ISHWAR NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) APPELLANTS suffered conviction under section 395 of the Indian Penal Code (IPC) for which they were sentenced to suffer rigorous imprisonment for a term of ten years each. It seems from the proceeding of the Court below that Kapileshwar Prasad alias Kapil Paswan did not appear in person in the Court below when he was convicted and sentenced. However, subsequently, after he surrendered in the court, he was remanded to jail to serve out the sentence awarded to him.

(2.) THOUGH salient features of the prosecution case have been fairly spelt out in the judgment of the Court below, a brief resume of them can be noticed at the threshold. Allegedly at dead of night, in the intervening nights of 13/14th May, 1984, unidentified miscreants having gained their access in the inner apartment of house of Ram Lachhan Mahto, Mahavir Mahto and Nathuni Mahto, coercing house inmates, removed house belongings which include ornaments, wearing apparels, cash etc., and while retreating also resorted to firing. It was Ram Tapeshwar Paswan (P.W.1) who rushed to the Police Station where his statement was recorded by a Police Officer which happens to be first information report of the case. As usual, investigation followed, in course of which, Investigation Officer recorded statement of witnesses under section 161 of the Code of Criminal Procedure, took steps for apprehension of the miscreants, arranged test identification parade in Sitamarhi Jail of the suspect Ishwar Narayan Singh, effected seizure of some incriminating objects at the place of occurrence, and on conclusion of investigation, laid chargesheet before the Court. At trial the State examined 14 witnesses who happens to be family members of the victims, Ram Tapeshwar Paswan who was first informant and also some of the family members of his house, who were tendered at trial. Defence of the appellants, both before the Court below and this Court, has been that of innocence and false implication for no good reasons. As for Ishwar Narain Singh there has been explicit defence of the appellant that as he impounded cattle of Panchan Mahto and Ram Vinay Mahto, for that animosity, he was falsely dragged in the case, and common defence of the appellants was that since Village Sinhariya was adjacent to Phulwaria, which situates hardly at a distance of 1/2 Kms from each other, appellants were quite known to the villages of village Phulwaria, and in that backdrop, identification of Ishwar Narain Singh at the test identification parade was bereft of legal value. Defence had also chosen to examine three witnesses and while Hardeo Mishra (D.W.1) brought on the record, two receipts, ostensibly to testify seizure of two heads of cattle of Pancham Mahto and Binay Mahto by Ishwar Narain Singh for which Ram Briksh Roy (D.W.2) was put in the witness box only to say that both the villages are adjacent to each other intervened by a river and also that the field of Nathuni Mahto and Panchan Mahto was adjacent to the field of Ishwar Narain Singh. Other defence witness happens to be Amiri Lal Roy (P.W. 3), Sarpanch of Puruhiya Harnahiya Gram Panchayat and the witness says that the people of each of the two villages know each other.

(3.) AS has been the testimony of witnesses, dacoity was committed in the houses of Nathuni Mahto (P.W.2), Ram Vinay Mahto (P.W.6) and Ram Ekbal Mahto (P.W. 10) and it is submitted on behalf of the appellants that Ram Vinay Mahto (P.W.6) happens to be son of Nathuni Mahto (P.W.2). Evidences are galore that during commission of dacoity, miscreants having assaulted house inmates removed house belongings and decamped with the booty and while retreating also resorted to firing. Admittedly, Tapeshwar Paswan, Chowkidar of the village and also the first informant, was not a witness about identification of any of the miscreants, as first information report simply states about commission of dacoity in some houses in village Phulwaria in the night of the occurrence. Now I may switch over to the evidence of witnesses about identification of the appellants. Admittedly, there has been no evidence about recovery of booty from possession of the appellant and without burdening my judgment with reproduction of evidence of with nesses which have been fairly spelt out in the judgment of the Court below, I may reiterate that there has been identification of Kapileshwar alias Kapil Paswan by Nathuni Mahto (P.W.2), Ram Vinay Mahto (P.W. 6), Panchan Mahto (P.W.7), and Ram Ekbal Mahto (P.W. 10). As for Nathuni Mahto (P.W. 8), he claimed to have idenfitied Kapileshwar Paswan alias Kapil Paswan in the lantern and flash of torch light held by the miscreants. Ram Vinay Mahto (P. W. 6) claimed to have identified miscreants in the flash of torch light and also moon light. Panchan Mahto (P.W. 7) too claimed identification of Kapil Paswan in flash of torch light as well as moon light. Ram Ekbal Mahto (P.W. 10) too had torch with him.