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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: ANIRUDH THAKUR & OTHERS

DATE OF JUDGMENT:       06/02/1998

BENCH: G.T. NANAVATI, S.S.M. QUARDRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      These appeals  by the  State are  directed against  the judgment and  order or  acquittal passed  by the  Patna High Court in  Criminal Appeal Nos. 564, 566 and 533 of 1981. The five respondents,  along with  one Bharat  Singh, were tried for committing the offence punishable under Section 396 IPC, in the  court of the Additional Sessions Judge, Sitamarhi in Sessions Trial  No. 53  of 1971/11  of 1990.  Accused Bharat Singh was  acquitted  but  respondents  Nos.  1  to  5  were convicted under  Section 396  IPC and  sentenced to  undergo imprisonment for life.      It was  alleged against  t he accused that on 13.8.1978 at about  1.00 P.M. they, along with 15 to 20 other persons, under the  leadership of Kailash Mahto, went to the house of Bilat Sah  (PW-18) of village Pakaria and committed dacoity. In order  to commit  dacoity they  dragged Bilat Sah (pw-18) and his  on Ramchandra  Sah (PW-19)  pushed them into a room and locked  them inside. On hearing their shouts many people rushed  to   that  place  and  protested  against  the  high handedness  of  the  dacoits  as  three  of  them  were  the residents of  the same  village and were known to them. Soon after the  decoits left that place, the village people freed Bilat Sah  and Ramchandra  Sah and  then started chasing the dacoits. When  Rajdeo Rai, who was heading the chasers, gave a lathi  blow to  one of  the decoits,  accused Ram  Kailash Mahto and  Nageshwar Suri  fired shots  as a result of which Rajdeo Rai  received injuries  on his  chest and abdomen and died there  and  then.  In  spite  of  that,  the  villagers continued the  chase and caught one dacoit, who gave out his name as  Surendra Singh  and stated  that he  was of village Singharia. The villagers of Pakaria were joined by people of the adjoining  villages and  they all  continued the  chase. During the  scuffles between  the dacoits  and  the  village people as  many as  ten dacoits  lost their  lives and  some villagers  also   received  injuries.   The  village  people returned to  the village with Surendra Singh in the evening. A t  about 8.00  P.M. Sub-inspector, Ram Nath Yadav (PW-12), who  was   in-charge  of  Sonbara  Police  Station  received information that  firing had  taken place in village Pakaria

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and that  some serious  incidents had  aslo taken  place. He left for  that village  and reached there at about 8.30 P.M. He recorded the complaint of Ramchandra Sah (PW-19) and sent it to  the police station for registering an offence. During the investigation  the six  accused could  be identified and were arrested. They were then put up for trial.      The trial  court relying  mainly upon  the evidence  of PWs- 1,6,11,13,18  and 19  and the extra judicial confession made by  Surendra Singh  (A-1) held that the prosecution has satisfactorily established that A-1 and A-3 to A-6 had taken part in  committing the  dacoity and, therefore, were guilty under Section 396 IPC. A-2 was given benefit of doubt as the evidence regarding his identification was no satisfactory.      The High  Court held  that the  prosecution evidence as regards identification  of A-1 was not consistent and it was doubtful that he was really caught by the village people and brought to  the village in the evening of 13.8.1978 and that he made  an extra  judicial confession  before the Mukhia of the village  (PW-13). It  also held  that the extra judicial confession  (Exh.-5)   was  not  reliable  in  view  of  the corrections made  therein. The  High Court also held that it was doubtful  if Ram Kewal Shah (A-3) of village Pakaria was one of the dacoits as he was described in the extra judicial confession as  a person from village Singharia. It also held that A-4  and A-5  were probably  falsely  involved  at  the instance of  Chandreshwar Thakur whose relation with A-4 and A-5 were inimical. It also held that A-6 had no concern with accused Kailash  Mahto and  in all  probability he  was also involved falsely at the instance of Chandreshwar Thakur.      The learned  counsel for  the  State submitted that the reasons  given  by  the  High  Court  for  disbelieving  the prosecution witnesses are not sustainable. He submitted that the findings  recorded by  the High  Court  are  based  upon improper appreciation  of evidence  and  that  has  lead  to failure of  justice. He submitted that A-1 was seen by PW-18 at his  house as  he was assaulted by A-1 by a stick and had thus received  two injuries.  The evidence  of PW-18 to that effect was  disbelieved by the High Court on the ground that in the  statement given  by him  he had not named the person who had given him stick blows. What the High Court failed to appreciate was that A-1 being of a different village was not known to PW-18 and, therefore, when he gave his statement on 13.8.1978 at  night he did not know his name and it was only on the  morning of  the next day when he had seen him in the village then he had come to know that he was Surinder Singh. It was, therefore, not proper to discard the evidence of PW- 18 on  the ground  that at the earliest point of time he had not disclosed  the name  of this  accused. A-1  was not only recognised by  PW-18 but  he was  also  recognised  by  PWs- 1,5,6,13 and  15 while  they were  chasing the dacoits. PW-6 had in fact caught him while he was  trying to run away. The High Court  disbelieved his  evidence on  the ground that he was contradicted  by PW-1.  This reason  given by  the  High Court is also wrong. PW-1 in his evidence had stated that A- 1 was brought by Chowkidar of Hanumannagar in the morning of the next  day. Merely   because PW-1 had not seen A-1 in the village on  the previous  day it was not proper for the High Court to  hold that  his evidence  falsified the evidence of PW-6 and other witnesses who have deposed that he was caught and brought  to the  village in  the evening  and was handed over to  the Mukhia.  The Chowkidar  of Hanumannagar (DW-3), who was  examined as  a defence witness, had stated that the village people  had produced A-1 before him. He did not give any specific  date in  the examination  in chief  but in the cross-examination at  one place  he stated  that A-1  before

