Patna High Court
Kapil Singh vs The State Of Bihar on 26 August, 2014
Author: Gopal Prasad
Bench: Gopal Prasad
Patna High Court CR. APP (SJ) No.221 of 2013 dt.26-08-2014
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.221 of 2013
Arising Out of PS.Case No. -184 Year- 2010 Thana -BAUNSI District- BANKA
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1. Kapil Singh S/O Late Sarjug Singh Resident Of Village- Paharpur, Police
Station- Bounsi, District- Banka .... Appellant
Versus
1. The State Of Bihar .... Respondent
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Appearance :
For the Appellant : Mr. Dhananjay Kumar Pandey, Adv.
For the Respondent : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL JUDGMENT
Date: 26-08-2014
Gopal Prasad, J. Heard learned counsel for the appellant and the State.
2. The appellant has been convicted under Sections
395 and 412 of the Penal Code and sentenced to undergo rigorous
imprisonment for ten years with a fine of rupees five thousand and,
further, sentenced to undergo rigorous imprisonment for ten years
with a fine of rupees five thousand and in default of fine to undergo
simple imprisonment for six months for offence under Section 412 of
the Penal Code, although it has been ordered that both the sentences
will run concurrently.
3. As per prosecution case, the first information
report, as given by the informant, P.W. 6, that on 07.11.2010 at 08.30
p.m. while he was relaxing, after taking meal, some unknown persons
started knocking at the door and asked to open the door. The door
was not opened. Thereafter, one person scaled the roof and 4-5
persons broke open the window and looted the articles. They even
assaulted when the wife of the informant came to his rescue and her
earrings and silver chain was snatched. The miscreants, thereafter,
taken out three boxes and attaché, which contained cash worth rupees
five thousand, sarees, cheque book, papers of the land, identity card,
other jewelleries and utensils. He claimed to have identified Kapil
Singh and Kailash Singh @ Kaila, but, could not identify rest persons.
The occurrence, alleged, occurred on 07.11.2010 at 08.30 p.m. while
the first information report lodged on 08.11.2010 at 03.00 p.m. The
fardbeyan was recorded by the Sub Inspector of Police, C.P. Yadav,
Station Head Officer, Baunsi Police Station.
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4. After lodging the first information report, on the
basis of the fardbeyan, the investigation proceeded. During
investigation, one Kapil Singh was apprehended and on his
confessional statement some articles were recovered from the back of
his house, seizure list prepared and the articles were put on test
identification parade and the informant identified the articles, which
have been marked as Exhibits 3, 4, 5 and 6 and material Exhibits I to
VII.
5. After investigation, the charge sheet submitted,
cognizance taken and after commitment the charge has been framed.
6. During the trial, seven witnesses have been
examined. P.W. 1 is Madan Pandit, P.W. is Ram Vilash Pandit, P.W.
3 is Chandradhar Pandit, P.W. 4 is Veena Devi, the wife of the
informant, P.W. 5 is Dilip Pandit, the informant, P.W. 6 is Ashok
Kumar and P.W. 7 is Chandeshwar Prasad Yadav, the investigating
officer. The trial Court, after taking into consideration, convicted the
appellant, as mentioned above.
7. The case of the defence is that the informant has
agreed to sell his land and in agreement to sale rupees fifty thousand
was advanced by the appellant to the informant for purchase of one
katha of land belonging to the wife of the informant and in a token of
receipt of amount the informant has handed over the original sale deed
for verification and the appellant has falsely been implicated to grab
and misappropriate the amount advanced to the tune of rupees fifty
thousand. The appellant learnt about the implication of his name in
the first information report and he voluntarily went to the Police
Station and narrated the fact about the agreement to sale and produced
the sale deed, but, the police in connivance with the informant
prepared the seizure list showing the deed as a recovery from the
place as fact leading to recovery on his confession.
