Pratap Chauhan vs The State of Bihar

S.M.M. Alam, J.—Both the Cr. Appeal i.e. Cr. Appeal No. 180 of 1999 and Cr. Appeal No. 37 of 2000 were taken up together for hearing as both the Cr. Appeals arise out of the same judgment dated 17.5.1999 passed by the 5th Additional Sessions Judge, Purnia in Sessions Trial No. 280 of 1996 whereby he has been pleased to convict both the appellants, namely, Pratap Chauhan and Babu Lal Mistry u/s 395 of the Indian Penal Code and sentenced each of them to undergo R.l. for ten years and imposed a fine of Rs. 2500/-, and in default of fine each of the appellant was directed to undergo R.l. for six months u/s 395 of the Indian Penal Code. By common judgment which is being passed in Cr. Appeal No. 180 of 1999 both the appeals will be disposed off. The prosecution case, in brief, is that the informant Md. Jamaluddin gave his fard-e-bayan on 14.2.94 at 11.00 A.M. before the S.I. B. Choudhary, Officer Incharge of Kasba police station, District: Purnea to the effect that in the night of 13.2.94 at about 7.45 P.M. after taking his meal he came to the Angan of his house and then he heard Halla and cry of some untoward incident coming from the Darwaja of the house of his brother Abdul Samad. On hearing cry, he thought that some quarrel was going on between his brother Abdul Samad and his another brother Sattar and, so, he shouted that why they were doing Maarpeet. Further case is that the informant went to the Verandah of Abdul Samad in order to intervene between two quarreling brothers but on reaching at the Verandah of his brother he in the light of lantern and torch saw some outsiders who were 7-8 in numbers and who were armed with rifle, farsa, Khanti, bows, and arrows inside the house of his brother Abdul Samad. It is further said that as soon as the informant reached at the Verandah of his brother 3/4 dacoits started assaulting him with lathi. Thereafter, the informant fled away from there and concealed himself at some distance from where he saw the dacoits committing dacoity in the house of his brother Sattar and Abdul Samad who were residing in the same house. Further case is that in the torch light and in the light of lantern the informant identified Pratap Chouhan, Babu Lal Mistry, Devendra Chauhan amongst the dacoits. It is said that the informant''s brother Abdul Samad had also identified the above named three dacoits. The informant claimed that he had identified five other dacoits by face. After running away of the dacoits, the informant came back to the house of his brother Abdul Samad and came to know that the jewelleries, utensils, V.I.P. briefcase and bags etc. had been looted away by the dacoits from the house of his two brothers. It is further said that while the dacoits were running away they left behind a pair of plastic Chappal, one Khanti, three arrows at the place of occurrence. It is further said that the Khanti which was left by the dacoits belonged to accused Suman Chauhan and accused Babu Lal Mistry had manufactured the same at the instance of Suman Chauhan.

On the basis of the above fard-e-bayan of the informant Kasba P.S. case No. 55 of 1994 u/s 395 of the Indian Penal Code was instituted and investigation of the case was taken up by S.I. Baleshwar Choudhary, Officer Incharge of the said P.S. After investigation, chargesheet was submitted against the appellants u/s 395 of the Indian Penal Code and, accordingly, cognizance was taken and by order dated 14.6.96 passed by the Chief Judicial Magistrate, Purnea, the case was committed to the Court of Sessions.

On 15.11.97, charge u/s 395 of the Indian Penal Code was framed against the appellants by the 5th Additional Sessions Judge, Purnea. Charge was read over and explained to the appellants who pleaded not guilty and claimed to be tried and thus, the trial proceeded against the appellants.

During trial, altogether nineteen witnesses were examined on behalf of the prosecution. One D.W. was also examined on behalf of the defence and thereafter the argument was heard and judgment was pronounced by 5th Additional Sessions Judge, Purnea, on 17th May, 1999, and by the said judgment he convicted both the appellants under sections 395 of the Indian Penal Code and sentenced to undergo imprisonment as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction, both the appellants have separately filed appeals which were heard analogous.

The main contention of the learned advocate of the appellant Pratap Chauhan is that not a single witness has come forward to claim that he had identified appellant Pratap Chauhan at the time of commission of dacoity. His further contention is that there is no iota of evidence against the appellant Pratap Chauhan to hold him guilty u/s 395 of the Indian Penal Code and, so, his conviction is bad in the eye of law and must be set aside. The contention of the learned advocate appearing on behalf of Babu Lal Mistry is that he has been falsely implicated in this case because of the fact that there was old enmity between the informant and the family of Babu Lal Mistry due to land dispute. His further contention was that the appellant Babu Lal Mistry was a co-villager and was known to the informant from before the date of occurrence. As such, it was unbelievable that he might have come to the house of the informant for committing dacoity without covering of his face which establishes that appellant Babu Lal Mistry was falsely implicated in this case.

