Ganesh Pujhar and Others vs State of Jharkhand

Rongon Mukhopadhyay, J.—This appeal is directed against the judgment and order of conviction and sentence dated 28.6.2007 (sentence delivered on 29.6.2007) passed by Shri Ganpati Tiwari, learned 4th Additional Sessions Judge (F.T.C.), Dumka in Sessions Case No. 57/06/43/06, whereby and whereunder the appellants have been convicted for the offence punishable under Section 395 of the Indian Penal Code and the appellant No. 1 was also convicted for the offence punishable under Section 412 of the Indian Penal Code and both the appellants were sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 395 of the Indian Penal Code and the appellant No. 1 was further sentenced to undergo rigorous imprisonment for seven years under Section 412 of the Indian Penal Code and both the sentences so far as the appellant No. 1 is concerned are to run concurrently.

The prosecution story, as would appear from the Fardbeyan of Siyaram Sah (P.W. 6) is to the effect that on 15.4.2005 in the night in between 1.45 to 3.15 A.M all of a sudden 8-10 unknown persons variously armed with Lathi and pistol entered into the courtyard of the informant and assaulted him with Lathi, resulting in his suffering injuries. It is alleged that the brother-in-law of the informant was also assaulted and both the informant and his brother-in-law were tied in a cot. Several persons after breaking the back side door of the house entered into the room and the wife of the informant Sunita Devi (P.W. 1) was assaulted on her denial that amount of Rs. 7 lacs and half K.g. Gold were in the house. Subsequently, it was alleged that all the accused persons by breaking open the lock of the box took away articles, ornaments and cash and after exploding bombs, the unknown dacoits fled away. It has also been alleged that after the villagers came and when the informant went inside the house he found several ornaments, cash, utensils and various articles taken away by the dacoits.

Based on the aforesaid allegations Jama P.S. Case No. 32 of 2005 was instituted against 20 unknown accused persons for the offence punishable under Sections 395 and 397 of the Indian Penal Code.

After conclusion of the investigation, having found the case to be true, police submitted charge-sheet against the accused persons and upon taking cognizance the case was committed to the court of Sessions where charge was framed on 25.5.2006 for the offence punishable under Sections 395, 397 and 412 of the Indian Penal Code which was explained in Hindi to which they pleaded not guilty and claimed to be tried.

The prosecution in course of the trial examined as many as ten witnesses in support of its case.

P.W. 1 Sunita Devi is the wife of the informant (P.W. 6) and this witness has stated that her husband and his brother-in-law had gone to see fair and she was in her house and on return her husband and his brother-in-law slept in the courtyard while she slept inside the room. She has stated that when she heard cry of alarm she peeped through the window and saw that 8-10 criminals were assaulting the informant and his brother-in-law. She has also stated that dacoits had broken the door of her room and after forcibly taking out the box and after breaking the box took away the contents and had also looted articles from the shop. She has further stated that dacoits threatened her to pour kerosene oil over her and burn her on her denial to the demand of Rs. 7 Lacs and half K.g. of gold. She has deposed that she had identified the dacoits in the light of the lantern.

P.W. 2 (Sricharan Sah) has stated that on the date and time of occurrence he was sleeping outside his house when he heard cry of alarm and sound of explosion of bomb and on account of splinters he had sustained injuries on his leg. This witness has further stated that on reaching the place of occurrence he saw the injuries suffered by the informant. However, this witness has admitted that he did not identify any dacoits.

P.W. 3 (Badri Sah) has stated that the occurrence has taken place on 14.4.2005 at 2.30 a.m. when he was sleeping in his house and on hearing the cry of alarm he reached the place of occurrence. This witness is not an eye witness to the occurrence.

P.W. 4 (Dani Sah) is the brother-in-law of the informant, this witness has stated that on the date of occurrence he was sleeping in the house of his brother-in-law when dacoits 20-25 in number came and assaulted P.W. 6 who sustained injuries. He has further stated that the dacoits were identified by him in the light of the lantern.

P.W. 5 Dashrath Sah, has stated that he came to know about the occurrence at about 4.00 a.m. and when he reached the place of occurrence, he saw injuries on the head of Siyaram Sah and articles were scattered everywhere.

P.W. 6 Siyaram Sah, is the informant of the present case who has clearly stated that on return from the fair he and his brother-in-law (P.W. 4) were sleeping in the courtyard when all of a sudden 10-12 persons entered into the courtyard and after assaulting him, they were tied in a cot. It has further been stated that the accused persons forcibly entered into the room and took away jewellery, utensils and several articles. He has further stated that at the time of occurrence from the light of lantern which was burning he could identify the dacoits. He has also stated that the utensils were identified by him in the Test Identification Parade and in fact the accused persons were also identified by him.

