Jharkhand High Court
Gayasuddin Khan vs State Of Bihar (Now Jharkhand) on 2 April, 2002
Equivalent citations: 2002CRILJ3296, 2002 CRI. L. J. 3296, 2002 AIR - JHAR. H. C. R. 760, (2002) 2 JCR 269 (JHA), (2002) 2 EASTCRIC 152, (2005) 3 JLJR 110
Author: Lakshman Uraon
Bench: Lakshman Uraon
JUDGMENT Lakshman Uraon, J.
1. This Criminal Appeal has been directed against the judgment and order of conviction and sentence dated 10.4.2000 and 13.4.2000. passed by Shri Sheo Kumar Prasad. learned 5th Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 27 of 1978. convicting the sole appellant under Sections 395 and 412 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years on each count, ordering to run both the sentences concurrently.
2. The prosecution case, as per the fardbeyan of one Teju Mahto (PW 4). is that he was Postal Peon. On 6.12.1975 at about 1.30 p.m. he took postal Doles for delivery and reached near Unta More. P.S. Chatra, Dis-trict-Hazaribagh. Four unknown persons/ miscreants intercepted him. Two of them stopped his cycle and the other two assaulted him with the butt end of the pistol. The informant fell down. The miscreants took away his postal bags. After an hour the informant returned back to Chatra Post Office and informed the Post Master about the alleged occurrence. He was advised to inform the police. The informant accordingly, informed the matter to the police and claimed to identify the miscreants. His fardbeyan was recorded by the S.I., Chatra Police Station, on which he gave his LTI (Ext. 6). The Investigating Officer registered the case against unknown persons under Section 394 of the Indian Penal Code but after investigation, charge-sheet was submitted under Sections 395 and 412 of the Indian Penal Code against Ainul Hasan, this appellant Gayasuddin Khan and Mazhar Khan, showing Wasi Khan and Sattar Mian riot sent up for trial. In course of trial, the other two charge-sheeted accused persons, namely. Ainul Hasan and Mazhar Khan absconded and hence the trial of the sole appellant was split up.
3. The prosecution has examined altogether nine witnesses and has also produced the recovered postal bags, which were marked Exhibits. The learned Court below, considering the evidence, oral and documentary, convicted the appellant Gayasuddin Khan under Sections 395 and 412 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years on each count, with a further direction to run both the sentences concurrently.
4. Aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, this appeal has been preferred with a prayer to set aside the impugned order. after allowing this appeal and to acquit him.
5. PW 1 (Surendra Dangi) and PW 2 (Basudeo Mahto) had also seen five persons, while going through that place of occurrence. They (the miscreants) had tried to rob them but in the meantime, two persons on cycle arrived there and then they were saved. They claimed to identify those persons, who subsequently are alleged to have committed dacoity in looting the postal bags and other postal materials from the possession of the informant (PW 4). In course of their evidence, both the witnesses, namely. PWs 1 and 2. have stated that this appellant along with others were shown by the police at the Police Station. They were asked to identify the appellant in the T.I. Parade in the jail also. In the jail, in course of their identification, the police was also there. Both these witnesses have been declared hostile by the prosecution. PW 3 (Dr. Baleshwar Jha) has examined the informant (PW 4). who was assaulted with the butt end of the pistol by the unknown miscreants. This witness has found three swellings on his left side of the back, right side of the back and the root of the right thumb, caused by hard and blunt substance. The doctor identified his injury report (Ext. 1).
6. The evidence of the doctor shows that PW 4 (Teju Mahto) was assaulted with the butt end of the pistol and sustained injuries.
