramadhar Pathak (informant).
13. Thus, I have no hesitation to hold that the learned trial court has rightly believed the evidence of P.W.3 and 11 on the point of identification of appellant Ram Naresh Yadav @ Naresh Ahir at the time of dacoity and there is no reasonable ground to differ with the finding of the trial court on this ground.
14. It has been submitted by the learned Counsel that the appellant Ram Naresh Yadav @ Naresh Ahir was known to P.W.3 and P.W.11 from before the date of occurrence and there was some dispute with regard to the irrigation of land of the appellant for taking water from the Aahar from which the informant also used to take water for irrigating his field. I am of the view that the suggestion thrown by the defence counsel to P.W.11 establishes that appellant Ram Naresh Yadav @ Naresh Ahir was known to the prosecution witnesses and, therefore, naming of appellant Naresh Yadav in their 161 statement by P.W.3 and P.W.11 can not be said to be surprising and since there is no oral or documentary evidence on record to show that on account of differences relating to the irrigation of land some quarrel had taken place between the informant and the witnesses on the one hand and appellant Ram Naresh Yadav @ Naresh Ahir on the other hand, the argument that the appellant Ram Naresh Yadav @ Naresh Ahir has been implicated in this case due to enmity, can not be accepted.
15. Regarding the identification of appellant Raghubir Chamar @ Ahir in T.I.P by P.W.3 Bharat Pathak and P.W.7 Rama Nand Upadhyaya, it has been argued by the learned Counsel for the appellants that admittedly, the T.I.P. was held two months after the said occurrence of dacoity and, as such, the delay in holding T.I.P. is fatal. In support of this argument, learned Counsel has placed reliance upon the decision given in the case of State of Andhra Pradesh v. Dr. M.V. Ramana Reddy and Ors. and in the case of Rajesh Govind Jagesha v. State of Maharastra and its analogous case reported in 2000(1) BBCJ IV 89. In the case of State of Andhra Pradesh v. Dr. M.V. Ramana Reddy, the Apex Court held that if there is no valid explanation tendered by the prosecution for delay in holding identification parade and the defence has suggested in the cross-examination to the P.Ws. that in the meantime the accused, who were in custody, were shown to the witnesses then in that case the accused is entitled to benefit of doubt. In the case of Rajesh Govind Jagesha, the Apex Court held that if identification parade is held after a prolong delay for which no explanation has come from the side of prosecution and if the T.I.P. is held in violation of settled principles of law then in such cases the accused is entitled to benefit of doubt.
Page 0883
16. On the basis of the above two decisions, learned Counsel for the appellant has argued that since there is unexplained delay of about two months in holding T.I.P. and there was every possibility that the appellant might have been shown to the witnesses before holding of T.I.P., as such, the testimony of P.W.3 and 7 on the point of identification of appellant Raghubir Chamar @ Ahir should not be believed. But I can not accept this argument of the learned Advocate of the appellant in view of the fact that no question was put to the I.O. in cross-examination as to why the appellants could not be put up for identification parade earlier. The defence counsel has also not put any question to P.W.3 and P.W.7 that the appellant Raghubir Chamar was shown to them by the police prior to the holding of T.I.P. Under the circumstances, I find that the facts of the present case differ with the facts of the above referred two cases and the same can not be applied in this case. However, the reply on all these points with regard to the identification and delay in holding T.I.P. raised by the counsel for the appellants has been given by the Apex Court in the case of Pramod Mandal v. The State of Bihar and Ors. reported in 2005 SCC (Cri.) 75. With regard to the delay in holding T.I.P. and the number of identifying witnesses, the Apex Court has held that it is neither possible nor prudent to lay down any invariable rule as to the period within which the T.I.P. must be held or the number of witnesses who must correctly identify the accused to sustain his conviction. The Apex Court has observed that these matters must be left to the courts of fact to decide in the facts and circumstances of each case. The Apex Court has further held that when the defence failed to impute any motive to the prosecution for delay in holding the T.I.P. and if there is no irregularity in holding the T.I.P. the delay of one month in holding T.I.P. is not fatal to the prosecution case. It further transpires that the Apex Court while coming to the above conclusion has considered the case of Wakil Singh v. The State of Bihar 1981 Supp SCC 28, Subhas v. State of U.P. , Soni v. State of U.P. , Anil Kumar v. State of U.P. , Sk. Hasib v. State of Bihar and several other decisions. I would like to quote para 19 of the decision in which the Apex Court has considered the case of Anil Kumar v. State of U.P. which runs as follows:
Learned Counsel for the State has also relied upon the decision of this Court in Anil Kumar v. State of U.P., wherein the test identification parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decision in Brij Mohan v. State of Rajasthan, Daya Singh v. state of Haryana and State of Maharashtra v. Suresh concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him, he was killed by the assailants while the witness also received serious injuries. These were circumstances which would impress upon the mind of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get embossed. A mere lapse of 47 days would not erase the facial expressions from their memory.