P.W. 7 (Samsad Ansari) is the investigating officer of the case. This witness has stated that the fardbeyan was in his own handwriting which bears his signature. This witness has further stated that place of occurrence is the house of informant Siyaram Sah(P.W. 6). He has also stated that he had found the door of the main gate of the room was broken and the counter of the shop was also broken and the articles were lying scattered. He has further stated that on the confessional statement of appellant No. 1 he had raided the house of appellant No. 2 and seized one Dish and Bowl. He has further submitted that during Test Identification Parade the informant had identified the said articles. He has also stated that in course of investigation he had recorded the statement of witnesses in the case diary and having found the case to be true, charge-sheet was submitted against the accused persons.

P.W. 8(Sanjay Kumar) is the Circle Officer who had conducted the Test Identification Parade of the articles which was held at Jama police station. This witness had identified his writing and signature on the Test Identification Parade Chart which has been marked as Ext. 5/1.

P.W. 9 (Dr. Sanjay Kumar) is the doctor who was posted as Medical Officer on 15.4.2005 at Sadar hospital Dumka and had examined P.W. 1 and had found two injuries which were opined to be simple in nature caused by hard and blunt object.

P.W. 10 (Rakesh Kumar) is a Judicial Magistrate 1st Class Dumka and he had conducted Test Identification Parade in connection with Jama P.S. Case No. 32 of 2005 in Central Jail, Dumka and he has stated that P.W. 6 had identified the appellant No. 2 as the person who was assaulting him in the commission of dacoity. This witness had identified his signature in the Test Identification Parade chart which has been marked as Ext. 7.

The appellants in their statements recorded under Section 313 of the Code of Criminal Procedure have denied the allegations leveled against them.

Heard learned counsel for the appellants and the learned counsel for the State.

Learned counsel for the appellants have submitted that the prosecution has sought to prove the alleged recovered articles from the house of the appellant No. 1 as the articles which have been taken away in course of dacoity committed in the house of the informant (P.W. 6). It has also been submitted that although the appellant No. 2 was said to have been identified in the Test Identification Parade but the same was conducted after more than seven months from the date of occurrence and in such circumstance no reliance can be placed on the said Test Identification Parade. It has also been submitted that the seizure-list witnesses were not examined and that although several houses were in the locality but no independent witness has been produced by the prosecution and the entire conviction is based on the evidence of P.W. 1, P.W. 4 and P.W. 6 and since all the said witnesses are related and interested witness their version of the events cannot be taken into consideration. It has also been submitted by the learned counsel for the appellants that there are several discrepancies which appears on the face of the record more notably the discrepancies in the fardbeyan and the evidence of the witnesses in course of trial.

Learned counsel for the State on the other hand has justified the impugned judgment while submitting that so far as the factum of occurrence is concerned, there is no dispute that the dacoits had forcibly entered into the house of the informant (P.W. 6) and had committed dacoity and in course of commission of dacoity the informant and his brother-in-law and his wife were assaulted. It has further been submitted that on account of assault injuries were sustained by P.W. 6 which has been corroborated by the injury report issued by the doctor P.W. 9. It has also been submitted by the learned counsel for the State that Test Identification Parade with respect to the identification of the articles seized and the identification of the person committing dacoity were conducted and since the recovered articles as well as P.W. 2 were identified by the informant which conclusively proves the guilt of the appellants, they have rightly been convicted and no material has been put-forward by the defence in order to take a different view.

After hearing the learned counsel for the appellants and the State and after going through the lower court record, I find that P.W. 6 the informant has consistently supported his version in his evidence before trial which corroborates the assertions/allegations made by him. This version of P.W. 6 is fully supported by another eye witness P.W. 1 who happens to be the wife of P.W. 6 who has categorically stated in her evidence that she had seen the dacoits assaulting P.W. 4 and P.W. 6 by opening the window of her room and that the dacoits had forcibly entered into her room after breaking open the door and had taken away valuables after giving threat to her of burning her if their queries/demands are not properly adhered to. The articles which were recovered from the house of the appellant No. 1 were identified by P.W. 6 and so far as the appellant No. 2 is concerned he was also identified in the Test Identification Parade conducted by P.W. 10 in Central Jail, Dumka.

The contention of the learned counsel for the appellants with respect to the discrepancies in the Test Identification Parade is of no consequence since P.W. 6 had identified the appellant No. 2 in the dock also apart from his identification being made by P.W. 6 in the Test Identification Parade.

In the circumstances enumerated above, since the defence has failed to create any major contradictions in the prosecution case and has therefore failed to make dent in the prosecution version and the fact that the entire evidence both the oral and documentary adduced by the prosecution has properly been considered and there being no illegality or error manifest in the judgment and order of conviction and sentence passed by the learned trial court this court is not inclined to entertain the present appeal.

Accordingly, there being no merit in this appeal the same is, hereby, dismissed.

Since the appellants are in custody, they are directed to serve out the rest period of the sentence, if not already served out.