Aswini Pathak and Upai Alias Gurupada Pathak vs The State

N.G. Chaudhuri, J.—The two appellants before us along with the two others jointly faced Sessions Trial No. 2 of 1979 before the Assistant Sessions Judge, Purulia on a charge u/s 395 I.P.C. Two others have been acquitted. The appellants before us have been convicted for the offence u/s 395 I.P.C. and each of them have been sentenced to R.I. for 8 years. So, they have come up in appeal. According to the prosecution case the two appellants along with 20 or more man raided the house of the informant Brahmananda Pathak of village Surulia five miles away from Purulia Muffasil P.S. on 9.10.74 corresponding to 22nd Aswin 1381 B.S. at about 5-30 P.M. It is alleged that after making sure that the informant was the owner of the house the dacoits assaulted him, entered into the house, snatched away ornaments from the body of the female members of the family after assaulting them and carried away a D.B.B.L. Gun and other valuable ornaments and flings from the house. The. informant, however, did not offer any resistance nor raised any hue and cry, rather he surreptitiously reached the Polytechnic School at Purulia and rang up the Police. Subsequently police arrived at the house of the informant to whom a written information was handed over on which formal F.I.R. was drawn up giving rise to Purulia Mufassil P.S. Case No. 7, dated 9.10.74.

In the F.I.R. the hour of occurrence is clearly stated as 17-30 hours and the date and hour of reporting is noted as 20-30 hours. In the F.I.R. it was clearly alleged that three members of the family of the information, viz., his daughter Anita and his wife Sudharani had identified the appellant Aswini Pathak while the informant''s brother''s wife Sandhya Rani identified the other appellant Upai alias Gurupada Pathak. It is to be added here that in the F.I.R. two dacoities committed presumably by the same gang of dacoits in two adjacent houses, viz. that of Brahmananda, the informant and his relation and close neighbour Kashinath were recorded. The dacoity committed in the house of Kashinath assumed greater dimension in as much as in course of that dacoity some murder was also committed. Subsequent to investigation and commitment when the case was committed to the court of sessions the case was splitted up into two, one regarding the dacoity committed in the house of Kashinath and the other regarding commission of dacoity on the house of Brahamananda. We have been told that the learned sessions Judge himself tried the case relating to dacoity comminute in the house of Kashinath and acquitted all the accused are now considering the case of commission of dacoity in the house of Brahmananda.

In the trial before the learned Assistant Sessions Judge 30 witnesses were examined on behalf of the prosecution. Since there is no dispute that dacoity was committed by more than five persons it is not necessary for us to discuss in details the evidence of all the thirty witnesses. We proceed on the assumption that a dacoity was committed in the house of Brahmananda, as alleged. The incriminating evidence against the two accused is the evidence of three identifying female members of the family of the informant whom we have named earlier. We will only emphasise that the informant did not recognize or identify any of the dacoits. He heard the names of identified dacoits from the female members of the family after he returned from the politechnic.

Mr. Partha Protim Mookherjee the learned Advocate, for the appellants highlights some of the unusual features of the case which, according to him, strike at the root of the case and make the prosecution case unbelievable. He points out that the deposition of the informant (P.W. 1) himself reveals that there was deep and long standing hostility between the informant and the appellants who are his co-villagers in connection with celebration of Durga Puja in the locality, collection and sale of coal gathered from railway engines etc., Mr. Mukherjee submits that against the background of the enmity between the informant and the appellants the informant was motivated to fabricate a false case. Mr. Mukherjee next contends that the falsity of the case is demonstrated by the fact that the dacoity is alleged to have been committed at the very early and unusual hours of dusk at 5.30. p.m. Mr. Mukherjee contends that dacoits do not commit dacoity. at that hour for fear of meeting resistance and also fear of being recognised. But the informant wants us to believe that the dacoits in the risks. Thirdly, Mr. Mookherjee points out that the informant the present case were reckless enough to take all left his house and he and his sons had not offered any resistance. No one even raised any hue and cry which could have at that hour drawn close neighbours and relatives to the house of the informant. Mr. Mukherjee comments that the conduct of the informant is unbelievable and absured. He further points out that, Sabra the cow boy who reported to the informant about the arrival of a man in front of his house with a view to talk with the informant was examined as a witness P.W. 20 No. co-villagers has been examined as witness. He contends that when dacoity takes place in any house in a village neighbours come to offer resistance or at least after the dacoity have left to ascertain the extent of loss and damages caused. In the present case there is no evidence that any neighbours whatsoever came. According to Mr. Mukherjee this feature makes the prosecution case unbelievable. According to Mr. Mukherjee the incriminating evidence given by the three female members of the household regarding identification of the two appellants is unworthy of credit. The witnesses are, as we have seen earlier, Anita (P.W. 2)- a 14 year old daughter of the informant, Sudharani (P.W. 3)- the 41 year old wife of the informant and Sandhya Rani Pathak (P.W. 4)- 30 years old wife of the informant''s brother. Mr. Mukherjee points out that the female witnesses did not utter a single word to indicate that they had occasions to know the names of the dacoits and their faces previous to the date of occurence. In short, Mr. Mukherjee''s contention is that there is no evidence to indicate the competence of the identifying witnesses to recognise and name the dacoits. Yet Mr. Mukherjee points out that female members deposed that they identified the two appellants and that fact is noted in the F.I.R. itself. Mr. Mukherjee contends that without the evidence of the identifying witnesses competence to identify, the mere mention of the names of the dacoits has little value. In this connection he reminds us of the hostility between the two appellants and the informant and likelihood of a false case being concocted against the appellants.

