Cr. A. (S.J.) No. 432 of 2003 (Against the judgment of conviction dated 29.01.2003 and order of sentence dated 30.01.2003 delivered by Sri Anil Kumar, the learned Additional Sessions Judge, Fast Track Court No.7, Hazaribagh, in S.T. No. 372 of 1989) ------ Manaur Azad, son of Md. Halim, resident of village N. T.S. Barkakana, Police Station Patratu, District Hazaribagh (JKharkhand) …… Appellant Versus The State of Jharkhand …… Respondent ----- PRESENT HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellant : Mr. Arjun Narayan Deo For the State : Mr. Arun Kr. Pandey, A.P.P. -------- CAV on:
29. 04.2016 Pronounced on: NOVEMBER, 2016 This Criminal Appeal has been preferred against the judgment of conviction dated 29.01.2003 and order of sentence dated 30.01.2003 passed by learned Additional Sessions Judge, F.T.C, No. 7, Hazaribagh in connection with Sessions Trial Case No. 372 of 1989 corresponding to G.R. No. 501 of 1989 arising out of Patratu P.S. No. 73 of 1989, whereby the appellant was convicted for the offences under Sections 395 and 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of 7 years for both the offences, both sentences running concurrently.
2. Case of the prosecution as derived from the information given by the Santosh Kumar Rajput P.W. 7, before Sri R. S. Singh Officer-in-charge Barkakana O.P. on 10.03.1989 at 7.30 hours in his residence stating therein that he is posted as Engineer in Central Workshop of Barkakana C.C.L.. At around 7.30 in the evening on 10.03.1989 he was watching T.V. in drawing room along with his family members. His wife and daughter remained in drawing room when he went to another room inside for study. The main gate was closed but not locked. At around 7 0’ clock suddenly his -2- wife shouted on which the informant entered into the drawing room and saw three persons assaulting his wife and one of the accused has snatched the Mangal Sutra made up of gold. Two out of the three persons were having country made pistol. Seeing the situation the informant tried to catch hold of them and he also shouted on which the three persons came out from the room and he followed them continuing to shout. The informant came out from the house and he saw two more persons standing outside the house and when the informant raised alarm all the miscreants started to flee away towards the east south direction. On hearing the alarm made by the informant, the neighbours namely, Noor Mohammad, Surya Prasad Karn, Manoj Kumar Singh and others came there and they also started chasing them. They caught hold of two of the miscreants, one of who disclosed his name as Bajrangi Mishra and Mangal Sutra was recovered from the left pocket of his pant and two cartridges from the right pocket.
3. The second miscreant disclosed his name as Manaur Azad whose father is an employee of Central Workshop of Barkakana C.C.L. and one pistol and two cartridges were also recovered from his possession. The two miscreants have confessed their guilt and in presence of Senior Security Officer C.C.L. Barkakana, Ramanand Kumar, Deputy Chief Material Manager Sri P. Singh, Sri A.P. Singh, Senior Executive Engineer, Sri Baban Singh Security Guard, Sri Manoj Kumar Singh, Store Keeper, Sri Surya Prasad Karn, Store Keeper, Sri S. N. Shukla, Executive Engineer, Noor Mohammad Driver, the two miscreants confessed their guilt and disclosed the name of other three accused- persons as Krishna Singh, Albert Chand Kalu and Nausad Mian who fled away. The accused/ dacoits have assaulted the wife of the informant due to which one tooth was broken and she also received injury on her head.
4. On the basis of the aforesaid fard-bayan of Santosh Kumar Rajput, P.W. 7 Patratu (Barkakana) P.S. Case No. 73 of 1989 dated 11.03.1989 was registered against the accused persons for the offence under Sections 395, 397 and 412 of the Indian Penal Code and Section 25(1) B, 26 of the -3- Arms Act, and after completion of the investigation the I.O. submitted the charge sheet against the accused persons. The learned C.J.M. Hazaribagh took cognizance of the offence and the case was committed to the court of Sessions and registered as S.T. No. 372/89.
5. Charges were framed against the five accused persons for the offence under Sections 395, 397 of the Indian Penal Code and for the offence Under Section 412 of the Indian Penal Code against the two accused persons Bajrangi Mishra and Manaur Azad to which they pleaded not guilty and claimed to be tried.
