MOHD HALIM Vs. STATE OF BIHAR

JUDGEMENT

(1.) In the night of 9th February, 1983 while Sheikh Mumtaz (PW 7) along with his son Md. Mujibur Rahman was enjoying the warmth of fire, some miscreants who covered their faces by pieces of clothes having broken open the door planks, gained their across in the inner apartment of the house and coercing the house inmates removed house belongings which include ornaments, utensils, wearing apparels, sword and cash etc and shortly decamped with the booties and with these narrations farebeyan of Sheikh Mumtaz was recorded and the first information report was drawn at Araria police station. After the police was set in motion, the investigation commenced and in process of investigation, the police took various steps, recorded statement of the witnesses under Section 161 of the Code of Criminal Procedure, allegedly made recovery of part of the booties shown to have been removed from the house of the victims, apprehended appellants, arranged test identification parade of the articles and on conclusion of investigation laid charge-sheet before the Court. The appellants along with Sk. Israil were put on trial when they denied their complicity in the commission of dacoity that was shown to have been committed in the house of Sheikh Mumtaz in the night of incident and claimed themselves to be innocent. In the eventual trial, the prosecution examined altogether 10 witnesses including the house inmates of the premises which were ransacked by the miscreants, the police officer and also some formal witnesses, and the trial Court placing implicit reliance on the testimony of these witnesses, while acquitted Sk. Israil of the charges, rendered verdict of guilt against the appellants both under Sections 395 and 412 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for nine years on each count.

(2.) Now adverting to the evidences placed on the record, one would find Kanhaiya Pandey PW 1 to be a formal witness and there was nothing materials in his evidence to merit consi deration. Md. Mujibur Rahman PW 2 stated to have been enjoying the warmth of fire when miscreants gained their access in the house and tied him with the piece of cloth, Gayasuddin too was tied with piece of cloth and on making queries about whereabout of belongings kept in the house, they removed ornaments, utensils, wearing apparels, sword etc. The allegation about assault also on house inmates, warm attributed to the miscreants. Similar is the evidence of Nasib PW 3 about the miscreants having gained access in the inner apartment of the house on breaking open the door planks and removing utensils, ornaments, wearing apparels etc. from the house. The evidence of Md. Ziauddin PW 4 was also in similar term about dacoity committed in the house in the night of the incident. Md. Sayeed PW 5 stated to have reached the place of occurrence shortly after the incident when the miscreants had already made retreat. He learnt about removal of house belongings from the house. Haji Mumtaz PW 7 would render his statement in similar terms about commission of dacoity in his house when miscreants removed wearing apparels, utensils etc. The allegations were attributed to the miscreants about assaulting house inmates. He stated to have set the police in motion to bring the culprits to book. He also claimed identification of one Badhana in the test identificaation parade that was arranged by the prosecution. Shaikh Bakruddin PW 8 stated about removal of house belongings from the house by the miscreants which includes wearing apparels and sword. He alleged to have suffered injuries at the hands of the miscreants. He claimed identification of one Deghchi and a sword in the test identification parade of bookies. Brij Bihari Pandey PW 9 who happens to be the police officer stated to have taken company of Mundrika Prasad Singh PW 10 and effected recovery of booties from the house of appellants and one Idris Mian. The witness stated to have drawn first information report on the strength of fardbeyan of Mutaz, pursuant to which investigation was carried out by him. He stated to have visited place of occurrence. He found signs of violence as door planks were found broken and house belongings scattered. The evidence of two police officers would suggest recovery of one deghchi of copper, silver glass and sword from the house of Halim. Recovery of deghchi of copper, one silver badhana, a silver dish and a brass spoon were atributed to Balal. Similarly, recovery of deghchi made of copper was also attributed to Inamul and Idris. The police officer had also brought on the record, the seizure memo which are Ext. 4 series. It would be relevant to mention that ext. 4 series allegedly suggest seizure of those articles which are attributed to the appellants in the evidence of two police officers and these recoveries were shown to have affected in prsence of Bhola and Nayeem who appended their signatures on the seizure memo. The seizure of part of the booties shown to have been made from possession of Idris were affected in presence of Md. Irfan and Abdul Rashid. The police officer brought on the record the T.I.P. chart which is Ext. 5 ostensibly with an object to bring on the record the identificaation of two number of tamba degchi one silver glass, one sari and one brass spoon by Mumtaz and also identification of two number of tamba degchi and one sword by Bakruddin who participated in the test identification parade. This is all the evidence that has been adduced on behalf of the prosecution.

(3.) A lot of criticism have been made on behalf of the appellants to assail the findings recorded by the trial Court on premises of mistaken identification of booty by Mumtaz and Bakruddin. The contentions were raised that though neither any witness was examined by the prosecution claiming identification of any of the miscreants, nor any test identification parade of the person was ever held, the trial Court eventually on the assumption of complicity, based on recovery of goods from their possession rendered verdict of guilt against the appellants under Section 395 of the Indian Penal Code which is bad in law. It is sought to be urged that as a number of goods were shown to have been seized from houses of the appellants, neither seizure memo bare description of those goods nor resembles with the description of goods nor their details are found furnished either in the first information report or in the statement rendered before the police. Learned counsel appearing on behaalf of the appellants found urge that even the manner in which the goods were arranged in the test identification parade and their identification was claimed by the witnesses, was not above board. My attention was drawn to the evidence of PW 7 who would state in positive term that only one badhna was kept in the thana premises during test identification parade and degchi also said to have been identified by the witnesses was only one in number. The witness was not in a position to say even about metals of which, those goods were made of, and that a part, if evidence of PW 7 is taken to be true on its face value, the name of Mumtaz was cribed in Urdu language in badhana. My attention was also drawn to the statement of PW S who admitted in positive term that none of the articles identified by him bore any identification marks and as about number of 4 degchi that was put on test identification parade, he would state that 5 to 10 number of degchi of different descriptions and weights were put on test identification parade. Learned counsel appearing for the State would counter the argument advanced on behalf of the appellants to sustain conviction of the appellants recorded by the trial Court.