Patna High Court
Ramadhar Singh @ Ramadhar Ahir & Ors vs State Of Bihar on 29 June, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.288 of 1998
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1. Ramadhar Singh @ Ramadhar Ahir
2. Nathuni Singh @ Nathuni Ahir
3. Durga Prasad Singh @ Durga Prasad Ahir &
4. Harihar Singh @ Harihar Ahir
.... .... Appellants
Versus
State Of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. Imran, Advocate
For the Respondent : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 29-06-2012 Heard Mr. Imran, learned counsel for the appellants and Mr. Ajay Mishra, learned counsel for the State.
2. The appeal has been preferred against the judgment and order dated 21.07.1998 passed in Sessions Trial No.136 of 1984 by the learned Xth Additional Sessions Judge, Sasaram at Rohtas by which the appellants have been held guilty for the offence punishable under Sections 449 and 380 of the Indian Penal Code. They have been sentenced to undergo rigorous imprisonment for five years under Section 449 and three years under Section 380 of the Indian Penal Code.
3. The prosecution is based on the fardbeyan of P.W.9 Mishri Ram, which was recorded on 05.12.1983 at 10.30 A.M. at Baghela police, station by one Ayodhya Prasad Singh, a Sub- Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 Inspector of Police, regarding an occurrence which is said to have taken place on 04.12.1983 at 11.30 A.M.
4. In the fardbeyan, the informant has alleged, inter- alia, that on the relevant date and time of occurrence 10-12 miscreants entered into the courtyard of the informant after scaling over the roof and opened the door from inside. The informant, at the relevant time was sleeping at the roof of Jananikita (a portion of the house meant for female members of the family). At that time his son Rajendra Ram was sleeping in a room of Jananikita. The miscreants started knocking the door of the room in which informant's son Rajendra Ram was sleeping. The informant claims to have identified the appellants in the torchlight. He alleges that appellant no.1 Ramadhar Singh @ Ramadhar Ahir was armed with garasa, whereas, appellant no.2 Nathuni Singh @ Nathuni Ahir and appellant no.3 Durga Prasad Singh @ Durga Prasad Ahir were armed with pistol and appellant no.4 Harihar Singh @ Harihar Ahir was armed with gun. The informant started shouting, on which, co-villagers Shivpujan Chamar, Ramjanam Ram, Sripati Ram and others came. They started pelting 'khapra' (roof tiles) on the miscreants. The informant alleges that the appellant no.1, Ramadhar Singh @ Ramadhar Ahir, was threatening his son to open the door of the room. They wanted to kill the informant and his son. As per informant, the miscreants stayed in the courtyard of his house for about one hour. They resorted to 10-12 rounds of firing. However, when the villagers assembled they fled away. The informant has further alleged that after the miscreants left Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 the place he found that they had taken away utensils and other household articles worth Rs.400/- from his house. The motive attributed in the FIR for commission of the offence is that the informant was a witness against appellant no.4 in connection with a criminal case lodged earlier. The informant was also a witness against appellant no.2 in connection with another criminal case lodged earlier. The informant has also stated that a Sanha was also lodged prior to the occurrence against some of the appellants. In sum and substance as alleged due to the enmity existing from before, the appellants committed the offence.
5. On the basis of the aforesaid fardbeyan, a formal FIR being Baghela(Nokha) P.S.Case No.184 dated 05.12.1983, was registered under Sections 452 and 380 of the Indian Penal Code against the appellants and investigation was taken up.
6. After completion of investigation, the police found the allegation made in the FIR to be true and submitted chargesheet under Sections 449 and 380 of the Indian Penal on 29.12.1983. The learned Magistrate took cognizance of offence and after complying with the formalities prescribed under Section 207 of the Code of Criminal Procedure committed the case to the court of Sessions for trial on 16.04.1984. The trial court, thereafter, framed charge against the appellants under Sections 449 and 380 of the Indian Penal Code on 25.04.1991 to which they pleaded not guilty and claimed to be tried.
7. In course of trial, the prosecution examined Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 altogether nine witnesses to prove its case. The defence of the appellants was of false implication due to admitted enmity existing from before between the parties.
8. In the present case P.W.1 Basant Ram, P.W.2 Ramjanam Ram, P.W.4 Santlal Ram and P.W.5 Shivpujan Ram are all hearsay witnesses. They all are co-villagers of the informant as well as the appellants. They claim that on shouting of the informant and his family members they came to the place of occurrence. They pelted bricks and 'khapra' on the miscreants. However, the miscreants resorted to firing and fled away. It is pertinent to note it here that the appellants are co-villagers of the informant and the witnesses. The witnesses claim that they reached at the place of occurrence on shouting of the informant and his family members and that that time the miscreants were already present inside the house. They left the place after their arrival, in their presence, but, they themselves could not identify any of the appellants. They in their deposition state that they came to know about participation of the appellants in the alleged offence from the informant after the miscreants left the place.
9. P.W.6 Rajendra Ram is son of the informant. In his deposition, he is consistent with the informant's version in the FIR regarding the respective weapons with which the appellants are alleged to be armed. He states that when the miscreants entered inside his house he was sleeping with his wife in a room of Jananikita of the house. He woke up when the miscreants started knocking the door. He immediately went to the roof of the house together his wife and from Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 there he could identify the appellants. However, he could not identify the other 6-7 miscreants who were also present there. He states that the miscreants resorted to 8-10 rounds of firing. He raised alarm. His father was shouting from inside his room. On the alarm being raised by them several villagers came to the place of occurrence. They pelted bricks, 'khapra' etc on the miscreants and after that the miscreants fled away. In cross-examination he admits that the appellants are on inimical terms from before. He also admits that there was no sign or mark present either on the door of the room in which he was sleeping or on the door of the room in which his father was sleeping. He further admits that the miscreants were not concealing their face. He further admits that there was no sign of firing present at the place of occurrence.