8. The learned counsel for the appellant submits that
there is delay in filing the first information report and no explanation
for the delay. It has, further, been contended that the informant and
his wife are the only witnesses claiming to have identified whereas on
alarm (hulla) several persons of the locality alleged to have come and
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chased the dacoits, as a procession for the emersion of idol was going,
but, none of them has identified the appellant, except the informant
and his wife. It has, further, been contended that the recovery,
alleged, from the possession of the appellant has not been found from
the house of the appellant, but, from a place behind the house, hence,
recovery can not be said to be a recovery from the possession of the
appellant. It has, further, been contended that the witnesses of the
seizure list has not been examined and no specific role has been
attributed to the appellant at the time when appellant was identified in
course of dacoity by the informant.
9. The learned counsel for the appellant has, further,
contended that the appellant is sole person, who has been tried and
the involvement of five persons not established and convicted and
place reliance upon a decision reported in A.I.R. 2008 S.C., 3248
(Raj Kumar @ Raju Vrs. State of Uttaranchal).
10. The learned counsel for the State, however,
contended that the appellant has been named in the first information
report as P.Ws. 4 and 5, the informant and his wife identified the
appellant, supported the prosecution case and, further, the police, on
investigation, has apprehended the appellant and on his confession the
looted articles have been recovered, which were identified by the
appellant in test identification parade, hence, the prosecution case has
been able to prove the charges beyond reasonable doubt.
11. Having considered the respective submissions
and material on record, the prosecution case is that the night at about
08.30 p.m. some persons started thumping the door and one scaled the
roof, entered into the house, 4-5 persons broke open the window and
entered into the house and rest come scaling the house involved in
committing the dacoity with specific mention in the fardbeyan, the
name of the appellant and the fact that the dacoits looted the box and
took the papers of land along with jewellery and clothes. P.W. 5, the
informant, supported the prosecution case about the occurrence and it
has been stated that the accused persons took articles by broking open
the boxes and taking out the brief case. The appellant was
apprehended and on his confession recovery was made, seizure list
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prepared and the article was recovered on the confession and was put
on test identification parade and witness has identified the looted
articles, which has been marked as Exhibits 2, 3, 4 and 5. P.W. 5 has
also stated his participatiion in the test identification parade and
proved the signature on test identification chart, marked as Exhibit 8.
This witness has also stated in his cross examination that he identified
the appellant in the light of lantern, hence, this witness claimed to
have identified the appellant at the time of occurrence and also
identified the appellant in the dock. P.W. 4 has also supported the
prosecution case and identified the appellant in the test identification
parade.
12. P.Ws. 1 and 2 are the witnesses, who have come
to support the prosecution case and stated that at the time of
occurrence they were involved in the procession for emersion of idol
and on alarm (hulla) they rushed and chased the dacoits and when
they returned from chase, the informant disclosed the names of
Kailash Singh and Kapil Singh amongst the accused persons. P.W. 5
is the informant, who has proved the fardbeyan and the formal first
information report. P.W. 6 is the investigating officer, stated that he
arrested the appellant along with the country made pistol for which a
separate case was instituted and in his confessional statement he
confessed that he has kept the looted articles in a gunny bag behind
his house and the gunny bag was recovered from back of his house,
which was put in test identification parade. He has proved the seizure
list, marked as Exhibit 9 and has also proved the test identification
chart in the writing of the Circle Officer, which has been marked as
Exhibit 10. However, taking into consideration the evidence, P.Ws. 4
and 5 supported the prosecution case about the dacoity and the
identification of the appellant. P.Ws. 1 and 2, at the time of
occurrence, came and chased the dacoits and when returned as
appellant flee away, the informant disclosed the names of the dacoits
and the articles looted, which is mentioned in the first information
report which was lodged on the next day. In the first information
report the description of the articles, looted, were given and during
investigation the appellant was apprehended and the looted articles
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recovered on his confession and the same was put on test
identification parade, which were identified as looted articles.
13. The learned counsel for the appellant pointed out
the infirmity in prosecution case that there is delay in filing the first
information report. The occurrence took place in the night of
07.11.2010the Police Station was at the distance of about nine kilometers, but, the first information report was lodged on 08.11.2000 at 03.00 p.m. The seizure list witness not examined and the Magistrate, who conducted the test identification parade of the article has not been examined as witness.