17. The facts of this case are very much similar to the facts of the above mentioned case as in this case also the witnesses surrounded the dacoits, scuffled with them Page 0884 and in process they received injuries at the hands of dacoits, and one of them was killed. These circumstances are sufficient to come to the finding that the witnesses had sufficient opportunities to have a look of dacoits and so, the delay of about two months in holding T.I. Parade can not be fatal as during this period the facial impression of the dacoits will not disappear from the memory of the witnesses. Thus, relying upon the decision of Apex Court in the case of Pramod Mandal, I hold that in the instant case the delay of about two months in holding T.I.P. is not fatal for the prosecution.
18. It has been argued by the learned Counsel for the appellant that under Section 313 of the Code of Criminal Procedure, it is mandatory for the Court to draw the attention of the accused to all the inculpatory materials brought on record against him to afford him opportunity to explain the circumstances under which such materials were brought against him and without affording him the opportunity to explain the circumstances no evidence can be used against him. In this regard, she has placed reliance upon the decision of the Apex Court in the case of Basavaraj R. Patil and Ors. v. The State of Karnataka reported in 2001 SCC (Cri.) 87. Relying upon the said decision, the learned Counsel has argued that the statement of appellant Raghubir Chamar @ Ahir recorded by the trial Court under Section 313 Cr.P.C. will show that the trial Court did not put any question to the appellant to explain the circumstances appearing against him with regard to his identification in T.I.P. by P.Ws. 3 and 7 and, so, the evidence of P.Ws.3 and 7 that they had identified appellant Raghubir Chamar in T.I.P can not be used against him. I am of the view that this is not the correct interpretation of Section 313 Cr.P.C. The correct position is that if the omission to draw the attention of the accused to explain the circumstances appearing against him causes prejudice to the accused only then such omission is fatal but if no prejudice is caused to the accused for such omission then the accused will not get any benefit of such omission. In this regard, reliance can be placed upon the decision of the Apex Court in the case of State (Delhi Administration) v. Dharampal reported in 2003 SCC (Cri.) 1012. In the instant case, learned defence counsel has failed to satisfy this Court that the omission to draw the attention of the appellant Raghubir Chamar with regard to his identification by P.W.3 and 7 in T.I.P. has occasioned in failure of justice. I am, therefore, of the view that by referring to the gist of deposition of witnesses in Court and by asking the question from the appellant by the trial court whether he (appellant) has got anything to say in his defence the learned trial court had provided him opportunity to explain the circumstances under which he was identified in T.I.P. Thus, it is established that the omission to specifically draw the attention of the appellant Raghubir Chamar with regard to his identification in T.I.P. has not caused any prejudice to the appellant and, so, the omission is not fatal to the case of the prosecution.
19. It has further been argued that the witnesses have deposed that they had identified the dacoits in the torch light but the said torch which was the means of identification was not produced in Court and, therefore, in absence of means of identification the evidence of the prosecution witnesses with regard to the identification of the appellants amongst the dacoits does not seem to be trustworthy and on this score alone the appellants deserve acquittal. I am unable to accept this argument of the learned defence counsel in view of the fact that P.W.3, P.W.7 and P.W.11, who have claimed to identify the two appellants, had occasion to see the faces of the appellants from a very close range. Not only this, the witnesses had opportunity to see the Page 0885 appellants very closely because when the villagers surrounded the dacoits, the dacoits started scuffle with the witnesses, as a result of which, the prosecution witnesses sustained injury at the hands of the dacoits in the said scuffle. There is nothing on record to show that on the date of dacoity it was a pitch dark night. Under the above circumstances, I have got no hesitation in holding that even in absence of any means of identification the witnesses had occasion to identify the dacoits as they had seen the dacoits from very close range. Further, in the earliest version, i.e. Fard-bayan the informant has disclosed that he could identify the dacoits whom he had seen in the light of his torch as well as torches of dacoits. It appears that the I.O. omitted to direct the informant to produce his torch. In such view of the matter, I reject the argument of the learned defence counsel in this regard.
20. It has been submitted by the learned defence counsel that the defence has brought on record Exhibit-A, formal F.I.R. of Rajpur P.S. case No. 4 dated 14.10.79 and the fard bayan of one Kapildeo Pathak (Exhibit-B), on the basis of which the said Rajpur P.S. case No. 4 of 1979 was instituted, to establish that the informant as well as P.W.3 and 7 were on inimical terms with appellant Raghubir Chamar but the learned Counsel failed to show that the informant and P.W. 3 and 7 were closely related to the said Kapildeo Pathak and due to enmity they had motive to falsely implicate appellant Raghubir Chamar. There is also nothing on record that whether the said case resulted in conviction of appellant Raghubir Chamar or in his acquittal. In the circumstances, I am unable to accept the argument that Exhibit-A & B of the defence prove that the informant and the witnesses were on inimical terms with appellant Raghubir Chamar from before the date of occurrence.
21. Having regard to the facts and circumstances of the case, I do not find any merit in this appeal and, as such, the same is hereby dismissed. The conviction of the appellants under Section 396 of the Indian Penal Code and sentence of rigorous imprisonment for life passed against the appellants by the learned trial court are hereby affirmed. Since both the appellants are on bail, as such, their bail bonds are hereby cancelled and they are directed to surrender before the court below at once to serve out the remaining period of sentence. The learned court below is also directed to take necessary steps for arrest of the appellants to serve out the remaining part of their sentences if they do not surrender.
22. In the result, this appeal is dismissed.
Shiva Kirti Singh, J.
23. I agree.