Shobha Yadav and JamunaYadav vs The State of Bihar

I.P. Singh, J.—These three appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment.

Appellant, Jamuna Yadav has been convicted u/s 395 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced to undergo rigorous imprisonment for five years. Appellants Sobha Yadav and Brij Nandan Dusadh have been convicted under Sections 395 and 412 of the Code and sentenced to undergo rigorous imprisonment for five years each under both counts. Appellants Ramayan Yadav and Birendra Sonar have been convicted u/s 412 of the Code and sentenced to undergo rigorous imprisonment for five years each. Appellant Sadan Dubey has been convicted u/s 395 of the Code and sentenced to undergo rigorous imprisonment for five years.

Prosecution case, in short, is that on 9/10th September, 1985, the informant, Ram Nath Sah was at his house at about mid night, three miscreants entered his courtyard from the southern side of his house. It has been stated that the informant with the help of his brother Jagar Nath Sao caught one miscreants, who was having country made gun and the informant identified him as Jamuna Yadav. It has been stated that two miscreants started assaulting him by Lathi and also confined and tied his hand and also of his brother with Lungi and thereafter they broke open the lock of the main door of the house. Meanwhile the other miscreants entered the room and amongst them he identified one Appellant Shobha Yadav. He also identified one other miscreant by face. His name was not known to him. It has been stated that the miscreants had torch, Rami and they looted ornaments, cash, utensils and clothes etc. The description of the theft articles was also given by the informant. It has also been stated that if the articles so stolen are shown to him he can identify them. After committing dacoity the miscreants fled away and they also made gun fire but nobody was injured. Thereafter the informant went to the police station and his Fardbeyan was recorded. On the basis of his Fardbeyan first information report was instituted. The police started investigation and after completion of investigation charge sheet was submitted against the accused persons under Sections 395 and 412 of the Code. Accordingly, Chief Judicial Magistrate took cognizance of the offence and the case was committed to the court of Sessions where the trial concluded with the result as indicated above.

The Appellants pleaded not guilty and stated that they had been falsely implicated in this case.

The prosecution in support of its case examined altogether ten witnesses. P.W. 1 is Meena Devi, P.W. 2 is Jagar Nath Sao, P.W. 3 is Jodhan Singh, P.W. 4 is Baliram Singh, P.W. 5 is Sheo Nandan Prasad, a formal witness, P.W. 6 is Sarswati Devi, P.W. 7 is Shanti Devi. She has been tendered. P.W. 8 is Ram Lal Sao, informant and P.W. 9 is Raghubansh Narayan Singh, I.O. of this case and P.W. 10 is Prakash Chandra Gupta, Judicial Magistrate, who had conducted T.I. Parade of the suspects.

P.W. 8, the informant of this case has fully supported his Fardbeyan and has stated that in the night of the occurrence he was sitting in his courtyard, in the meantime, three miscreants armed with gun and torch entered into his house, out of whom, he identified Appellant Jamuna Yadav in the torch light of the accused persons. According to him, he was a co-villager. He with the help of his brother Jagar Nath Sao caught him and then the rest of the dacoits started assaulting them and also tied them by their Lungi and got them sited in the courtyard. The dacoits opened the door of the house and entered the room and he identified Shobha Yadav, who was 6f village Bhatauli. According to him, the dacoits looted ornaments, clothes, utensils etc. and subsequently the looted articles were also recovered from the possession of some of the dacoits. He also identified one of the dacoits, Brij Nandan Dusadh in T.I. Parade. P.W. 2, the brother of the informant has also supported the prosecution story and has stated that at the time of the occurrence he was present at his house. He along with his brother P.W. 8 caught one dacoit but in the meantime other dacoits tied them and asked them to sit in the courtyard. He identified the Appellants Jamuna Yadav, Sobha Yadav and Brij Nandan Dusadh. According to him, the dacoits fled away firing guns. P.W. 3 has also supported the version of P.W. 8 and P.W. 2. According to him he was sleeping at his home and in the mid night he heard Hulla upon which he woke up and went out and flashed his torch towards western side and saw Appellant Sadan Dubey standing in the lane having a gun in his hand. The accused Sadan Dubey also fired from his gun but it could not hit anybody. P.W. 4 has stated that at the time of occurrence he was sleeping in his house. He woke up on Hulla. He flashed his torch in which he also identified Appellant Sadan Dubey who was having a gun in his hand. P.W.1 and P.W.6 have not identified any of the dacoits but they have supported the manner of dacoity and have stated that the stolen articles were recovered from the possession of some of the dacoits which were kept at T.I. Parade and they identified the articles which were material Exts. I series. P.W. 5 ASI has stated that he brought the recovered articles from the P.S. Malkhana to the court. P.W. 9, I.O. of this case has stated that on 10.9.85 he was Officer-in-Charge of Baghaila P.S. and he recorded the Fardbeyan of the informant on the basis of which first information report was drawn up. He also started investigation of the case and visited the place of occurrence. He also seized some of the materials on the spot such as butt of the gun and prepared a production list Ext. 2. According to him, the informant also produced some empty boxes and he prepared seizure list of the same. He has further stated that on the same day he raided the house of the Appellant Jamuna and Shobha and seized the stolen clothes, utensils and prepared seizure list Ext. 2/1. He also raided the house of Appellant Birendra Sonar in presence of the witnesses and seized the stolen clothes etc. and prepared seizure list Ext. 2/2. Thereafter he raided the house of Appellant Ramayan Yadav and from there also he recovered the stolen clothes and a seizure list was prepared Ext. 2/3. He also raided the house of Appellant Brij Nandan Dusadh and recovered the stolen articles such as clothes, utensils and prepared a seizure list Ext. 2/5. At the time of raid none of the Appellants was present in his house. According to him, on 28.9.85 he got the T.I. parade conducted by the Circle Officer, Nokha of the recovered articles and the same articles were identified by the witnesses. P.W. 10 Prakash Chandra Gupta, Munsif, Sasaram got conducted T.I. parade on 5.12.85 of the suspects and the informant P.W. 8 only identified Appellant Brij Nandan Dusadh.

