Arjun Yadav vs The State of Bihar

Aftab Alam, J.—There is a single appellant before this court who stands convicted u/s 395 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. According to the prosecution case on 18.10.1974 at about mid-night a dacoity was committed in the house of the Informant Md. Ibrahim, PW 8. In the F.I.R. (Ext. 2) recorded on 19.10.1974 at 1.30, the Informant stated that 20 to 25 dacoits entered Into his house. They assaulted him and tied him to the cot on which he was sleeping. Some of them then entered into the room where his mother and wife were sleeping. They too were assaulted and the silver and gold ornaments on their person were snatched away by the dacoits. During the commission of dacoity the informant, his mother Fatma Bibi, PW 1 and his wife Metlooba Khatoon, PW 3 received injuries. In the light of the lantern the informant was able to identify some of the dacoits including the appellant. In the F.I.R, itself it was stated that the informant''s mother had also Identified the appellant as being among the dacoits. The F.I.R., thus, gave the names of eleven accused among whom the appellant was mentioned at serial No. 3.

The police after investigation submitted charge sheet on the basis of which six accused persons including the appellant were put on trial in S.C. No. 123/1981 before the Addl. Sessions Judge, Katihar. In that trial after all the prosecution witnesses were examined and the accused were to be examined u/s 313 of the Code of Criminal Procedure, the appellant disappeared. As he could not be apprehended at that time the court was compelled to separate his case and proceed with the trial of the remaining five accused. Those accused were examined u/s 313 of the Code of Criminal Procedure and some of them also led evidence in support of their defence. Finally by judgment, dated 9.11.1993, the trial court, acquitted all the five accused then facing trial before it holding that the prosecution had failed to establish the charges against them.

About fourteen years later, the present appellant was arrested and produced before the trial court on 7.4.1997. As the prosecution had already closed its evidence (which was led in the trial in the presence of the appellant and before he absconded) the trial court proceeded from the stage of Section 313 of the Code of Criminal Procedure. The appellant was examined under the provisions of that section. He declined to adduce any evidence in his defence and consequently the trial court pronounced its Judgment on the basis of the materials already on the record.

By the Judgment coming under appeal, the trial court held the appellant guilty of the offence u/s 395 of the Penal Code and gave him the sentence as indicated above.

Learned counsel for the appellant submitted that the appellant''s conviction cannot be sustained in view of the findings recorded by the trial court in the earlier judgment concerning the other five co-accused. He placed the earlier judgment before me and pointed out that in para 13 of that judgment the trial court had recorded a definite finding that the prosecution had not been able to prove that a dacoity had taken place in the house of the informant on the night in question. It was only after recording this finding that the trial court had proceeded to consider the individual cases of the five other co-accused separately to support the case that they participated in the commission of dacoity in the informant''s house. Learned counsel submitted that the finding recorded in the earlier judgment (based on exactly the same prosecution evidence) that no dacoity was committed in the informant''s house on the night in question would take away the ground from under the legs of the prosecution and after that finding nothing would remain of the prosecution case to justify the conviction of the appellant.

I am unable to accept the submission and I am of the opinion that in view of Section 43 of the Evidence Act, the earlier judgment concerning the other five co-accused cannot be taken into consideration in so far as the case of the present appellant is concerned.

In support of his submission that notwithstanding the bar of Section 43, the earlier judgment, dated 9.11.1983 could be taken Into consideration in the case of the appellant, counsel for the appellant relied upon two decisions of the Supreme Court; one by a constitution bench in Manipur Administration Vs. Thokchom, Bira Singh, and the other by a division bench in Brijbasi Lal Shrivastava Vs. State of Madhya Pradesh, . In my view, learned counsel overlooks the fact that in both the decisions the Supreme Court was dealing with cases in which the same accused was acquitted in an earlier case on the same set of facts (in Manipur Administration) and/or on the basis of the same piece of evidence (in Brajbasi''s case).

In the present case, the position is entirely different. The earlier judgment by the trial court was in respect of five other co-accused and in my view, therefore, the judgments relied upon by the learned counsel seem to have no application to the facts of this case.