14. However, mere delay in lodging the first information report is no ground to reject the prosecution case unless the prosecution able to show prejudice the delay. The learned counsel for the appellant contends that the seizure list's witnesses have not been examined.
15. However, as per the evidence of P.W. 6 that the appellant was apprehended and on his confession the articles were recovered and the seizure list prepared and the same have been put on test identification parade and identified. However, there is nothing in the evidence of P.W. 6 to disbelieve his testimony. The infirmity pointed out is that the Circle Officer, who conducted the test identification parade, has not been examined to prove the test identification chart or conduct of test identification parade. However, test identification chart has been formally proved and the investigating officer has stated that test identification parade was conducted. The P.W. 5, the informant, has identified the articles seized in the test identification parade and the article recovered which has been mentioned in Exhibits.
16. However, the Circle Officer, who conducted the test identification parade of the articles, has not been examined, but, the articles, seized, were the sale deed in a brief case in the name of Veena Devi, wife of the informant, and receipt of Gramin Bank and the description of the articles mentioned in the first information report about the documents of the land having been specifically mentioned though the defence has been set up by the appellant that he has given Patna High Court CR. APP (SJ) No.221 of 2013 dt.26-08-2014 6/7 rupees fifty thousand to the informant for execution of the sale deed and the sale deed was given to him to verify the title. However, there is no evidence regarding the payment of money and the appellant has shown his innocence. However, the appellant has not produced the sale deed, but, the sale deed has been shown to have been recovered from the gunny bag behind the house of the appellant on his confession, but, a plea has been taken that he gave the document to police to show his innocence. However, till the execution of the sale deed giving of the original sale deed to the appellant does not appear to be reasonable and acceptable. The person, who has to execute the sale deed, normally gives only a photo stat copy of the sale deed for verification. No document has been produced for the payment of rupees fifty thousand as part of consideration money, hence, defence set up by the appellant that the sale deed was given with regard to the payment of rupees fifty thousand and to verify it for execution of the sale deed is not acceptable. However, having regard to the fact that the name of the appellant finds place in the first information report and there is mention of looted article, the paper of land and jewellery from the possession of the appellant articles were seized, which were recovered and the defence set up by the appellant does not inspire confidence and mere statement of the victim when no material to suggest nor there is any material why he has been falsely implicated.
17. However, the next pot that seizure list witness has not been examined, however, having regard to the facts and circumstances and the fact that the investigating officer has been examined and proved the recovery on the basis of confession, hence, non-examination of seizure list witness is not fatal to prosecution nor any prejudice have shown to have caused.
18. Having regard to the facts and circumstances of the case, I find that the prosecution has been able to prove the charge for offence under Section 395 of the Penal Code beyond reasonable doubt.
19. The conviction of the appellant under Sections 395 and 412 of the Penal Code simultaneously is not proper when a person convicted under Section 395 of the Penal Code. Illustration (a) Patna High Court CR. APP (SJ) No.221 of 2013 dt.26-08-2014 7/7 of Section 114 of the Criminal Procedure Code the word that a person from whom stolen property is covered is "either the thief or has received the goods knowing them to be stolen property". The word or is of significance and when the appellant having said to have convicted under Section 395 of the Penal Code, both the prosecution about the dacoity and having recovered the property knowing it stolen property simultaneously can not arise. Hence, simultaneous conviction for offence under Sections 395 and 412 of the Penal Code of when the participation of the appellant has been established under Section 412 of the Penal Code the simultaneous conviction for the possession of the looted articles and the conviction under Section 412 of the Penal Code does not arise and, hence, the conviction and sentence under Section 412 of the Penal Code is set aside.
20. The learned counsel for the appellant, however, contends that having regard to the facts and circumstances of the case the award of sentence of the appellant may be taken to consideration and it has been contended that the appellant has remained in jail for three and half years and is surviving by the wife and children and is only bread earner.
21. Hence, having regard to the facts and circumstances of the case, the end of justice shall meet by modifying the sentence from ten years to seven years.
(Gopal Prasad, J) The Patna High Court, The 26th day of August, 2014, N.A.F.R. SA/-
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