SERAJ MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Since all the three appeals arise out of same judgment dated 18.7.2001 and order dated 25.7.2001 passed by 3rd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 192/99 (Tr. No. 8/99) convicting and sentencing Seraj Mian (appellant in Cr. Appeal No. 438/ 2001), Manoj Paswan (appellant in Cr. Appeal No. 445/2001) and Bishesh Paswan (appellant in Cr. Appeal No. 497/2001) to undergo life imprisonment u/s 396 of the Indian Penal Code (for short, IPC) and R.1. for 10 years each u/s 412 IPC but ordering both the sentences to run concurrently, have been heard together and are being disposed of by this common judgment. The case of prosecution, in short, is that on 9.11.97 at about 9 PM Fardbeyan of informant Kishore Kumar Sharma (PW 1) was recorded by SI H.P. Singh (not examined) at Sadar Hospital, Munger where informant stated that on the same day he alongwith his elder brother Braj Kishore Sharma (deceased), 'Bhabhi' Kumkum Sharma (PW. 9) and two nieces Sneha Sharma (PW 8) and Dipali aged about 4 years (not examined) left their house for going to Bariarpur and came to Tarapur by Auto-rickshaw and from there to Sultanganj by bus. Since there was no bus service for going to Bariarpur from Sultanganj, they all waited at Suitanganj for train and when Jamalpur Sultanganj Shramik Train reached at 6 PM they all boarded the train which left Sultanganj Station at about 6.30 PM. The train in the way stopped at Masdi, Kamarganj and Gangania and when left Gangania Station at about 7 PM, four miscreants hurriedly boarded the compartmerit in which informant was travelling and started looting the articles of passengers. They all were carrying country made pistols and torches. Snatching the articles of passengers all the miscreants came to informant and his family members. Informant handed over his wrist watch and cash to the miscreants and when the miscreants went near the brother of informant who stood up and flashed torch light on their faces and did not want to handover his suitcase but miscreants took possession of the suitcase and they fired on the chest of brother of informant who after receiving firearm injuries fell down near the window. By that time, the train had already proceeded about 200 yards from Gangania Railway Station and miscreants fled away by jumping from the running train. The miscreants were also flashing their torch lights. The miscreants took away two VIP suitcases containing wearing clothes of informant and his brother and 'Bhabhi', a golden ring of his Bhabhi' etc. and they also snatched wrist watches of informant, his brother and his 'Bhabhi' all worth about Rs. 7000/-. The informant alongwith his injured brother came to Bariarpur Station from where he informed his relations and took his brother to a doctor who after giving first aid to his brother advised the informant to take his brother to Sadar Hospital, Munger. When informant alongwith his relations took his brother to Sadar Hospital, Munger, doctor after examining declared him dead. The informant further stated that his deceased brother was posted as Major in 99 APO, Misamari, Assam, 168 Field Regiment. Informant also claimed to identify the miscreants on seeing them again. On the basis of Fardbeyan a case under sections 394 / 302 IPC was registered and police took up investigation. During the investigation some articles are said to have been recovered from the possession of appellants which were identified in T.I. Parade as the articles looted in commission of offence. After investigation police submitted charge-sheet under sections 396 and 412 IPC against the appellants. Cognizance of the case was taken and case was committed to the court of session where charges under sections 396 / 412 IPC were framed against the appellants who denied the charges and were put on trial. After trial appellants were held guilty under sections 396 and 412 IPC and were convicted and sentenced to undergo life imprisonment u/s 396 IPC and R.1. for 10 years each u/s 412 IPC as indicated above.

(2.) The case of defence as it appears from the trend of cross-examination of prosecution witnesses is complete denial of their participation in the offence and their false implication. Six witnesses on behalf of appellants have been examined.

(3.) In order to prove its case the prosecution has examined 13 witnesses. Kishore Kumar Sharma (PW 1) is the informant. Suresh Mandal (PW 2) and Vijay Yadav (PW 10) are said to be passengers travelling in the same train at the time of occurrence. Ganga Mandal (PW 3) and Sunil Kumar Modi (PW 4) are said to be witnesses in whose presence some looted articles were recovered from the house of appellant Seraj Mian. They both have denied recovery of any article in their presence and have been declared hostile. However, Ganga Mandal (PW 3) has proved his signature on Seizurelist (Ext. 3) but has said that he put his signature under the pressure of police. Surendra Kumar Pandey (PW-5) is the Judicial Magistrate who on 26.11.97 had conducted T.I. Parade of appellants Manoj Paswan and Bishesh Paswan. Nagendra Kumar (PW 6) who was posted as Railway Judicial Magistrate had held T.I. Parade of some articles recovered during investigation. Dr. Prabhat Kumar Sinha (PW 7) is the doctor who held post mortem examination on the dead body of deceased Braj Kishore Sharma. Sneha (PW 8) and Kumkum Sharma (PW 9) are daughter and wife of deceased and are said to be eye witnesses to the occurrence. Ashok Kumar (Pw 11) is the I.O. in this case. Bishwanath Choudhary (PW 12) and Sadhu Singh (PW 13) are said to be witnesses in whose presence, on search of appellants Manoj Paswan and Bishesh Paswan some looted articles were recovered from their possession.