ASHRAFUL SEIKH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction dated 18-1-1991 and sentence dated 21-1-1991 passed by Sri Sheo Dayal Prasad, learned Additional Sessions Judge, Pakur whereby and whereunder appellant No. 1 has been convicted under Section 412 IPC and sentenced to undergo R. I. for 10 years. Appellant No.2 has been convicted under Section 395 IPC and sentenced to undergo R. I. for 10 years.

(2.) The case of the prosecution arises out of the fardbeyan (Ext. 2) of the informant ChhutarTadu of village Sundara Pahari, PS- Pakur recorded on 1-11-1987 at 10.00a.m. by S. I. Nawal Kishore Mishra (not examined) regarding the occurrence which took place at 3.00 a.m. night on the same day on 1-1-1987 when informant Chhutar Tadu was sleeping along with other members of the family in his house. At about 3.00 a.m. night, someone knocked the western door of his house. When he woke up, he found six persons in his house. Two of them caught hold of him and tied his hand. Inside the house, his wife, sons Madan Tudu (P.W.3), Shiva Tudu (PW5) and Sarkar Tudu were sleeping. When the dacoits searched them, then they, after five minutes, fled away from the house. The dacoits looted 8 Kansa Thali, 3 big Bari, one Lota, 3 small Bati, one Tape, one radio Santosh, silver Hairpin 1 Bhar and cash Rs.600/-. The looted articles altogether valued Rs.2700/-. After committing dacoity, they fled away. On alarm the villagers assembled and chased them. After chasing one and half k.m., the villagers apprehended two dacoits who disclosed their names as Wahab Seikh (appellant No.2) and Ratan Choudhary. They confessed before the villagers regarding commission of dacoity in the house of one Dipty Tudu (PW1) and the informant Chhutar Tudu (PW.4). They had also looted 7 Kansa Tahli, 4 big Bati, 5 small Bati, one Lota, 2 Radios, silver Hasulit Bhari, silver bangles 5 bhars, 2 Dhoti, 3 new Pagri, 2 Torches (one of 3-cell Jeep and another 2- cell Everyday) from the house of Dipty Tudu (PW. 1). The looted articles were valued Rs.2800/-. From the possession of Wahab Seikh (appellant) and Ratan Choudhary, one 3 cell jeep torch, 2 new Dhotis and 3 new Pagris were recovered. They also disclosed the names of their other associates as Khalid Seikh, Yusuf Seikh, Mallick Seikh, Daku @ Samshul, Habul Seikha, Kamu Seikh, Lakara Seikh and Samad Seikh. On the basis of fardbeyan, formal FIR (Ext. 1) was drawn and charge-sheet was submitted against Wahab Seikh, Ratan Choudhary, Ashraful Seikh and Yusuf Seikh under Sections 395/412 IPC Yusuf Seikh, Wahab Seikh (appellant) and Ratan Choudhary were charged under Section 395 IPC and Ashraful Seikh (appellant) was charged under Section 412 IPC. 2A. The prosecution examined 10 witnesses in order to bring home the charges levelled against the accused persons. PW. 1 Dipty Tudu and PW. 4 Chhutar Tudu have deposed that in their houses, dacoity was committed and appellant Yusuf Seikh was apprehended on chase by the villagers, whereas from the possession of appellant Ashraful Seikh, stolen Kansa, wrist-watch silver Hasuli (Ext. 3/1) were recovered on raid by the I. O. and the articles were identified in the T. I. parade by the informant. PW.2 Som Tudu has deposed that appellant Wahab and Yusuf were caught by the villagers. PW.5 Shiva Tudu and PW 6 Gora Tudu are tendered witnesses. PW. 7 Jalal Seikh Is a hostile witness, PW. 8 Dina Nath Ram is the second I. O. who submitted charge- sheet, PW. 9 Jagdish Pd. Mishra is the Magistrate who conducted the T. I. Parade and submitted T. I. P. Chart (Ext.4) in his pen and signature and deposed that the witnesses PW. 1 and PW. 4 identified Yusuf Seikh. PW. 10 Raghunath Mandal is the witness of T. I. P. chart of the recovered articles (Exts. 5 and 5/1) which were recovered from the house of appellant Yusuf Seikh. The learned Additional Sessions Judge, Pakur relied the evidence of PW. 1, PW.2 and PW. 4 and held that appellant Wahab Seikh after commission of dacoity, was chased and caught and identified in the T. I. Parade, hence he convicted him under Section 395 IPC, whereas looted utensils, wrist-watch and silver hairpin were recovered on raid from the house and possession of appellant Ashraful Seikh which were identified by PW. 1 and PW. 4, convicted under Section 412 IPC and sentenced each of them to undergo R. I. for 10 years.

(3.) Assailing the order of conviction and sentence passed against both the appellants, the learned counsel appearing on their behalf has submitted that there is major discrepancy in the evidence of PW. 1, PW.2, and PW.4 regarding factum of dacoity, identification of the dacoits and recovery of the articles. There is no evidence regarding participation of appellant Wahab Seikh in commission of the dacoity. PW. 4 informant has very specifically deposed in para 3 that nothing was recovered from the possession of appellant Wahab Seikh and another co-accused Ratan Choudhary, who were caught by the villagers just after commission of dacoity on chase. He has further deposed that the seized articles, which were identified in the T. I. Parade, were not produced in course of evidence in the Court as material exhibits. PW. 8 Dina Nath Ram, I. O. has deposed that accused Yusuf Seikh, who is alleged to have been caught by the villagers including PW. 1, PW.2, PW.4, was in jail custody prior to the date of alleged occurrence who was remanded in this case which totally falsifies the evidence of the prosecution witnesses that they apprehended him along with Ratan Choudhary on chase after dacoity. There is not a single independent village witness to corroborate the evidence of PW.l, PW. 2 and PW. 4. The articles, alleged to have been looted, do not resemble with the articles recovered from the house of appellant Ashraful Seikh, which are alleged to have been identified in the T. I. Parade. Even then, the identified article in T. I. Parade were not produced in the Court in course of trial to mark as material exhibits. Considering these facts, the other co-accused Ratan Choudhary and Yusuf Seikh have been acquitted on the similar set of evidence by the learned Court below. On these grounds, these two appellants also deserve acquittal giving benefit of doubt to them,