6. The prosecution has altogether examined nine witnesses in this case to prove the charges leveled against the accused persons. The learned Additional Sessions Judge, F.T.C., Hazaribagh at the conclusion of the trial and the material available on record has held the accused Manaur Azad guilty for the offences under Sections 395, 397 of I.P.C. and sentenced him to rigorous imprisonment for 7 years to run concurrently for both offences. The offence of Section 412 I.P.C. was not made out against him. The accused Krishna Singh and Albert Chand Kalu were found not guilty, for the offences under Sections 395 and 397 of I.P.C. and discharged from liabilities of bail bonds.
7. P.W. 7, Santosh Kumar Rajput, who is the informant has supported his fardbeyan and further stated that when police came then the two accused who were caught were arrested by the police, and after making seizure list of four bullets, country pistol and Mangal Sutra took the seized item with them. He has proved the seizure list, recognized his signature on the seizure list which has been marked as Exhibit-1. He has also proved fardbeyan and his signature on the fardbeyan which has been marked as Exhibit-2. He said that his wife’s Mangal Sutra was received after the order of C.J.M. In his cross- examination, he has said that he does not know which trade union the accused person’s father is a member of, however, the complaints of trade union is dealt with by the Personnel Department and he is of the -4- Engineering side and till today father of accused has not complained against him.
8. P.W.1, Punam Singh is injured eye witness and she is the wife of informant. In her witness, she has supported the case of prosecution. She has stated that two persons had entered and one of them had pistol, after that another person who also had a pistol entered and asked her for jewellery and money and threatened her. Then on making an alarming shout, the accused hit her by the butt of the pistol on her head and mouth due to which, blood oozed out and teeth were broken. Another accused snatched Mangal Sutra from her neck. In the Court she has recognized the appellant Manaur Azad. In her cross - examination, she has stated that there was electrical light at that time. She has also said that when Manaur Azad was caught and brought before her, she recognized him but it was only after the incident. Her residence is 200 yards from the Thana.
9. PW2Ramanand Kumar has said that the incident is of 10.03.1989 at around 7.00 p.m., and he was in his quarter just then some screaming was heard from Mr. Rajput’s house, and he along with his neighbours G. Singh and his Guard Baban Singh went to Mr. Rajput’s quarter. On reaching there, he saw Mr. Rajput and Engineer – S. N. Shukla were holding one accused and Manoj Kumar Singh and Mr. S. P. Karn were holding another accused. The person who was held by Mr. Rajput and Mr. Shukla, on asking revealed his name as Bajrangi Mishra, while the person held by Manoj Kumar Singh and S. P. Karn disclosed his name as Manaur Azad. On searching their bodies, from Bajrangi Mishra, Mrs. Rajput’s golden necklace and two bullets and from Manaur Azad one country made pistol and two bullets were recovered. On arrival, the Police prepared seizure list and he signed on it. He has recognized the seizure list in court.
10. PW3 Suraj Deo Prasad Karn has deposed that on 11.03.1989 at 7.00 P.M. he was sitting in his quarter when he heard the alarm “dacoity” coming from the house of Mr. Rajput. He reached the place of occurrence. Along with him was Mr. Manoj Singh, Mr. S. N. Shukla and other persons. -5- 11. They apprehended the escaping dacoities. He caught hold of Manaur Azad and Mr.- Shukla and others caught hold of Bajrangi Mishra. On searching Bajrangi Mishra the golden necklace of Mrs. Rajput was recovered. And on searching Manaur Azad two bullets and one country pistol was found. Both the accused disclosed the names of their escaped friends as Krishna Singh, Naushad Alam and Albert Chand Kulu. He has said that he can recognize the accused if shown to him, four accused are represented.
12. PW4Sadanand Shukla has deposed that when he had gone to the quarter of Mr. Rajput then P. Singh, A.P. Singh and R.N. Kumar (Security Officer) and other persons from the colony were already there and holding one of the accused and on enquiring from him it became apparent he is the son of Halim who is staff member in C.C.L. . He has further deposed that from the apprehended person one golden necklace was recovered.
