UDDIN MIANALIAS MUDDIN MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE solitary appellant has preferred this appeal against order of conviction under section 364/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years awarded by learned 1st Additional District and Sessions Judge, Jamui, in Session Case No. 188 of 1991/Trial No. 2 of 1992 on 3rd September 1993.

(2.) THE prosecution case is based on the fardbeyan (Ext.1) of Krishna Prasad Burnawal (P.W.2) recorded on 13.11.1990 by Surendra Prasad Singh, Officer-in-Charge, Sono Police Station, at 8.00 A.M. is that in the previous evening at about 6.00 P.M., while the informant was at his grocery shop, three persons Ramzan Mian, Uddin Mian (appellant) and one Kalho Mian with six unknown well armed arrived. Ramzan and Kolha Mian got hold of him besides his son Ashoke Kumar Burnawal (P.W.5) aged about 10 years, Bijay Burnawal (not examined) aged about 5 years and brought all the three to Kadwa Pahari and started assaulting for a sum of Rs. 50,000/-. He further assured that on payment of the amount they will release his eldest son and on assurance let off informant and his youngest son Bijay Kumar Burnawal, money was to be paid to Ramzan Mian. Reason behind the occurrence as stated is that Ramzan Mian had taken some article on credit from his shop on demand he threatened for dire consequences. THE miscreants proceeded towards west of his house with P.W.3 the informant, when his youngest son was returning to his house in the way met with the villagers who had assembled there after learning about the occurrence on their request he disclosed names of three miscreants and happenings with him. Meanwhile, the appellant Uddin Mian @ Muddin Mian was apprehended by the villagers on chase who confessed the guilt in their presence and was handed over to Chowkidar and Dafadar (both not examined). During chase, he also sustained some simple injuries, in the morning the villagers with apprehended appellant came to police station where he was handed over and fardbeyan was recorded on the basis whereof Sono P.S. Case No. 70/1990 was instituted. During investigation, P.W.3 victim returned home and charge sheet was submitted and after taking cognizance case was committed to the court of sessions and trial commenced after framing the charge for the offence under section 364/149 of the Indian Penal Code against four persons, but ultimately till the end of the trial only three persons were there, out of whom two have been acquitted, but the appellant stands convicted and sentenced giving rise to this present appeal.

(3.) NARAYAN Yadav (P.W.1), has come to support the prosecution case arrived at the door of informant on alarm where wife of the informant P.W.6 intimated him that miscreants has taken out her two sons and husband and proceeded towards Kadwa Pahari. The villagers started proceeding towards the side but found informant and his one son coming and informant P.W.2 intimated them about the happenings with him, then villagers went to the house of the three named accused persons but do not met, roughly two hours thereafter again the team with Choukidar and Dafadar went to the house of Kolha Mian who escaped from there then the group went to the house of the appellant Uddin Mian @ Muddin Mian who went in the house of another from where he was apprehended and subsequently handed over to the police. When the police gave him some treatment he disclosed and confessed his guilt. In the examination-in-chief this witness has changed the sequence and statement of informant as stated in the fardbeyan with respect to apprehension of the appellant by the villagers. Whereas P.W.2 the informant in examination-in-chief has almost narrated the statement made in the fardbeyan with slight improvement regarding explosion of bomb and during way assault by means of pistol etc. Nowhere he said that the villagers went to the house of either of the three named accused persons and in second attempt one Kolha Mian escaped from their custody and the appellant was apprehended from the house of another. Rather according to P.W.2 appellant was apprehended from the way itself. Now, in cross examination this informant admits that it was a dark night when occurrence took place, though he asserts that light was there in his shop but in absence of examination of Investigating Officer or any supporting material, his version also becomes doubtful.