SULTAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN the midnight of 23rd June, 1985 while there was storm and incessant rain and house inmates where awakened, Hasibur Rahman (PW 6) noticed Belal who was his house guard, moving with torch in the north east direction, pursuant to which he shouted in a loud voice. When Hesibur Rahman flashed his torch light outside the window of the room, he noticed some persons who had over powered Belal, and identified Hasibul who was one of them and was also a notorious criminal. Shortly thereafter it was alleged that there was an explosion of bomb and the dacoits breaking open the planke of the door sneaked in his soon, assaulted him and also did assault other house inmates and decamped with the booties which include utensils, ornaments and other house belongings. Hasibur Rahman claimed to have identified Hasibul Mian, Kalam, Hirba Yadav and Islam Mian among those who allegedly committed dacoity in the house and with these narrations, fardbeyan of Hasibur Rahman was recorded by S.N. Singh, Sub -Inspector of police in the following morning at 1.35 hours which forms basis of First Information Report drawn up by the police. The investigation commenced and in the process of investigation, the Investigating Officer recorded statement of witnesses, got test identification parade conducted by a Judicial Magistrate and eventually laid charge -sheet before the court against Hasibul Mian, Sultan and one Jagdish also, who eventually on being committed to the Court of Sessions, were put on trial. Since Jagdish Sah had been absconding thereafter, his trial was bifurcated from the rest of the accused. In the eventual trial, the prosecution examined altogether seven witnesses, of whom Wasim Ahmad PW was tendered by the prosecution and there was nothing material in his evidence to merit consideration. Ijafuddin PW 1, Babar Ali PW 2, Majibur Rahman PW 3 though they did not claim to have identified those who participated in the commission of dacoity in the house of Hasibur Rahman, stated to have visited the place of occurrence shortly after explosion of bomb, when noticed house belongings scattered. They also claimed to have been informed by Hasibur Rahman about identification of the appellant Hasibul Mian and others, Md. Belal PW 5 stated to be on petrolling duty on that night when he noticed fifteen dacoits coming from the east side when they over powered him. He claimed to have identified Hasibul Mian in the test identification parade, who was holding a gun with him. After he raised alarm his master flashed light of torch from eastern window of the room where he was living and he too noticed Hasibul Mian. He would state that the miscreants broke open the door plank and having gained their access in inner appartment of the house, removed house belongings. After the villagers flocked to the place of occurrence the miscreants retired from the place of occurrence after taking recourse to firing and explosing bomb. This witness claimed to have identified Sultan, another appellant, during the test identification 40. parade. The evidence of Hasibur Rahman PW 6 was reiteration of early version which he rendered before the police, about identification of Hasibul Mian and others. It was stated by him that the miscreants got their access in inner apartment of the house/and having coerced the house inmates removed house belongings. This witness too claimed to have participated in the test identification parade when Sultan was identified by him. This is all the evidence that has been adduced on behalf of the State.

(2.) LEARNED counsel appointed as Amicus Curiae to assist the court while criticising the credibility of the evidence of the witnesses would urge that as identification of the appellants were based only on the evidence of the master of the house and also his employee, who were quite interested in the case of the prosecution, the bona fide of the prosecution versions has to be discarded for the exclusion of independent witnesses residing in the vicinity of the place of occurrence who are expected to have flocked there shortly after the receipt of information about the incident. Learned counsel for the State would counter the arguments advanced on behalf of the appellants.

(3.) THOUGH the appellants Hasibul Mian has suffered rigorous of the prosecution about 15 years but in view of the nature of offence shown to have been committed by him, I do not find myself pursuaded to take a lenient view in the matter of awarding sentence to him.