Daro Rout @ Prakash Rout and Laxmi Rout and anr. Vs. State of Bihar (Now Jharkhand) - Court Judgment

SooperKanoon Citationsooperkanoon.com/520226
SubjectCriminal
CourtJharkhand High Court
Decided OnNov-28-2005
Case NumberCri. Appeal Nos. 119 and 140 of 1995 P
Judge R.K. Merathia, J.
Reported in2006CriLJ919; [2006(1)JCR105(Jhr)]
ActsIndian Penal Code (IPC), 1860 - Sections 395
AppellantDaro Rout @ Prakash Rout and Laxmi Rout and anr.
RespondentState of Bihar (Now Jharkhand)
Appellant Advocate Jai Prakash Jha, Amicus Curiae
Respondent Advocate T.N. Verma, APP
Cases Referred and Ram Ashrit Ram v. State of Bihar
Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - his bhabhi told him that she also identified appellant daro rout in the light of dhibri who was wearing khakhi police like dress and has covered his face with 'gamchhd. he was identified by his voice by the informant naresh chand sen (pw 17). usha rani sen (pw 11) also identified him cover- ing his face and wearing police like dress.r.k. merathia, j.1. since no body appeared on behalf of the appellants in criminal appeal no. 140 of 1995, mr. j.p. jha, learned senior advocate assisted the court as amicus curiae.2. as both the appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment.3. appellants in both the appeals have been convicted for an offence under section 395 of the indian penal code and have been sentenced to undergo rigorous imprisonment for three years vide judgment of conviction dated 28.6.1995 and order of sentence dated 29.6.1995 passed by 1st additional sessions judge, dumka.4. the prosecution case in short is that the informant naresh chand sen (pw 17) gave his jardbeyan at 4.36 a.m. on 10.11.1993 about the occurrence which took place about five hours earlier in the night between 9/10.11.1993. his version was that at about 11 p.m. in the night, he heard india of chorchor. sajendra mandal son of cheku mandal (pw 10) was raising hulla that thieves have entered into his house. the informant and his brother jar-man sen (pw 13), subhash sen (pw 5), niwash sen, his father and also his uncle narain sen (pw 4), neighbours ismail mian and awadhi sen rushed out of their house and went towards the house of sajendra mandal, when the criminals came towards them with torch and exploded bomb threatening them. they went in their house and started watching the activities of the thieves. after half an hour, five-six persons came near his house pointing out towards the house of the informant and saying about the informant that he might be sleeping in the ground floor of the shop. the informant identified that it was the voice of accused-appellant daro rout of his own village. at the command of darn rout, one of his associates checked the shop of the informant and found it locked. thereupon appellant daru rout asked his associates to find out the informant and on this the informant ran towards neighbouring tola and met the pardhan of the village lakhi ram hansda and told him about the incident. lakhi ram hansda came to the house of the informant with some villagers and said that several other houses have also been looted. when he returned, the informant was told, by his father, brother and bhabhi that about ten-twelve dacoits entered into their house after opening the door and looted cash, utensils and clothes. his bhabhi told him that she also identified appellant daro rout in the light of dhibri who was wearing khakhi police like dress and has covered his face with 'gamchhd. the other dacoits, who were young persons, kept their faces uncovered. the culprits were looking for the informant. the dacoits assaulted some persons and some persons sustained injuries by bomb blast. the informant further alleged that daro rout threatened him with dire consequences when the informant asked for his money and refused to give goods from he shop on credit to daro rout, at the time of 'dushcra'. the informant alleged that daro rout has committed the crime due to the grudge for the said reasons.5. the prosecution examined twenty-four witnesses, out of them, pw 3 dasrath rout. pw 8 suresh rout, pw 12 sobha rani, pw 13 jarman sen, pw 14, pairu mian, pw 18 mariuin bibi and pw 19 sahdeo chandra sen are simply tendered. pw 6, gour mandal said that he knows nothing about the incident of dacoity. pw 7 ramesh rout said that dacoily was committed in several houses but he did not identify any of the dacoits. pw 1 subal mandal. pw 2 ujjwal kumar sen, pw 9 dukhan mandal, pw 10 chheku mandal, pw 15 gayatri devi and pw 16 uma pado sen said that dacoity had been committed in their houses but they did not identify any of the dacoits.pw 5 subhash sen said that he identified accused daro rout by his voice.pw 11 usha rani sen, bhabhi of the informant, identified accused daro rout having taken part in the dacoity. pw 4 narain chandra sen, in whose house also, dacoity was committed, said in his evidence that he inter alia identified accused daro rout, lakshmi rout and wakil rout.6. mr. j.p. jha, learned senior counsel appearing on behalf of the appellant daro rout submitted that the whole case is false. there is no injury report; there was no source of light for identification; it is improbable that the persons known to the informant party will not conceal their identity at the time of committing crime in the night; admittedly appellant daro rout was on the inimical terms with the informant which is the reason for his false implication; identification by voice and identification in the torch light in the hands of the accused persons cannot be relied. he took me to the evidences and other materials on the record. in support of his submissions, he relied on acheey lal sahni v. the state of bihar, 1977 bbcj 84; amirchand ahir v. the state of bihar 1977 bbcj 400; state of orissa v. chandra pentia 1981 cri l.j. 1060: madan prasad singh v. the state of bihar 1984 east cr c 523 (pat) : 1984 bbcj 667 and ram ashrit ram v. state of bihar 1981 bbcj (sc) 57.7. from the materials on record, it is absolutely clear that dacoity was, committed in several houses. now the question is whether the appellants were involved or not.the occurrence took place at about 11 p.m. in the night. the fardbeyan was lodged without any delay i.e. at 4.30 a.m. in which appellant daro rout was named. he was identified by his voice by the informant naresh chand sen (pw 17). usha rani sen (pw 11) also identified him cover- ing his face and wearing police like dress. there are specific overt acts alleged in the fardbeyan against appellant daro rout. pws 5 and 17 also deposed that they identified him by voice. he was also identified in the test identification parade by pw 4 narain sen. daro rout was known to pws 5, 11 and 17. he was searching the informant. thus there are ample evidence of active involvement of daro rout in the dacoity.8. it cannot be accepted that only because there was some dispute between the informant and daro rout, the informant and his family members will engineer his false implication in the fardbeyan lodged without any delay. rather the said dispute can be the motive for the crime.9. so far appellants lakshmi rout and wakil rout are concerned, they have been identified in the test identification parade by pw 4 narain sen, indicating their participation. there is no motive for their false implication. if the persons are known, they can be identified in insufficient light. there must be chaos in the small village when several houses were looted by ten-fifteen dacoils. it is not proper to expect that all the victims will identify the culprits.10. in the facts and circumstances of this case, i do not find any reason to interfere with the order of conviction passed against the appellants.11. mr. jha on the question of sentence submitted that the appellants have suffered this case since 1993 and no useful purpose will be served by sending the appellants to jail to serve out the sentence and that they have no criminal antecedent.12. in the circumstances, i am inclined to modify the sentence to the period already undergone by them in jail and also a fine of rs. 3.000/- each, which if deposited in the trial court within four months from today, they will be discharged from their bail bonds, failing which, they will undergo further imprisonment for one year.13. in the result, both the appeals are dismissed with the modification in the sentence as indicated above.
Judgment:

