RAMESH SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) For a theft that was committed in the shop of Md. Kamrul (PW 6) in the intervening nights of 10/11th February, 1986, a police case had been registered alleging loss of wrist watch and it was alleged that at 12 noon of 22nd March. 1986 while Md. Kamrul was at his shop along with his employee Md. Islam (PW 7). he noticed Ramesh Sah moving with his wrist watch along with Ram Nandan Bhagat and suspecting the watch, to be stolen property of the shop, he asked Md. Islam to ask Ramesh Sah to stop on some pretext. It was alleged that sensing identification of the watch to be a stolen property. Ramesh Sah wanted to conceal the watch and in a bid to escape, was caught by Md. Islam and Ram Nandan Bhagat. Then scuffle ensued between Ramesh Sah and Md. Kamrul, when Ramesh Sah having given teeth bite, managed his release from custody. It was also alleged that Ramesh Sah threw the watch aside which was lifted by Umesh Sah, Alam raised by them, assembled the people and shortly after arrival of the police, the appellants along with Umesh Sah were taken into custody from their houses and with these narrations fardbeyan of Md. Kamrul PW 6 was recorded at 13 hours on 22nd March, 1986 near the house of Mansoor Mian by Sri R.K.Singh. Sub-Inspector of Police, the investigation followed and in the process of collection of evidences, the police recorded statement of witnesses under Section 161 of the Code of Criminal Procedure and get the injured clinically examined by the doctor and on conclusion of investigation laid charge-sheet before the court and on committal to the Court of Sessions, the appellants along with Umesh Sah were put on trial. In the eventual trial that followed after submission of charge-sheet, the prosecution examined altogether nine witnesses including the injured, his employee, the doctor and also those who claimed to be familiar with the incident. The defence of the appellant before the trial court and also before this court was that of innocence and of false implication due to previous enmity persisting between the parties. The trial Court on appreciation of evidences placed on the record, while acquitted Umesh Sah of the charges, found Ramesh Sah guilty under Sections 326 and 341 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year on first count only. Appellant Ram Nandan Bhagat suffered conviction under Section 341 of the Indian Penal Code and was sentenced to suffer simple imprisonment for one month.

(2.) At trial Md. Kamrul PW 6 who was maker of the fardbeyan was reiterating his early version which he rendered before the police, about scuffle having ensued with the appellants on identification of his watch in the custody of Ramesh Sah which had been removed from his shop in the intervening night of 10/11 th February. 1986 for which a police case had been registered. He would state that after Ram Nandan Bhagat took Md. Islam into custody, there ensued scuffle between them. He too grappled Ramesh Sah and when he wanted to take the watch. Ramesh Sah gave a teeth bite in his testicle. He stated to have suffered bleeding on his person, pursuant to which he was admitted to hospital. He was treated by a doctor. Similar narrations were made by Md. Islam PW 7 also about scuffle with the appellants when by teeth bite in the testicle by Ramesh Sah Md. Kamrul suffered bleeding injury on his person. Apart from these two witnesses who claimed to be ocular, the prosecution has examined Abdul Hamid, Gulam Mustafa and Md. Kamre Alam who too claimed to have witnessed the incident. However, PW 2 and 5 were tendered by the prosecution and there was nothing material in their evidences to merit consideration. Dr. Jagdish Rai stated to have clinically examined Md. Kamrul and noticed grievous injury on the testicle of injured caused by teeth biting PW 9 Raj Kishore Singh is the Investigating Officer who stated to have visited the place of occurrence, recorded statement of witnesses and on conclusion of investigation submitted charge-sheet before the Court. This is all the evidence that has been adduced on behalf of the prosecution.

(3.) The learned counsel for the appellants has sought to assail the credibility of witnesses examined on behalf of the prosecution particularly that of Abdul Hamid, Gulam Mustafa and Md. Kamre Alam and it is urged that from the tenor of their evidences, the possibility of witnessing the occurrence and they being ocular witnesses of the incident was remote as they admitted in most uncertain terms about having reached the place of occurrence shortly after Md. Kamrul on receipt of injury had dropped to the ground. It is urged that some of them were also stating about having seen the njured on the first sight with bleeding injury, and on these premises it is sought to be urged that 10 inference about these persons to be ocular witnesses can be drawn. Yet it is urged that all those who were examined by the prosecution were interested in the affairs of the informant and only interested witnesses were examined entirely to the exclusion of the independent witness. The persistant enmity, between the parties were also taken to be a ground to assail the credibility of the witnesses. The contentions were raised that since Md. Kamrul was a handicapped person who could not move, it is most unlikely that he would run and chase to Ramesh Sah for a long distance and the last argument canvassed at Bar was that since Md. Kamrul had not placed on the record at trial, even on being questioned by the defence, the receipt in respect of purchase of wrist watch, even the genesis of incident had not been substantiated by cogent evidence. Learned counsel for the State would strongly resist the contentions raised on behalf of the appellants and urges that the charges against the appellants have been brought home by the State by cogent and unimpeachable evidences.