On the other hand, a division bench decision of Allahabad High court in Sheo Nandan vs. State, AIR 1964 Ald 139 which appears to be very similar on facts to the present case takes a view contrary to the submissions made by the counsel for the appellant. In para 90 of that judgment, it was stated as follows :

"90. It is certainly correct that a finding cannot be recorded in the present case against Ram Bachan that the currency notes recovered from his house were looted property and did not belong to him. But so far as the case against Nagina and Sheo Nandan is concerned it can still be considered if the property which was recovered on the basis of information made available by the approver Dhondha was property taken away as a result of the commission of the dacoity. If the finding is that it was, it can certainly be relied upon for purposes of conviction of Nagina and Sheo Nandan, though so far as Ram Bachan is concerned, he will remain unaffected by it; and he would perhaps be still entitled to claim that property as belonging to him, even though a contrary finding may be recorded in this sessions trial or in appeal arising therefrom to which he is not a party. The principle of res judicata, as it was enunciated in Pritam Singh and Another Vs. The State of Punjab, in relation to criminal proceedings, would require that the previous judgment must be inter partes. Even the Code of Criminal Proce-dure takes cognizance of that principle when it provides u/s 403 that a person once convicted or acquitted cannot be tried for the same offence again. The previous judgment in this case was, however, given In a proceeding to which Nagina and Sheo Nandan were no parties at all. If Ram Bachan and others were convicted in the previous sessions case, that would have provided no justification for the evidence against Nagina and Sheo Nandan being construed in a manner as to lead to their conviction. The evidence would have had to be considered afresh uninfluenced by any findings which might have been recorded In favour of the prosecution in the previous case and against the other accused; and the position should remain the same even in a case where the previous trial resulted in the acquittal of the accused then before the court. The question therefore whether the currency notes recovered from the posession of Ram Bachan were part of the looted property has to be judged in the case against Nagina and Sheo Nandan independently of what might have been decided in the previous case."

(emphasis added)

I find myself in respectful agreement with the view expressed by the learned Judges of the Allahabad High Court and I find and hold that the earlier judgment by the trial court concerning the other five accused has no relevance so far as the present appellant Is concerned and the findings recorded in that judgment, therefore, cannot be relied upon for setting aside his conviction.

Coming now to consider the appellant''s case on merits, it may be noted that the prosecution in support of its case examined eight witnesses before the trial court. Out of them PW 8 was the informant himself and PWs 1, 3 and 4 were the inmates of the house being the informant''s mother, wife and daughter respectively. PWs 2, 5, 6 and 7 were neighbours who came to the informant''s house after the occurrence and to whom, according to their deposition, the informant named some of the dacoits identified by him, Including the appellant. It is important to note here that the Investigating Officer was not examined as a witness and this, In my opinion, has caused great prejudice to the accused-appellant.

It may be noted that in the F.I.R. It was not stated that any one other than the informant and his mother had identified this appellant. Nevertheless, PWs 3, and 4, the Informant''s wife and daughter also came before the court to say that they too had Identified the appellant as one among the dacoits. The Investigating Officer not having been examined, the accused-appellant had no means to verify whether they had made such a claim before the Investigating Officer or whether they came to the court to make this statement for the first time. Similarly both the Informant and her mother PW 1 made several statements concerning the appellant the veracity of which remained untested In the absence of the Investigating Officer coming before the court. The failure of the prosecution to examine the Investigating Officer has further prejudiced the accused inasmuch as no Independent objective findings regarding the alleged occurrence could be placed before the trial court

For all the reasons I am of the view that the non-examination of the Investigating Officer In this case has proved fatal to the prosecution case and on the materials on record It would not be prudent and safe to sustain the appellant''s conviction. To my mind It is a fit case In which the appellant Is entitled to the benefit of a reasonable doubt. I accordingly extend that benefit to him and acquit him of the charge. The judgment and order passed by the trial court is set aside. Let the appellant be released from jail forthwith In case he is not wanted in any other case. In the result, this criminal appeal is allowed.