KAMRUDDIN ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 14.8.91 passed by the Sessions Judge, Nawadah, in Sessions trial no. 97/90. The two appellants were convicted under section 395 IPC and they were sentenced to undergo Rl for 8 years.

(2.) THE prosecution case originated on the fard beyan of Nageshwar Modi, wherein he alleged that on 17.10.89 he had left his village at 6 a.m. in the company of Suchit Modi, Govind Modi in the tractor no. MRS 2970. The informant was going to Kawakole to fetch rice, wheat and sweet potatoes also. At about 10 a.m. when the informant reached Jogia Asthan west of Kawakole, his tractor was surrounded by 8 to 10 persons who came out from the adjoining bushes. The marauders were armed with pistols, lathis, daggers etc. Pistol wielding culprits asked the occupants of the tractor not to raise alarm otherwise they would be killed. The tractor driver stopped the tractor out of fear and then one of the culprits entered into the tractor. One of the dacoits took out Rs. 4300/ - from the pocket of the informant. Another dacoit relieved Suchit Modi of Rs. 2205/ -, Govind Modi was also relieved of his belongings. The other dacoits had kept the tractor occupants under seize. In the meantime, two passersby came to the place of the occurrence on cycles who were also relieved of their belongings including their cycles. The dacoits thereafter fled towards the village Badildih. The tractor driver, namely, Md. Hakim, identified Akbar Mian and Kamruddin Ansari @ Thakra and Murshid Alam among the dacoits. The dacoits had in their possession cycles including looted cycles on which they fled away. The informant chased the dacoits to some distance raising alarm throughout. Then the villagers from Mahalia Tanr, Badildih also chased the dacoits. Two of the dacoits (appellants) were arrested by the villagers and from the possession of Kamruddin an amount of Rs. 656/ - was recovered and from the possession of Murshid looted cycle no. R. 878804 was recovered.

(3.) THE prosecution examined in all 9 witnesses and brought on record the fardbeyan (exhibit 3), production list (exhibit 1), formal FIR (exhibit 5) to prove its case. PW 9 was the l.O. of the case. The evidence of this witness is significant in so far as he states that the recovered cycles and the cash were put in a sealed cover and consigned to Thana Malkhana; but PW6 who was examined in court and who produced the recovered cash after bringing the same from Thana Malkhana, did not produce it in a sealed cover. He in crossexamination by the accused said that notes which he were producing in court were not sealed nor there was any signature of any officer on the same. He further stated that cycles and the cash were not kept in court Malkhana. In chief, he said that he brought those articles from Kawakole police station. PW7 Brahmdeo identified his cycle in court which was exhibited as material exhibit. In this connection, the evidence of PW4, informant, himself is relevant and at para -7 he has said that cycle was given to its owner on Jimenama. In such circumstance, it is not understandable how the aforesaid cycle was brought from Thana Malkhana. So, it appears that the concerned cycle was produced in court from the custody of Brahmdeo himself who was examined in the court on 2.2.91. On the same day, PW6 was also examined. So seizure of the concerned cycle as also Rs. 656/ - from the possession of any of the appellant becomes suspect in view of the fact that the seizing authority...........police officer concerned............neither followed the settled norms regarding the seizure the production, nor he put the seized articles under sealed cover after affixing his signature on the same and after obtaining signature of those persons by whom, these articles were seized or produced. Besides. the aforesaid circumstances on record, the evidence of PWs 1, 2, 3, 4, 5, 7 as also PW8 had to be examined to find out whether there was an occurrence as alleged by the informant in the fardbeyan and whether the two appellants had participated in the alleged occurrence.