Learned Counsel for the Appellants submitted that the source of identification torch and Lungi by which the informant and his brother both were tied, were not produced in the court. It has been further submitted that the Appellants were co-villagers and their identification in T.I. Parade has no meaning. According to him, the T.I. Parade of stolen articles was conducted by Circle Officer but he was not examined which has prejudiced the case of the Appellants. The submission of the learned Counsel that the means of identification was torch which has not been produced in the court however in the matter of identification of Appellant Jamuna who was caught hold by Jagarnath during commission of dacoity and he was having a gun in his hand, this description given about Appellant Jamuna Yadav in the Fardbeyan there cannot be any doubt on his identification. Even if the torch was not produced the case of the prosecution cannot be discarded solely on this ground. As the Appellants were co-villagers it was easy to identify them from their features, voice and gesture. The Appellant Sobha Yadav was also identified by the informant and his brother during commission of dacoity. He entered in the house having a gun and looted articles were also recovered from his house which were identified by inmates of the house. One of the dacoits Brij Nandan Dusadh was also identified in the T.I. Parade by the informant. The submission of the learned Counsel that there was enmity with Appellant Sadan Dubey but this point was also raised before the court below and the court below has elaborately discussed this point and rightly come to the conclusion that there was no direct enmity with the Appellant Sadan Dubey and P.W. 4 Bali Ram who identified him. From the record it appears that the Appellants Jamuna Yadav, Sobha Yadav and Brij Nandan Dusadh were identified by two witnesses and Appellant Jamuna Yadav and Shobha Yadav have been named in the first information report also. That apart, there was recovery of stolen articles from the house of Appellant Shobha Yadav and Brij Nandan Dusadh. The court below has rightly found Shobha Yadav, Brij Nandan Dusadh guilty for the offence punishable under Sections 395 and 412 of the Code and also found Jamuna Yadav guilty for the offence punishable u/s 395 of the Code. I do not find any reason to interfere with the conviction and sentence of these Appellants passed by the Court below. Accordingly, their conviction and sentence passed by the court below are upheld. The other Appellants Sadan Dubey, Ramayan Yadav and Birendra Sonar have been convicted u/s 412 of the Indian Penal Code. But, considering the submission of the learned Counsel that there were contradictions about the presence of Appellant Sadan Dubey by the two witnesses. According to one of the witnesses he was standing in the lane whereas the other has stated that he saw him from the shop. It has been also pointed out that the articles so recovered from the house of the Appellants were of common use and the person who conducted T.I. Parade of the stolen articles has not been examined prejudicing the case of these Appellants. But, the court below on appreciation of evidence so adduced convicted the Appellants for the offence punishable u/s 412 of the Code. I do not want to interfere with the conviction of these Appellants.

However, coming to the question of sentence learned Counsel for the Appellants submitted that the Appellants were co-villagers and the occurrence took place in 1985 about 17 years ago and there is no criminal antecedents and previous conviction against them. Moreover they have remained in jail for some time. Therefore, it requires consideration on the point of sentence. Having regard to the submission so raised I am of the view that the ends of justice will be met if the sentence of these Appellants Ramayan Yadav, Birendra Sonar and Sadan Dubey is reduced to the period they have already undergone in jail with a fine of Rs. 500/- each to be deposited by them within three, months from the date of receipt/production of a copy of this order, in default, to undergo rigorous imprisonment for six months. Accordingly, the appeal against Jamuna Yadav, Shobha Yadav and Brij Nandan Dusadh is dismissed and appeal against Ramayan Yadav, Sadan Dubey and Birendra Sonar is dismissed with the aforesaid modification in sentence.