Let me see what evidence the prosecution has led to prove the charge against the appellants. In this case, the prosecution has examined altogether nineteen witnesses, namely, P.W.1 Pradeep Pandey, PW. 2 Samad Khan, PW. 3 Md. Yasin Khan, P.W. 4 Md. Sajjad Khan, PW. 5 Md. Sattar, P.W. 6 Md. Farooque, PW. 7 Md. Shamim Akhtar, P.W.8 Jamil Khan, PW. 9 Sirajuddin, P.W. 10 Md. Hasib Khan, P.W. 11 Mahadeo Chauhan alias Langra, P.W. 12 Mahendra Soren, PW. 13 Vedanand Chauhan, P.W. 14 Bateshwar Singh, PW. 15 Furan Bhagat, PW. 16 Mehdi Hasan, PW. 17 Md. Jamaluddin, P.W. 18 Abhay Kumar Jha and PW. 19 Baleshwar Choudhary.

The defence has also examined two witnesses, namely, D.W.1 Yamuna Prasad Chauhan and D.W. 2 Vijay Kumar Yadav in support of the fact that there is land dispute between the parties and due to that land dispute the appellants were falsely implicated in this case.

Out of the above said nineteen witnesses examined on behalf of the prosecution only two witnesses i.e. PW. 2 and PW. 17 are the eye witnesses of the occurrence. P.W. 1 is a formal witness. P.Ws. 5, 6, 7, 8, 9, 10, 11, 12, and 13 are hearsay witnesses. PWs. 3, 4, 14 and 15 are seizure list witnesses. PW. 18 is the witness who had produced the material exhibit and PW. 19 is the I.O. of this case. From the perusal of evidence of above said witnesses it appears that PWs. 6, 9, 10, 11, 12, 13 and 16 have not supported the prosecution case so far the identification of the accused is concerned and so they have been declared hostile by the prosecution. Thus, in this case the evidence of PWs. 2, 5, 7, 8 and 17 becomes relevant.

First of all, I would like to see whether the witnesses have supported the factum of dacoity. In this regard, I find sufficient evidence on record to hold that on the alleged date of occurrence a dacoity was committed in the house of the informant (Md. Jamaluddin) and his two brothers. The factum of dacoity stands proved from the evidence of PW. 2 Samad Khan, PW. 5 Md. Sattar, PW. 6 Md. Farooque, PW. 7 Md. Shamim Akhtar. P.W.8 Jamil Khan, PW. 9 Serajuddin, PW. 10 Md. Hasib Khan, PW. 16 Mehdi Hasan and PW. 17 Md. Jamaluddin. All the above said witnesses have fully supported this fact that on the alleged date of occurrence a dacoity was committed in the house of Md. Jamaluddin and his brother Samad Khan. Thus, on the basis of the evidence of the above said witnesses I hold that the prosecution has been able to prove that on the alleged date of occurrence a dacoity was committed in the house of Md. Jamaluddin and his brother Samad Khan.

The next question is as to whether the appellants were the dacoits who had committed dacoity in the house of the above said persons. On this point, the evidence of PW. 2 Samad Khan, PW. 5 Md. Sattar, P.W.7 Md. Shamim Akhtar, PW. 8 Jamil Khan and PW. 17 Md. Jamaluddin is relevant.

PW. 17 Md. Jamaluddin is the informant of this case. His evidence is that on 13.2.94 at about 8.00 P.M. the occurrence of dacoity had taken place in the house of his three brothers. At that time, he was taking his meal. On hearing halla he thought that his two brothers were quarreling but when he went there he saw about 10-12 persons armed with Khanti, Farsa, Rifle at the house of his brothers. He has further deposed that as soon as he reached at the Verandah of the house he was assaulted by the decoits with lathi, whereupon, he fled away and concealed himself in nearby from where he identified Babu Lal Mistry, Devendra Chauhan, Suman Chauhan amongst the dacoits. He further deposed that the dacoits looted away the cash and ornaments from the house. He has further deposed that he gave fard-e-bayan about the occurrence and put his signature on the fard-e-bayan (Exhibit-3). From the evidence of PW. 17 it appears that he has not named Pratap Chauhan amongst the dacoits although his fard-e-bayan shows that he had also identified Pratap Chauhan amongst the dacoits. At para 8 of his cross-examination, this witness has deposed that Pratap Chauhan was known to him from before the occurrence of dacoity, he is the grandson of Biltu Chauhan. This statement of P.W. 17 establishes that he intentionally left Pratap Chauhan.

Likewise, PW. 2 Samad Khan has deposed that he had identified only two persons, namely, Suman Chauhan and Babu Lal Mistry, amongst the dacoits and he did not name Pratap Chauhan although at para 3 he admitted that before the police he had named Pratap Chauhan. This shows that PW. 2 has also intentionally left the name of Pratap Chauhan amongst the dacoits.