7. The alleged occurrence took place in the Jungal near Unta More. This witness (PW 4) was carrying altogether five bags for delivery. Two bags were delivered to the Post Master Dwarika Dubey of Unta. Thereafter. he was carrying three postal bags tor their delivery to Tatra Kanachatti and Tulbul. When he proceeded one mile ahead of Unta, then at about 3.00 p.m. he saw four persons. They surrounded him and assaulted him with the butt end of the pistol. He fell down. The miscreants took the postal bags by cutting the same with Chhuta (knife), which were tied with the handle of the cycle and fled away. He sustained injuries and after an hour he returned back to Cbatra on his cycle and informed the Post Master. He was asked to inform the police and. accordingly, he informed the police and was sent to the Hospital. In course of his treatment, he was lying unconscious. Next day when he regained his consciousness, then his statement was recorded by the police on which he gave his LTI. After 5/6 days of the alleged occurrence, he was taken to local jail for identification. He identified two suspects including this appellant in presence of the Magistrate. But in the dock, in course of his evidence, he failed to identify this appellant at the first sight. However, when repeatedly asked to identify, then he identified this appellant. Gayasuddin Khan and Ainul Hasan, after a great difficulty. He also identified the materials (Exts. I. II, II/l and 11/2). which are postal bags, being carried by him. The said bags were Sooted and were recovered in the Jungal on the indication of this appellant. Gayasuddin and Ainul Hasan. In his cross-examination in paragraph No. 10 he (PW 4) has deposed that due to his old age, who is aged about 70 years, he has got poor eye sight. The miscreants had concealed their faces with Galmochhas. Only their eyes were visible. In paragraph No. 11 he has deposed that the Daroga, Jamadar and the Officcr-in-Charge informed him to go to Jail to identify the suspects. At the time of T.I. Parade, all these police officials were also present. They got identified this appellant and others. On that also after a great difficulty and delay, when the police officers asked him to identify, then he identified. He was not knowing this appellant prior to that date.
8. PW 5 (Dwarika Dubey) is a tendered witness. PW 6 (Shiv Narayan Prasad) is the Head Clerk of the office of Senior Postal Superintendent. He along with the police officers and the appellant as also Ainul Hasan had gone to the Jungal and the postal articles were recovered, as pointed out by the appellant Gayasuddin and Ainul Hasan. This witness identified that those articles were postal bags, which were given to the informant for their delivery at different. Post Offices. He also identified those postal bags, which are marked material Exts. I, II, II/l and II/2. This witness has claimed that the informant had informed that on 7.12.1975 four to five miscreants had looted him. PW 7 (Ram Nirikh Singh) is retired Mail Overseer of the Postal Department. He had also gone along with police officials to the Jungal on 8.12.1975. He saw postal bags concealed in the bush of Kanauda and Palas tree, on the indication of Ainul Hasan and another. PW 8 (Ram Sagar Pd. Singh) is the Magistrate, who conducted the T.I. Parade in presence of the witnesses on 10.12.1975 at Sub-Jail. Chatra. He has stated that Gayasuddin Khan (appellant). Ainul Hasan and Mazhar Khan were suspects. Witnesses Baldeo Mahto (PW 2), Surendra Dangi (PW 1) and the informant Teju Mahto (PW 4) identified this appellant Gayasuddin and Ainul Hasan. He prepared T.I. Chart in his pen and signature (Ext. 4). PW 9 (Lala Tigga) is the Investigating Officer of this case, who recorded the statement of the informant Teju Mahto at Chatra Hospital, when he received O.D. Slip. On that statement, Teju Mahto gave his LTT. which is in the pen and signature of this PW 9 (Lala Tiggal He completed investigation after the formal First Information Report was drawn up by the Munshi Bateshwar Pandey (Ext. 7). As both the apprehended accused Gayasuddin and Ainul Hasan along with Mazhar Khan were in custody in connection with Itkhori P.S. Case No. 3 (12) 75 under Sections 399 and 402 of the Indian Penal Code, he took them towards the Jungal along with the witnesses in search of the looted postal bags. On 8.12.1975 Gayasuddin Khan and Ainul Hasan led towards Saraiya Forest Range (Unta More). The bags were found in the bush of Kainauda and Pafos trees. There were Canvass bags, four in number and three leather bags, out of them one was locked. There were post-cards, inlands and one newspaper. He seized all those materials in pre-sence of the witnesses and prepared seizure list (Ext. 2). The seized articles were marked as material Exts. I. II. II/l. II/2. III to III/2. IV and V.
