Raj Kumar Paswan vs State Of Jharkhand

Rajesh Kumar, J

Heard Mr. A. K. Chaturvedi, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Special P.P.

The present appeal is directed against the Judgment of conviction dated 08.02.2007 and order of sentence dated 13.02.2007, passed by learned 3rd Additional Sessions Judge, Garhwa, in Sessions Trial No.100 of 2005, whereby the appellants have been convicted for the offence under Section 395 of the Indian Penal Code (IPC) and have been directed to undergo rigorous imprisonment for eight years with fine of Rs.5,000/- (Five thousand only) each with default clause.

The criminal law has been put into motion by lodging an F.I.R being Garhwa P.S. Case No.235 of 2005 against six unknown persons. The F.I.R has been lodged on the fardbeyan of informant namely, Birendra Vishawakarma (P.W.-5).

The brief facts of the case is that on the intervening night of 7/ 8th September, 2004, the informant (P.W.-5) a retired Army man along with his wife Bindia Devi (P.W.-8), grand-daughters, Mamata Devi (P.W.-1) and Dipti Kumari (P.W.-2) was watching the T.V. in a room situated at village Tildag, P.S.- Garhwa, District of Garhwa whereas his elder son Nand Kishore Vishawakarma (P.W.-4) had gone to the roof of the house to sleep with his wife Fulbasia Devi (P.W.-7). At about 10.30 P.M suddenly, six dacoits entered into the room and aimed their pistol at them with an intention to terrorise them. Dacoits asked him to hand over his gun, which he stated that he had no gun and thereafter, dacoits started threatening him and demanded the belongings of the house and started searching the box and asked for the keys of the boxes. His wife, out of fear, gave a bunch of keys and they started searching the boxes one by one by opening it and took out the gold and silver ornaments kept in the boxes. His pension paper, LIC paper, cash Rs.2500 and valuables including 3 silver lockets, gold ear-ring and gold top kept in the box of his wife and mangtika made of gold, gold chain, gold nathuni, three gold chhuchhia, Jitia made of gold, gold top, silver panja, silver kangan one payal and three pairs bichhia kept in the box of grand-daughter Mamata Devi, who came on the eve of Raksha Bandhan, were removed. In course of ransack, one dacoit came to the front room of the house, used as clinic, and opened the almirah and took out cash of Rs.1000/- from it and in drawer of the table in which one HMT wrist watch with steel chain was removed. Dacoits also looted away one radio made of Ramsons company with green cover, one two cells Salora Torch, one 3 cells EverReady torch and two small hand bags of black colour. In course of dacoity, two dacoits went to the roof and brought back his son Nand Kishore Vishawakarma and daughter-in-law to the ground floor. At the time of departure, dacoits were taking camera of his grand-daughter but at the earnest request of his grand-daughter, they left it. His grand-daughter also requested the dacoits not to take away her ornaments. Then out of them, one dacoit asked to return back the ornaments. They were calling him as Chachaji and his son as Bhaiya, thereafter, dacoits took his son with them from back door of the house and also kept them confined in the T.V. room. After an hour he anyhow opened the door of the room with his hand and came out of the room. Thereafter, about half an hour, his son returned back and stated that he was taken to Gijana School by them. Dacoits looted the belongings of the house for about half an hour. On hulla, villagers came to home then he narrated them about the occurrence. All dacoits aged about 20-25 years were speaking colloquial language. He detailed about the description of the dacotics. Three empty liquor pouches were found laying on the earthen tiles-roof and behind his house. It seemed that they were intoxicated. At the time of departure with his son, dacoits threatened that if he raised hulla, his son would be done to death. He claimed to identify the dacoits as dacoits were seen by him in electric light. In course of dacoity, dacoits stated that they would go to the village Parihara, where his son Nand Kishore Vishawakarma lived with his wife and in the evening on that very day, he came to his house with his wife. Dacoits looted away the belongings worth about Rs.23,500/-.

On the basis of said allegation, the police, after investigation, has submitted charge-sheet against six persons. Upon which, cognizance has been taken and charge-sheet has been submitted. The charge has been framed on 02.05.2005 under Sections 395 and 412 I.P.C and the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried.

To substantiate the charges, the prosecution has examined altogether 10 witnesses. One witness has been examined as defence witness (D.W.-1) to support the defence version.

