Rakesh Kumar vs The State of Bihar

Gopal Prasad, J.—Heard the learned counsel for the appellant and the State.

The appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for five years with a fine of rupees three thousand and in default of payment of fine to undergo rigorous imprisonment for one month.

The prosecution case as alleged that the informant, Suresh Kumar, on 28.02.2010 at about 10.15 p.m. lodged fardbeyan that he is deputed at the residence of Additional District Judge, I, Muzaffarpur, and when at 09.00 p.m. he entered into the quarter, then, saw the lock of the gate (grill) broken, he made alarm (hulla) of thief. In the meantime, 2-3 persons having covered their faces came armed with pistol and caught hold of him and closed him in a room of that quarter. On his alarm (hulla) four Guards of the Court, who were staff of the Court, came and when the staff and other officers came around the quarter, they saw four accused persons armed with bag and mobile and some armed with other articles managed to flee away. Two accused persons though tried to escape by scaling the wall, but, were apprehended and caught hold by the staff and other officers. It is, further, alleged that four accused persons, fled away after firing, but, two accused persons were caught hold were searched, one person, disclosed his name as Rakesh Kumar @ Umesh Sahni @ Md. Aslam @ Gorka, resident of Gaffar Basti, P.S. Brahampura, district Muzaffarpur, and from his possession a black laptop was recovered and from the possession of other person, who disclosed his name as Shashi Kumar Sahni, a hammer meant for breaking lock was recovered along with iron rod. He has, further, stated that at the time of locking the informant in the room all the six persons had assaulted him and said Rakesh Kumar @ Umesh Sahni @ Md. Aslam @ Gorka and Shashi Kumar Sahni also disclosed the names of their co-associates, who fled away as Binod Kumar Sahni, Md. Ashraf, Md. Parvez and Md. Tauqeer with their addresses. The matter was immediately reported to the Police Station and the police force came, the fardbeyan recorded, first information report lodged and seizure list prepared and after investigation charge sheet submitted.

On the fardbeyan, the first information report lodged and police after investigation submitted the charge sheet.

During the trial five witnesses were examined, who are P.W. 1, Ale Sarwar Haideri, P.W. 2, Md. Azad, P.W. 3, Arvind Kumar Singh, P.W. 4, Suresh Kumar, and P.W. 5, Neeraj Kumar.

The police after investigation submitted the charge sheet, cognizance taken under Sections 395 and 412 of the Penal Code and subsequently charge were framed after commitment of the case for offence under Sections 395 and 412 of the Penal Code and after taking into consideration the evidence of the witnesses, the appellant was convicted under Section 395 of the Penal Code, as mentioned above. However, it was held that since the conviction has been made under Section 395 of the Penal Code, it is not proper to convict the appellant for offence under Section 412 of the Penal Code, hence, it was held that charge under Section 395 of the Penal Code having been established and the appellant has been convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment for five years with a fine of rupees three thousand and in default of payment of fine to undergo rigorous imprisonment for one month.

The learned counsel for the appellant, however, contends that the offence under Section 395 of the Penal Code has not been established as witnesses have not supported the prosecution case that more then five persons had committed the occurrence to infer the convict that a dacoity was committed. It has, further, been contended that the looted article has not been proved to be the article of theft or article of dacoity.

However, taking into consideration the evidence in view of the submission made by the learned counsel for the appellant, it is apparent that the prosecution case in the first information report, itself, is that P.W. 1 when come to the quarter, found the lock broken and when he made alarm (hulla), more than six persons came and caught hold of him and locked him in the house, but, in the meantime, the other staff and officers came, he was rescued and four of the accused persons fled away and two while being unsuccessful in scaling the wall were caught hold. The witnesses, P.W. 1 has supported the prosecution case and has stated that when he reached there, he found the grill unlocked and he was caught hold and locked in a room and on his alarm (hulla) some other employees and officers came and two accused persons were caught hold. P.W. 2 has also supported the prosecution case that two persons were caught hold and from their possession theft articles were also recovered and seizure list prepared and also has proved his signature on the seizure list and he identified the persons in dock, who were apprehended. However, P.W. 3 though declared hostile, but, in his cross examination he has stated that he has stated before the police and supported the prosecution case that four accused persons were fled away firing and they succeeded in fleeing away while two persons were caught hold. From his evidence, it is apparent that there were six persons while committing occurrence. P.W. 4 has also supported the prosecution case regarding the apprehension of two persons at the place of occurrence at the time of dacoity, itself, and supported the search and seizure and proved his signature on the seizure list. P.W. 5 is the Officer-in-Charge, who has stated that he found the objective evidence of dacoity at the place of occurrence and found the broken lock of the grill and also found that the attempts were also made to unlock the kitchen and store room and he found the locks of the grill of verandah and three rooms broken and found the articles in the room ransacked and even attempts were made to unlock the kitchen, hence, from his evidence there is objective finding of dacoity and, further, article for breaking open the lock and other article apprehended.

Having regard to the facts and circumstances of the case, from the evidence of the witnesses it is apparent that more than six persons entered the premises, broke open the lock to enter into the room and house, ransacked the house hold articles and apprehended while fleeing away and from their possession articles to break the lock and laptop recovered. The appellant was apprehended at the spot and caught hold and was identified in the dock by the witnesses and there was sign of dacoity in the house, itself, and recovery of the articles on the spot, hence, the prosecution ahs been able to prove the charges and I do not find an merit to interfere in the order and sentence of the lower Court.

This appeal is dismissed.