R.K. Merathia, J.

1. Since no body appeared on behalf of the appellants in Criminal Appeal No. 140 of 1995, Mr. J.P. Jha, learned Senior Advocate assisted the Court as Amicus Curiae.

2. As both the appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment.

3. Appellants in both the appeals have been convicted for an offence under Section 395 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years vide judgment of conviction dated 28.6.1995 and order of sentence dated 29.6.1995 passed by 1st Additional Sessions Judge, Dumka.

4. The prosecution case in short is that the informant Naresh Chand Sen (PW 17) gave his Jardbeyan at 4.36 a.m. on 10.11.1993 about the occurrence which took place about five hours earlier in the night between 9/10.11.1993. His version was that at about 11 p.m. in the night, he heard India of chorchor. Sajendra Mandal son of Cheku Mandal (PW 10) was raising hulla that thieves have entered into his house. The informant and his brother Jar-man Sen (PW 13), Subhash Sen (PW 5), Niwash Sen, his father and also his Uncle Narain Sen (PW 4), neighbours Ismail Mian and Awadhi Sen rushed out of their house and went towards the house of Sajendra Mandal, when the criminals came towards them with torch and exploded bomb threatening them. They went in their house and started watching the activities of the thieves. After half an hour, five-six persons came near his house pointing out towards the house of the informant and saying about the informant that he might be sleeping in the ground floor of the shop. The informant identified that it was the voice of accused-appellant Daro Rout of his own village. At the command of Darn Rout, one of his associates checked the shop of the informant and found it locked. Thereupon appellant Daru Rout asked his associates to find out the informant and on this the informant ran towards neighbouring Tola and met the Pardhan of the village Lakhi Ram Hansda and told him about the incident. Lakhi Ram Hansda came to the house of the informant with some villagers and said that several other houses have also been looted. When he returned, the informant was told, by his father, brother and bhabhi that about ten-twelve dacoits entered into their house after opening the door and looted cash, utensils and clothes. His bhabhi told him that she also identified appellant Daro Rout in the light of Dhibri who was wearing khakhi police like dress and has covered his face with 'gamchhd. The other dacoits, who were young persons, kept their faces uncovered. The culprits were looking for the informant. The dacoits assaulted some persons and some persons sustained injuries by bomb blast. The informant further alleged that Daro Rout threatened him with dire consequences when the informant asked for his money and refused to give goods from he shop on credit to Daro Rout, at the time of 'dushcra'. The informant alleged that Daro Rout has committed the crime due to the grudge for the said reasons.