The attending circumstances have been deposed to in discordent manner by the identifying witnesses. Anita deposed that when she was going to candle light in the thakurbari the dacoits entered. She recognised Aswini by the light of the lamp and Aswini took away her ear rings and ear ring of her mother. She deposed that at the time of snatching away her ear rings Aswini assulted her on her head and hand in consequence of which she suffered bleeding on injury. She deposed that after entering into the house the miscreants demanded cartridges of the gun from her. She of course added that accused Aswini was known to her from long before but she did not explain in that connection how she came to know Aswini. Now Anita was sent to Purulia hospital for treatment. At the hospital she was treated by Dr. Chakraborty examined as P.W. 15. It is worthy of note that there is no evidence that Anita made any disclosure to the doctor as to how she received the injuries or at whose hands she received the injuries P.W. 3 Sudharani deposed in course of her cross examination that seeing the miscreants on their courtyard assulting her husband they did not take shelter inside the house. She deposed that she did not notice Anita, her daughter, when miscreants dragged her husband. Sandhaya Rani (P.W. 4) deposed that accused Upai alis Gurupada Pathak took away the ear rings, necklace and churies from her person and she clearly recognised Upai. She has not explained how she came to know Upai by name and face. In this connection it is worthy of mention a very important person of the locality, viz, Local M.L.A. is according to the testimony of P.W. 4 unknown to the female members of the house. Mr. Mukherjee has highlighted that the manner of exchange of words between the dacoits and the assulted female members have been deposed to in discrepant fashion by the three witnesses. Mr. Mukherjee also highlights that also hightlights that P.Ws. 2, 3, and 4 deposed that the dacoits took the precaution of concealing their identity by covering either with napkin of with handkerchief. But they did not depose that the two appellants whom they recognised took any such precaution to conceal their identity. According to Mr. Mukherjee this is also an unbelievable feature of the prosecution case. Mr. Mukherjee then points out that there is again discrepancy in the testimony of P.W. 1 and the Police Officer (P.W. 28) as to when they reached the house of the informant and if they reached the house together or separately. The testimony of P.W. 28 makes it abundantly clear that he knew Brahmananda the informant, from before and immediately on receipt of the telephonic message left the thana with police force. In this connection the point worthy of note is that in the G.D. (Ext. 6) there is no mention of the precise information receiving which P.W. 28 left the thana with force. Close scrutiny of his testimony raises a point of doubt if before leaving the thana he actually recorded a G.D. These are the principal points on which Mr. Mukherjee assails the Judgment of conviction and sentence. His final argument is that the judgment of conviction is itself weak and untenable and even if the same is affirmed the severe sentence imposed on the appellants cannot be upheld.

Mr. R.N. Bose appearing on behalf of the State Government, respondent assisted by Mrs. Shova Mukherjee contends that during dacoities like the present one are frequently committed in rural areas and the motivating factor in most is not gain but taking of vegeance and satisfaction of private grudge. Mr. Bose accordingly contends that the unusual features highlighted by Mr. Mukherjee are not in reality unusual or serious enough to effect the credibility of the prosecution case. We have given our anxious consideration to the facts and Circumstances, we have gone through the judgment of the learned Judge of the Court below with care because of the nature of evidence adduced as discussed above and on account of the features of the prosecution case as detailed above we are convinced that the prosecution case was totally unbelievable and unworthy of credit. We according hold that the learned Assistant Sessions Judge should have held that the prosecution case has not been proved, beyond reasonable doubt. The learned Assistant Sessions Judge should have insisted on evidence of competence of the identifying witnesses to recognise the appellants. In the result we arrive at the conclusion that the appeal should succeed. The appellants are already on bail. We order that the appeal be allowed on contest. The Judgment of conviction and sentence be set aside in its entirety. The appellants are found not guilty of the offence with which they were charged. They are acquitted and they are, therefore, directed to be set at liberty at once after discharging from their bail bonds.

Inform all concerned.

N.G. Chaudhuri, J.

I agree.