13. PW5Manoj Kumar Singh has deposed that when he heard alarm from the house of the informant and proceeded towards there then he saw one person fleeing away from there. They followed the said person and caught hold of him who disclosed his name as Bajrangi Mishra, Mr. Rajput and Mr. Shukla had caught another person who disclosed his name as Manaur Azad. On searching Bajrangi Mishra one golden necklace belonging to the wife of Mr. Rajput and one bullet was recovered and on searching Manaur Azad two bullets and other Items were recovered.
14. PW6 Noor Md. has also stated that on hearing alarming shout from the house of Mr. Rajput, the informant, they then along with others and Surya Deo Singh caught hold one of the miscreants who disclosed his name as Bajrangi. This witness has been declared hostile by the prosecution.
15. PW9 Ram Sagar Singh, Sub- Inspector of Police has deposed that on 10.03.1989 on getting alarm, he came to the quarter of Santosh Kumar Rajput and found there two apprehended miscreants. He recorded Mr. Rajput’s fardbeyan. He has further deposed that the recovered golden necklace, bullets and small pistol were presented to them and after making -6- seizure list of these items in front of independent witnesses took charge of them. He further deposed that he sent the accused and Punam Singh for treatment for injuries Bajrangi Mishra disclosed the names of the escaped accused as Krishna Singh, Naushad Mian and Albert Chand Kalu. He further deposed that the place of occurrence has been examined by him and he has stated that the recovered pistol and cartridges were lawfully examined and he obtained the examination report from the Surgeant Major, Hazaribagh and identified the signature of Sergeant Major Sri A.R. Rastogi, which has been marked as Exhibit 5.
16. The learned counsel for the sole appellant while referring to the deposition of P.W.1 has argued that as per para 13 to the deposition, the accused was arrested by the public not by the witnesses. Moreover, it is not stated who arrested and they are not named. It was only said in para 13 that the two persons from nearby were apprehended but they are not named therefore, he has argued that apprehension was not proper because known persons are required to be mentioned for catching or arresting the accused.
17. Learned counsel has further submitted that regarding P.W. 7 Santosh Kumar Rajput, with reference to deposition in paragraph 5 and 6, it has been said that Surya Deo Karn (P.W.3) and Manoj Kumar Singh (P.W.5) apprehended one person, while S.N. Shukla and himself and others apprehended another person. However, he says that P.W.3 and P.W.5 only apprehended one person.
18. Learned counsel for the appellant further said that according to P.W. 3, Suraj Deo Prasad Karn, has also said that he reached at place of occurrence with few others and also saw the accused snatching the jewellery and he caught one of the accused namely, Manaur Azad -the sole appellant. The learned counsel for the appellant has also said the P.W.4- Sadanand Shukla has stated that he saw one person, who was apprehended, who was the boy of Halim. In his cross-examination he has stated that he reached at the house of Rajput Saheb after the incident. -7- 19. The learned counsel for the appellant further submitted that as per the deposition of P.W.3 and P.W. 4 only one person is being mentioned as being apprehended, which makes the prosecution story doubtful, moreover, Manaur Azad was also from the same colony. So he was familiar person. Since his father was the member of trade union there may be differences or disputes with his father. He has also referred to deposition of P.W. 6- Noor Mohammad where in paragraph 2 of the deposition he said that one running person was finally apprehended. He has also read out the deposition of P.W. 9, Ram Sagar Singh, Officer-in-Charge and the I.O. of the case.
20. Learned counsel, apart from the aforementioned arguments, summarized his arguments in the following points:- Firstly, he has said that the time of occurrence is 10.03.1989 at around 7.30 P.M., and on the other hand F.I.R. is of 11.03.1989 and forwarding of the accused was on 13.03.1989, and there is no considerable explanation of such delay. Secondly, he has said that I. O. should have placed accused in T.I. Parade, but no T.I. Parade was conducted. Thirdly, the claim of apprehension are doubtful. Since the appellant lived in the same colony, he would definitely have masked or covered his face to conceal his identity. It would be most wise for him to do so. Fourthly, he says that five persons alleged to have taken place in the incident but only three persons were put to trial and on two persons there was no offence hence, they were acquitted and their participation in the said crime not believed upon. Therefore, the participation of the sole appellant is also doubtful and a false accusation. Fifthly, he has said that there is no material exhibits produced in or before the Court. So the case cannot be proved against the sole appellant. -8- Sixthly, there is no ballistic record produced or exhibited in court, so again no case can be made out of guns used or assault made on the wife of the informant. Seventh, he says definition of dacoity under Section 391 of I.P.C. reads as under:
“391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. The learned counsel for the appellant also said that as under Section 391 dacoity involves five persons but because two persons were apprehended, so no case of dacoity can be made out against the sole appellant.