PW. 16 Mehdi Hasan is one of the victim who at the time of commission of dacoity had sustained injury at the hands of dacoits. He appears to be very important witness in this case. He has deposed that during the commission of dacoity the dacoits had assaulted him but he had not identified any of the dacoits. He has been declared hostile by the prosecution.

The rest witnesses, namely, P.Ws. 5, 6, 7, 8, 9, 10, 11, 12, and 13 are hearsay witnesses and amongst them only P.Ws. 5,7 and 8 have deposed that the informant had disclosed the name of dacoits, namely, Pratap Chauhan, Suman Chauhan and''Babu Lal Mistry to them. The rest witnesses have deposed that the informant did not disclose the name of any dacoits.

So far P.Ws. 1, 3, 4, 14 and 15 are concerned, they are not the witnesses on the point of occurrence, rather, PW. 1 is a formal witness and PWs. 3 and 4 are the witnesses on the point of seizure of some articles like Khanti, Chappal, arrow etc. and they have proved their signatures (Exts.- 2 and 2/1) on the seizure list of those articles. PWs. 14 and 15 have proved their signatures on the seizure list of a knife which have been marked Exts. 2/2 and 2/3 respectively. PW. 18 has produced the material exhibits i.e. Chappal, Khanti, arrow and a lathi, marked material exhibits I, II, ill & IV respectively.

Thus, there remains the evidence of P.Ws. 2 and 17 only on the point of identification of the accused. I have already stated above that firstly PW. 2 did not name appellant Pratap Chauhan but later on when his attention was drawn towards the fard-e-bayan, he admitted that he had named Pratap Chauhan also amongst the dacoits but PW. 17 Md. Jamaluddin, who is another eye witness of the occurrence did not corroborate the evidence of PW. 2. He did not name appellant Pratap Chauhan amongst the dacoits. Likewise PW. 7 and 8 (except PW. 5) did not depose that PW. 2 or PW. 17 had disclosed the name of Pratap Chauhan amongst the dacoits. However, P.W.2 and PW. 17 both have fully supported that they had identified Babu Lal Mistry amongst the dacoits. Thus, from the evidence of both the eye witnesses the identification of appellant Pratap Chauhan amongst the dacoits becomes very doubtful.

The question is whether the evidence of P.Ws. 2 and 17 on the point of identification of appellant Babu Lal Mistry is reliable. At the very outset, I would like to say that the evidence of the above said witnesses on the point of identification of appellant Babu Lal Mistry is also very unreliable because of the fact that most of the prosecution witnesses, namely, P.Ws. 6, 9,10,11,12 and 13 did not support this fact that immediately after the occurrence P.Ws. 2 and 17 had disclosed the name of any of the accused. Even PW. 16, who had also sustained some injury at the time of alleged occurrence of dacoity did not depose that he had identified any of the dacoits including Pratap Chauhan and Babu Lal Mistry. PW. 2 at para 7 has deposed that he knows Babu Lal Mistry for 4 to 5 years from before the date of occurrence. PW. 5 has deposed that he knew Babu Lal Mistry for the last 10 to 12 years. Other witnesses have also supported this fact which establishes that Babu Lal Mistry was closely known to the informant and his brother Samad (PW. 2) but PW. 17 (informant) has deposed at para 10 that the dacoits had not covered their faces and at para 8 he has deposed that all the dacoits who were committing dacoity and doing assault were outsiders. This shows that there is possibility that due to some other reason PW. 2/P.W 17 named this appellant (Babu Lal Mistry) amongst the dacoits. It has been stated by PW. 12 at para 3 of his deposition that Babu Lal has constructed his house over the land of the informant and that house stands in the name of his father (Sone Lal Mistry). In support of this statement the defence has brought two rent receipts (Exts. E and E/1) and Khatiyan (Exts. D) on record. It has been suggested to PW. 17 that due to land dispute he has falsely implicated Babu Lal Mistry and the circumstance indicates that there is possibility that due to land dispute he might have been implicated in this case. Thus, from the evidence of the above said witnesses it appears that although the occurrence of dacoity is true but it is very doubtful that these two appellants were the dacoits who had committed dacoity in the house of the informant and others on the alleged date of occurrence.

In such view of the matter, I am of the opinion that benefit of doubt should be given to the appellants. In the result, I find merit in these appeals and both the appeals are allowed and the order of conviction and sentence passed against the appellants is hereby set aside. Both the appellants are acquitted of the charge u/s 395 of the Indian Penal Code. Appellant Pratap Chauhan (in Cr. Appeal No. 180 of 1999) is on bail and, as such, he is discharged from the liabilities of his bail bond. Appellant Babu Lal Mistry (in Cr. Appeal No. 37 of 2000) is in jail custody. He is directed to be set at liberty forthwith of not required in any other case.