ISRAIL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 26.5.1987 passed by 7th Additional Sessions Judge, Pumea, in Sessions Trial No. 215/84 convicting and sentencing the appellants to undergo imprisonment for life under Section 396 of the Indian Penal Code (in short, IPC).

(2.) THE case of prosecution as disclosed in the written report (Ext. 2) of informant Ayub Hassan (PW-10) is that in the night of 1.3.1982 informantwas at his 'Darwaja' when at about mid night some persons came to his 'Darwaja' and tied his father Tamizuddin and set him on fire. THE informant identified all the appellants and Aminuddin and Sadique amongst those persons who were armed with weapons and were saying that they would kill his father. THEy also after breaking the door of the house of informant entered the house and assaulted the informant with 'lathi' but the informant anyhow managed to escape from there. THE appellants and their companions entered the room of Md. Yakub (PW-7), brother of informant, who at that time was sleeping in the room and assaulted him also. On 'hulla' villagers namely, TahirHussain (PW-4). Majebul (not examined), Khasebul (not examined), Samiruddin (not examined) and Khalibur Rahman (PW-9) and others came to the house of informant to whom the informant told about the occurrence. THE appellants and their companions while leaving the place of occurrence took away the wrist watches of the informant and his brother and they also took away articles of the house of informant. About the genesis of occurrence informant in his written report has stated that there was previous enmity between him and appellants who had given threatening to him, his father and his brother. THE female members of the house of informant extinguished the fire but father of informant had received burn injuries and he was brought to Bahadurganj Hospital. On the basis of written report of informant a case under Sections 438 and 380 IPC was registered against the appellants along with Aminuddin and Sadique. Later on, father of informant succumbed to burn injuries and FIR was amended under Section 396 IPC. After investigation police submitted charge-sheet against the appellants and co-accused Aminuddin and Sadique showing co-accused Aminuddin and Sadique as well as appellant Israil as absconders. Other two persons namely, Sheikh Latif and Sheikh Sohrab who were arrested during the investigation of the case were shown as not sent up. Later on, appellant Israil and co-accused Sadique were arrested and remanded in this case and thereafter separating the case of co-accused Amuniddin the case of all the three appellants and co-accused Sadique was committed to the Court of Session. Charges under Sections 396 and 302/34 IPC were framed against all the three appellants and co-accused Sadique who was granted bail during the pendency of the trial but jumped the bail and he was declared absconder and trial against all the three appellants proceeded who after trial were found guilty under Section 396 IPC and were accordingly convicted and sentenced to undergo imprisonment for life as indicated above. THE case of appellants as it appears from the trend of cross-examination under Section 313 of the Code of Criminal Procedure is that the informant runs a shop and on account of purchase of some articles by appellants some dispute had arisen and on account of that dispute they have been falsely implicated in this case.

(3.) SABIR Alam (PW-6), Md. Yakub Hussain (PW-7) and Md. Tazibuddin (PW-8), as stated earlier, are witnesses who are said to be present at the time of occurrence in the house of informant. SABIR Alam (PW-6) has said that at the time of occurrence he along with deceased, Tazibuddin (PW-8) and Zakir Hussain (not examined) was sleeping in the 'Baithka' of the house of informant and in the night somebody hit him with lathi and he awoke and other persons also awoke and he saw that four persons carrying bombs had entered the house and at that time there was no lantern or any other source of light and those persons who had entered the house caught hold of deceased and took him in the courtyard and he and other persons were closed in the room of 'Baithka' and when villagers opened the door the dacoits fled away and informant told them that amongst dacoits he identified appellants along with Aminuddin and Sadique. He has said that dacoits had committed "loot-pat" but he could not identify any of the dacoits. In para 5 of his evidence he has said that he does not recognise any person names of whose the informant had told him. In para 7 of his cross-examination he has clearly said that because of darkness he could not identify any dacoit. Md. Yakub Hussain (PW-7), brother of informant, in his evidence has said that at the time of occurrence he was sleeping in his house which consists of two rooms and he awoke on hearing the sound of knocking of the door and when he opened the door, 4-5 dacoits flashing torches entered his room. According to him, at that time there was no light in the room and because dacoits were flashing torches on his eyes, therefore, he could not identify any dacoit and dacoits after breaking open the boxes kept in the room took away the articles and dacoits confined him in his room by closing the door of his room from outside. He then through staircase which is in his room went to the roof of the house and after jumping from there he ran towards village and raised 'hulla' and again returned to his house when dacoits had fled away. He found his father with burn injuries who was being carried to 'Baithka' and his father was crying with pain. He has also said that informant told him that amongst the dacoits he identified the appellants along with Aminuddin and Sadique. About his father he has said that his father was not naming any miscreant because he was in pain and after some time he became unconscious. He has also not identified the appellants in Court. Md. Tazibuddin (PW-8) has said that he is a neighbour of deceased and at the time of occurrence he was sleeping in the outer house of deceased along with deceased, SABIR Alain (PW-6) and Zakir (nor examined) and at that time there was no light and it was dark and he awoke when somebody hit him and he found 5-6 persons in his house and many persons going in the courtyard of house but he could not identify any one of them. He has further said that the miscreants took the deceased outside after confining him and others inside the house and when the dacoits left the place of occurrence somebody opened the door and thereafter when he went in the courtyard he found burn injuries on the deceased who at that time was unconscious and was saying something. He has also said that informant told him that amongst dacoits he had identified the appellants along with Aminuddin and Sadique. In his cross-examination he has said that on the night of occurrence there was heavy rain and complete darkness and nothing was visible and for this reason he could not count the numbers of miscreant entering the house and he only felt that some persons had entered the house.