5. The prosecution examined twenty-four witnesses, out of them, PW 3 Dasrath Rout. PW 8 Suresh Rout, PW 12 Sobha Rani, PW 13 Jarman Sen, PW 14, Pairu Mian, PW 18 Mariuin Bibi and PW 19 Sahdeo Chandra Sen are simply tendered. PW 6, Gour Mandal said that he knows nothing about the incident of dacoity. PW 7 Ramesh Rout said that dacoily was committed in several houses but he did not identify any of the dacoits. PW 1 Subal Mandal. PW 2 Ujjwal Kumar Sen, PW 9 Dukhan Mandal, PW 10 Chheku Mandal, PW 15 Gayatri Devi and PW 16 Uma Pado Sen said that dacoity had been committed in their houses but they did not identify any of the dacoits.

PW 5 Subhash Sen said that he identified accused Daro Rout by his voice.

PW 11 Usha Rani Sen, bhabhi of the informant, identified accused Daro Rout having taken part in the dacoity. PW 4 Narain Chandra Sen, in whose house also, dacoity was committed, said in his evidence that he inter alia identified accused Daro Rout, Lakshmi Rout and Wakil Rout.

6. Mr. J.P. Jha, learned Senior Counsel appearing on behalf of the appellant Daro Rout submitted that the whole case is false. There is no injury report; there was no source of light for identification; it is improbable that the persons known to the informant party will not conceal their identity at the time of committing crime in the night; admittedly appellant Daro Rout was on the inimical terms with the informant which is the reason for his false implication; identification by voice and identification in the torch light in the hands of the accused persons cannot be relied. He took me to the evidences and other materials on the record. In support of his submissions, he relied on Acheey Lal Sahni v. The State of Bihar, 1977 BBCJ 84; Amirchand Ahir v. The State of Bihar 1977 BBCJ 400; State of Orissa v. Chandra Pentia 1981 Cri L.J. 1060: Madan Prasad Singh v. The State of Bihar 1984 East Cr C 523 (Pat) : 1984 BBCJ 667 and Ram Ashrit Ram v. State of Bihar 1981 BBCJ (SC) 57.

7. From the materials on record, it is absolutely clear that dacoity was, committed in several houses. Now the question is whether the appellants were involved or not.

The occurrence took place at about 11 p.m. in the night. The fardbeyan was lodged without any delay i.e. at 4.30 a.m. in which appellant Daro Rout was named. He was identified by his voice by the informant Naresh Chand Sen (PW 17). Usha Rani Sen (PW 11) also identified him cover- ing his face and wearing police like dress. There are specific overt acts alleged in the fardbeyan against appellant Daro Rout. PWs 5 and 17 also deposed that they identified him by voice. He was also identified in the test identification parade by PW 4 Narain Sen. Daro Rout was known to PWs 5, 11 and 17. He was searching the informant. Thus there are ample evidence of active involvement of Daro Rout in the dacoity.

8. It cannot be accepted that only because there was some dispute between the informant and Daro Rout, the informant and his family members will engineer his false implication in the fardbeyan lodged without any delay. Rather the said dispute can be the motive for the crime.

9. So far appellants Lakshmi Rout and Wakil Rout are concerned, they have been identified in the test identification parade by PW 4 Narain Sen, indicating their participation. There is no motive for their false implication. If the persons are known, they can be identified in insufficient light. There must be chaos in the small village when several houses were looted by ten-fifteen dacoils. It is not proper to expect that all the victims will identify the culprits.

10. In the facts and circumstances of this case, I do not find any reason to interfere with the order of conviction passed against the appellants.

11. Mr. Jha on the question of sentence submitted that the appellants have suffered this case since 1993 and no useful purpose will be served by sending the appellants to jail to serve out the sentence and that they have no criminal antecedent.

12. In the circumstances, I am inclined to modify the sentence to the period already undergone by them in jail and also a fine of Rs. 3.000/- each, which if deposited in the trial Court within four months from today, they will be discharged from their bail bonds, failing which, they will undergo further imprisonment for one year.

13. In the result, both the appeals are dismissed with the modification in the sentence as indicated above.