21. The learned APP has said that in this case definitely the sole appellant is found guilty of dacoity. It is only that two persons were initially apprehended, however charges were framed against 5 persons, of which 2 absconded, so rightly proceedings were held against the accused three remaining persons in which the current appellant was held guilty. The I.O. saw apprehended and looted articles. He says that delay in forwarding the appellant does not matter significantly. Regarding T.I. Parade he has said that it is not necessary because he was apprehended and arrested on the place of occurrence. Also he was recognized by many persons who lived in the same colony. For these reasons appellant is guilty and deserves to be sentenced accordingly. FINDINGS:- 22. After having heard the arguments of counsels, having gone through the records and evidences, it is necessary to answer the question raised by appellant’s counsel or appellant that since, only two persons were apprehended and only one ultimately convicted, that -9- the offences of Sections 395 and 397 are not made out. This argument will not succeed because the fardbeyan has recorded the participation of five persons, and charges were framed against five persons, so bringing the offences within the ambit of the definition of Section 391. Also it has came in the evidence of P.W.9, Ram Sagar Singh, that Bajrangi Mishra, one of those initially apprehended had disclosed the names of the 3 other escaped persons. So on the question of the applicability of Sections 395 and 397 I.P.C., the offences can be made out.
23. During the course of his argument counsel for the appellant has also raised doubts about as to who was apprehended, or how many were apprehended and cast doubts as to whether a genuine person was apprehended. He has sought to say that the father of this appellant is a trade unionist and being a person from a family that resides in the same colony may have resulted in his apprehension. This line of reasoning is not very reliable because the incident and the apprehension occurred immediately, and the apprehending was done by persons from the colony who reached there on alarm being made. Moreover, P.W. 7, Santosh Kumar Rajput, the informant and his wife, P.W. 1, injured, and who are both witnesses to the event have not denied their participation in the crime. So the evidence of P.W.7 and P.W.1 who are direct witnesses to the occurrence cannot be denied.
24. Then we have the evidence of persons who apprehended the two accused, including this appellant, just outside the house or in the colony itself. P.W.2, Ramanand Kumar, P.W.3, Suraj Deo Prasad Karn, P.W.4, Sadanand Shukla and P.W. 5, Manoj Kumar Singh who all arrived on the scene on alarm, have either apprehended or assisted in apprehending along with others, the two accused including the appellant. It is unbelievable that these persons would go out of their way to apprehended wrong persons. So the evidence of P.W.7 and P.W. 1 are corroborated by P.W.3, P.W.4, and P.W.5. Even P.W.9, Ram Sagar Singh, Sub- Inspector of Police has deposed that on reaching the place of occurrence he found two apprehended miscreants. Regarding the issue of T.I.P., since the persons were -10- apprehended on the spot, including this appellant, there is no need for T.I.P. The issue of delay in lodging F.I.R. is not so delayed as to obliterate the case. It could have been done earlier, but the delay is not so delayed, to cast serious doubts in the case. Occurrence is of 10.03.1989, and F.I.R. is of 11.03.1989. Given, the evidences of the eye witnesses and other witnesses, delay is not important.
25. Regarding the non- production of certain exhibits in court and no ballistic report being produced, there are no doubts, fault on the part of prosecution, I am not able to substract from the credibility of the eye witness P.W.1 and P.W. 7 and other apprehending witnesses. Therefore, based on the aforesaid reasonings, the conviction dated 29.01.2003 and sentence dated 30.01.2003 of the appellant under Sections 395 and 397 of the I.P.C. and the imposed concurrent sentence of 7 years is upheld. Period already undergone if any shall be set off and he shall serve the remaining sentence.
26. Appellant is on bail, his bail bond is cancelled. The convicting or successor court will take appropriate steps to procure his arrest.
27. Appeal is accordingly dismissed. (RATNAKER BHENGRA, J) JHARKHNAD HIGH COURT DATED: NOVEMBER, 2016 J.