9. Learned counsel for the appellant has argued that this appellant along with Wasi Khan was acquitted in Sessions Trial No. 26 of 1978 under Sections 399 and 402 " of the Indian Penal Code as also 25 (A) of the Arms Act. which is an occurrence alleged to have taken place on 7.12.1975, in between 1 to 3 p.m. They were apprehended alleging that they were planning to commit dacoity. It was argued that in that Sessions Trial, which is alleged to have been recorded regarding an occurrence, which took place on 7.12.1975. this appellant and another have been acquitted. It is alleged that the informant Teju Mahto (PW 4) was going to deliver the postal bags on 6.12.1975 at about 3.00 p.m., who was also looted by the dacoits. The defence of this accused/appellant is that when he was apprehended in connection with Itkhori P.S. Case No. 3(12) 75. corresponding to Sessions Trial No. 26 of 1978, pending in the Court of 2nd Assistant Sessions Judge, Hazaribagh, and while he along with others was in custody, they were shown to the witnesses PW 1 and PW 2 at the Police Station and were asked to identify these suspects in that T.I. Parade also, This is the evidence of PWs 1 and 2, namely. Surendra Dangi and Baldeo Mahto respectively, who were declared hostile by the prosecution. Learned counsel for the appellant has further submitted that there is only one eye witness Teju Mahto (PW 4), who is the informant. He has alleged that only four persons apprehended him and took his postal bags after assaulting him with the butt end of the pistol. On this ground it was argued that when the informant, the only eye witness, has claimed that there were only four miscreants, then the charge framed against this appellant under Section 395 of the Indian Penal Code has no leg to stand, as there were only four miscreants. If the charge under Section 395 of the Indian Penal Code is not there, then the subsequent recovery of postal bags for charging the appellant under Section 412 of the Indian Penal Code has also no leg to stand.
10. Admittedly PW 4 (Teju Mahto) is the only eye witness. He was going for delivery of postal bags, five in number. Two were handed over at Unta and the remaining three were being carried by him. When he proceeded ahead about 1 km. from Unta. then at about 3.00 p.m. four persons apprehended him and assaulted him with the butt end of the pistol and snatched his postal bags. In course of search and seizure the Investigating Officer seized more than three bags, who are material Exts. I, II. II/l. II/2, III to III/2. IV and V. It was submitted that this appellant has falsely been implicated, as he was apprehended in connection with Itkhori P.S. Case No. 3 (12) 75, who faced trial in Sessions Trial No. 26 of 1978. arising out of that Itkhori P.S. Case No. 3 (12) 75 and was acquitted. It is also clear that the eye witness, namely, the informant (PW 4) has stated that due to his old age he has got poor eye sight. At the time of alleged loot and assault, the miscreants had concealed their faces and only their eyes were visible. In that situation it is not possible to identify any criminal. The sole eye witness (PW 4) has stated that after a great difficulty he identified this appellant in T.I. Parade, who was asked to identify by the Daroga and Jamadar. who were along with him. This T.I. Chart creates doubt in my mind as to whether it is a genuine document or is a prepared one. The Magistrate (PW 8), who conducted the T.I. Parade on 8.12.1975 within the Sub-Jail. Chatra. does not remember as to how long the police officers were there with him. He has admitted that perhaps the Investigating officer had gone along with him up to the Jail gate. He even does not know the Jailor of Sub-Jail. Chatra. When the Investigating Officer was along with him. the witnesses were not with him.