P.W.-1, Mamta Devi, is the grand-daughter of the informant. Paragraph Nos.8, 11, 13, 17 & 19 of her statements are important, which suggest that one of the appellants namely, Raj Kumar Paswan was very much known to this witness and she has disclosed his name before the police.

P.W.-2, Dipti Kumari, is also the grand-daughter of the informant and she was present in the house, at the time of occurrence. Paragraph Nos.6, 9, 11 & 12 of her statements are relevant, which suggest that so called seized articles are general in nature and the accused were known to this witness.

P.W.-3, Brij Bhuiyan, is a seizure list witness, but he has been declared hostile.

P.W.-4, Nand Kishore Vishwakarma, is the son of the informant. Paragraph Nos.11, 16, 17, 18, 19, 20, 21, 22, 27, 30 & 39 of his statements are important and from perusal of the aforesaid paragraphs, it clearly suggests that the appellant, namely, Raj Kumar Paswan was very much known to him rather, he is a neighbour. There is statement of land dispute also.

P.W.-5, Birendra Vishwakarma, is the informant of the case. Paragraph Nos.8, 12, 14, 16, 17, 18 & 30 of his statements suggest that the seized articles were general in nature and one of the appellants namely, Raj Kumar Paswan was very much known to the family members rather he was a neighbour and there was a land dispute also.

P.W.-6, is the Judicial Magistrate, 1st Class, Garhwa, who has proved the Test Identification Parade of the accused persons.

P.W.-7, Fulbasia Devi, is the daughter-in-law of the informant and her statement is not a worth consideration.

P.W.-8, Bindiya Devi, is the wife of the informant and she has stated in paragraph Nos.5 & 6 that the appellant namely, Raj Kumar Paswan was very much known to the family.

P.W.-9, Dinesh Prasad, is a formal witness, who has proved the fardbeyan.

D.W.-1, Gopichand Paswan, is the father of one of the appellants namely, Raj Kumar Paswan and he has stated that the allegation is false, rather no incident of dacoity has been taken place.

The Trial Court, after evaluating the evidence and material brought on reord, has acquitted three accused namely, Shyam Lal Soni, Babloo @ Anil Choudhary and Mangal Paswan and convicted the present appellants namely, Raj Kumar Paswan, Rajbali Paswan and Jhuman Sao, under Section 395 I.P.C. All the six accused persons have been acquitted for the offence under Section 412 I.P.C.

Learned counsel for the appellants has made following submission :-

(i) The factum of dacoity has not been proved as the seized articles were not found to be stolen one.

(ii) The Investigating Officer has not been examined and as such the place of occurrence has not been proved. Thus, there is no evidence on record, suggesting that the dacoity has ever taken place. Even, it is presumed that the crime has been committed then in that case the identification of the accused is also manipulative as one of the appellants namely, Raj Kumar Paswan, was a neighbour, was also known to the informant and his family members and in spite of that the F.I.R has been lodged against unknown persons.

(iii) The witnesses have clearly stated that there was a land dispute between the parties and one of the appellants namely, Raj Kumar Paswan was earlier chowkidar.

On the strength of the above points, it has been submitted by the learned counsel for the appellants that neither there is any material to prove the factum of dacoity nor there is any material, connecting these appellants with the crime.

Learned Special P.P has supported the factum of conviction, stating that the witnesses have clearly stated that the dacoity has taken place and these appellants have been identified in TIP as well as in the dock.

Learned Special P.P has further submitted that the factum of dacoity and identification of articles have been done by the informant and as such conviction of these appellants is justified.

Having heard learned counsel for the parties and from perusal of the record, it appears that :-

(a) all the accused persons including these appellants have been acquitted for the charge under Section 412 I.P.C as the looted articles have not been seized. Neither there is evidence regarding place of occurrence nor there is evidence regarding commission of dacoity.

(b) neither any injury has been reported nor any weapon/ article has been recovered.

(c) the accused were very much known by the informant side and some of the witnesses have stated that they have taken the name of the accused before the police, but the police has lodged the F.I.R against unknown persons. Thus, there is not only doubt but also there is no material available against the appellants for convicting them for the offence under Section 395 I.P.C

In view of above discussions and the materials available on record, the judgment of conviction dated 08.02.2007 and order of sentence dated 13.02.2007, passed by learned 3rd Additional Sessions Judge, Garhwa, in Sessions Trial No.100 of 2005 is, hereby, set aside.

The appellants are on the bail, hence, they are discharged from the liability of bail bond.

In the result, the appeal stands allowed.

Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.