10. P.W.7 Guljaro Devi is the wife of the informant. She states in her deposition that at the time of occurrence she was sleeping in a room together with her daughter. She identified the miscreants in torchlight. She also states that she threw bricks upon the miscreants from the window of the room in which she was sleeping. On the shouting made by the inmates of the house several villagers came to the place of occurrence. They also started pelting bricks, 'khapra' and stones on the miscreants as a result of which the miscreants fled away. She claims that the miscreants had entered inside the house in order to kill her husband as he was on inimical terms with them. In cross-examination she admits that the miscreants had fired towards the window from where she was throwing bricks Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 upon them but there was no sign of firing either on the window or on the door or on the wall of the house, though the miscreants had fired 10-12 times.
11. P.W.9 Mishri Ram is the informant of the case. In his deposition he has reiterated the statement made by him before police initially. He has tried to explain the delay in the institution of the FIR by saying that in the same night a neighbour, namely, Ramkrit Chamar had died and thus the information was given to the police on the next day. He identified his signature on the fardbeyan which has been proved and marked as Ext-1. He has also proved signature of Santlal Ram(P.W.4), on the fardbeyan, which has been marked as Ext-1/1. In cross-examination he has stated that there are three rooms in the house, the doors of which, opens in the courtyard. The miscreants had knocked the door of all the three rooms. They had also threw bricks on the door but there was no sign or mark of violence present on the door. He further states that though 10-12 rounds of firing was made but it hit none. He admits that the firing made by the miscreants caused damage to the roof tiles. He further admits that the firing made by them also hit wall of the house. However, he admits that no sign of firing could be traced either on the wall or on the roof of the house. He also admits that no empty cartridge or pellet was found or recovered at the place of occurrence. He states that the articles taken away by the miscreants were worth Rs.400/-.
12. On the basis of the evidence of witnesses as discussed above being recorded during trial, the court below held the Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 appellants guilty under Sections 449 and 380 of the Indian Penal Code.
13. I have heard the parties and perused the record. What is to be seen is, as to whether, on the basis of the quality of evidence adduced, the judgment and order of conviction and sentence recorded by the trial court can be sustained. In order to examine the issue it would be useful to quote Section 449 of the Indian Penal Code under which the appellant has been convicted. Section 449 of the Indian Penal Code reads as follows:-
"449. House-trespass in order to commit offence punishable with death.--
Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine."
14. To hold a person guilty, for the offence under Section 449 Indian Penal Code the prosecution must prove that the accused committed house tress-pass in order to commit an offence punishable with death. In the present case though there is allegation that the appellants were variously armed with deadly weapon and the informant and his family members were present inside the house but surprisingly no one has sustained any injury. The intention to kill has to be inferred from the attending circumstances. Had there been any intention to kill any one, the appellants must have forced their entry inside the room and tried to commit murder but nothing of that sort happened. To the contrary the witnesses state that there was no sign/mark of violence on the door of the rooms in which the informant Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 and his son were present.
15. I further find that though the witnesses allege that the miscreants resorted to 10-12 rounds of firing hitting the roof and the wall of the house but curiously enough they say that there was no sign of firing either on the roof or on the wall of the house. The prosecution witnesses admit in their deposition that at the place of occurrence neither any cartridge nor any pellet could be found.
16. I further find it surprising that when the villagers in large number assembled at the place of occurrence and pelted bricks, stones, 'khapra' etc upon the miscreants who were all co- villagers, they failed to identify them. Apart from P.Ws.6, 7 and 9 all other witnesses are hearsay. They deposed in court that they could come to know about participation of the appellants in the alleged offence from the informant.
17. The prosecution has also not produced the investigating officer of the case in trial. There is no explanation, whatsoever, for his non-examination. The defence has certainly been prejudiced due to the non-examination of the investigating officer. Had investigating officer been examined, the defence could have an opportunity to cross-examine him on the point of his objective finding of the place of occurrence. In course of trial, the defence has drawn attention of the witnesses also towards their previous statement made before police. The contradictions, if any, could have been taken only if the investigating officer would have been examined. Thus, in my view, non-examination of the investigating officer has seriously Patna High Court CR. APP (SJ) No.288 of 1998 dt.29-06-2012 prejudiced the defence.
18. Another important aspect to be considered in this case is that the appellants are co-villagers of the informant. They were admittedly on inimical terms from before. They were known to each other. Under such circumstances, it is hard to believe that they would have taken the risk to commit the offence alleged, without, concealing their face.
19. Thus seen, the credibility of the witnesses and their statement with regard to the manner of occurrence being in serious doubt, the only conclusion can be that the prosecution has failed to prove its case beyond reasonable doubt.
20. In the result, I allow the appeal, set aside the judgment and order dated 21.07.1998 passed by the learned Xth Additional District & Sessions Judge, Sasaram in Sessions Trial No.136 of 1984. The appellants are discharged from the liabilities of their bail bonds.
Patna High Court, (Ashwani Kumar Singh, J) Dated, 29th June, 2012, Brajesh Kumar/AFR