11. The prosecution case is based only on the evidence of T.I.P. Chart, conducted by Ram Sagar Pd. Singh (PW 8), PW 1 (Surendra Dangi) and PW 2 (Baldeo Mahto) were shown the miscreants in the Thana itself and were asked to identity them in the Sub Jail, Chatra. They could not identify this appellant Gayasuddin Khan in course of their evidence in the Court. Hence they are hostile witnesses. The only witness remains PW 4 (Teju Mahto). who was 70 years of age at the time of the alleged occurrence. Having poor eye sight, he was also asked to identify in the T.I. Parade, held at Sub-Jail, Chatra by the Daroga and Jamadar, who were also along with him and the Magistrate had also gone there. On their order, he identified this appellant also. He also has stated that the criminals had concealed their faces and only their eyes were visible. In view of the said fact, it is not possible to identify anyone in the T.I. Parade or anywhere else. Thus. I find that much reliance can not be laid upon the TIP, as held in the manner and as deposed by the witnesses, namely. PWs 1, 2 and 4, who attended the TI Parade, the recovery, even it is assumed, was in the Jungal. The articles were surrounded with bush of Kanauda and Palas trees. This appellant along with two others was apprehended in connection with another case, alleging that they were planning to commit dacoity. possessed with fire arms and were apprehended on 7.12.1975. The present case being Chatra P.S. Case No. 1 (12) 75 (Sessions Trial No. 27 of 1978) was registered on 6.12.1975 and on 7.12.1975 the appellant was apprehended in connection with another case and was taken into custody. Thereafter, he was taken to the Jungal alleging that his indication led the recovery of the looted bags.
12. If it is assumed that this appellant was along with other associates, planning to commit dacoity on 7.12.1975 and was apprehended, then by that time the postal bags which were found in the Jungal were not in their possession. It is possible that they were in the Jungal and might have seen the postal bags or the same might have been found there only to implicate them by carrying them in the police Jeep up to that place where the postal bags were kept. Thus, I find that much reliance can to be given to the TI Parade Chart (Ext. 4). The postal bags were three in number, which were taken away by the criminals but the recovery shows that more than three bags including leather bags and other materials were found in the Jungal.
13. Informant is the sole eye witness, who was also 70 years of age at that time, having poor eye sight as also the fact that he has stated that he could see only the eyes of the criminals as their faces were covered with Galmochha. The other two witnesses PWs 1 and 2 were also shown to the appellant at the Thana Hazat itself and were asked to identify in the T.I. Parade. The informant, the sole eye witness, was also asked to identify by Daroga and Jamadar in presence of the Magistrate when he had attended the TI Parade. He also identified after much delay and with great difficulty at that time and also at the time of his deposition in the Court. This shows that the sole eye witness, who is the informant, is also not reliable as he has said that only four persons looted him whereas the Investigating Officer has submitted charge-sheet under Section 395 of the Indian Penal Code, although the criminals were not five in number or more. This shows the intention of the Investigating Officer to drag this appellant in a dacoity case under Section 395 of the Indian Penal Code as also under Section 412 of the Indian Penal Code regarding recovery of postal bags, which were recovered from the Jungal and not from the possession of this appellant Gayasuddin. When there were less than 5 persons in committing crime in tooting and assaulting Teju Mahto. then the case should have been tried under Section 394 of the Indian Penal Code for which the formal First Information Report was drawn up. If Section 395 of the Indian Penal Code is not there. Section 412 of the Indian Penal Code has also no leg to stand as the looted postal bags were not recovered from the physical and conscious possession of this appellant. As J have stated above, it is just possible that the postal bags were found in the Jungal, this appellant was apprehended in connection with other case and was taken to the Jungal to create evidence that his indication led the recovery of the looted postal bags, to show the evidence admissible against him.
14. In view of the above considered tacts. I find that the prosecution case suffers from infirmities, as stated above by me and hence the conviction and sentence, passed against this appellant under Sections 395 and 412 of the Indian Penal Code can not sustain.
15. In the result, this Criminal Appeal is allowed and the impugned judgment and under of conviction and sentence, passed by the learned Court below vide Sessions Trial No. 27 of 1978 are hereby set aside, as the appellant is in custody, hence it is ordered that he be released forthwith from custody, if not wanted in any other case.