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him. He did not give any specific date in the examination in chief but  in the  cross-examination at  one place he stated that A-1  before him.  He did  not give any specific date in the examination in chief but in the cross-examination at one place  he  stated  that  A-1  was  produced  before  him  on 13.8.1978 and  at an  other place  he  stated  that  he  was produced in  the morning  of 14.8.1978.  A-1 himself  in his statement under  Section 313 Cr. P.C. had stated that he was caught by  the village people, who were chasing the dacoits, in the evening of 13.8.1978 and was taken to village Pakaria on  suspicion   while  he   was  proceeding   from   village Janakinagar to  Hanumannagar. The  High Court held that h is explanation was  top be accepted as a whole or rejected as a whole and  since  he  had  stated  that  he  was  caught  on suspicion the  High Court  did not think it fit to rely upon that part  of his  statement whereby he admitted that he was caught by  the village  people on  13.8.1978. What  the High Court failed to appreciate was that the explanation given by A-1 was  found to  be false in view of the reliable evidence of the  prosecution witnesses and, therefore, it was open to the trial court to rely upon the admission  made by A-1 that he was  caught by  the village people on 13.8.1978 and taken to village  Pakaria. It was, therefore, not at all proper to discard the  evidence of  PW-6 and  other witnesses who have deposed that  while chasing  the dacoits  PW-6 was  able  to catch hold of A-1 and he was then brought to village Pakaria by the  village people  merely because PW-1 did not refer to this fact in his police statement and DW-3 had state that A- 1 was  produced before  him in  the morning of 14.8.1987 and that he  had handed  over A-1  to the  officer-in-charge  of Sonbara Police Station on 14.8.1978. The High Court had also doubted the  evidence of  PW-6 and  other witnesses  on  the ground that  their version  was unnatural and improper as no injury was  found on the person of A-1 while he was taken in custody by  the police. It was also submitted by the learned counsel for the respondents that if really A-1 was caught by the village  people they would have either killed h im as th ey had  killed ten  other dacoits  or at  least injured  him seriously. As stated earlier in view of the evidence of PW-6 and other witnesses and also the admission of A-1 himself it was not  at  all  proper  to  reject  the  evidence  of  the prosecution witnesses  on the  ground that  their version in this behalf was unnatural.      The High  Court rejected the evidence of Mukhia (PW-13) of the  village that  the village  people had  produced  A-1 before him  in the  evening of  13.8.1978 on the ground that his evidence stood contradicted by the evidence of PW-1, PW- 10 and  DW-3. A  s pointed out earlier PW-1 had not referred to the  fact of  A-1 being caught and brought to the village and produced  before th  Mukhia in  his police statement. We have already   held  earlier that it was not good ground for disbelieving that  A-1 was  caught by the village people and brought to village Pakaria and produced before the Mukhia in the evening  of 13.8.1978.  What PW-10  has  stated  in  his evidence that  no extra  judicial confession was recorded by the Mukhia  in his  presence. It  is difficult to appreciate how the  evidence of Mukhia (PW-13) could have been rejected because PW-10 who was one of the chasers denied, contrary to his police statement, that he was present at that time. DW-3 was of village Hanumannagar and obviously he was not present in village  Pakaria in  the evening of 13.8.1978. Therefore, on the  basis of  his evidence  that A-1 was produced before him at  village Hanumannagar  on 14.8.1978  and that  he had taken him  to the  Sonbara Police Station on that day in the morning  was  not  such  as  could  have  raised  bay  doubt

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regarding  the   evidence  of   PW-13,  Mukhia,   and  other witnesses.      PW-13 has  deposed that  half an  hour  after  A-1  was produced before  him A-1  had made a confession which he had written down  as stated  b y  A-1 and  obtained thereon  his signature also.  The High  Court doubted genuineness of this confession firstly on the ground that whether the Mukhia and other witnesses  have st  ated that  it was  made  by A-1 at village Pakaria,  the confession  itself shows  that it  was written at  village Madhia. It is true that at the bottom of the confession  we fine  an endorsement  which  reads  ‘Camp Madhia Men’  and the  prosecution could  not  satisfactorily explain when and why that endorsement was made subsequently. What th e High Court, however, failed to appreciate was that there was  nothing on  record to show, not even a suggestion by the  defence, that  there was  any camp  of police or any village officer  at village  Madhia. All  the witnesses have said that  it was  made at  village Pakaria.  Moreover,  A-1 himself had  admitted in his statement under Section 313 Cr. P.C. that he had confessed before Mahender Prasad Yadav, the Mukhia, and  that  he had signed it also. The High Court was of the  view that it was not open to the trial court to real upon this  admission of  the accused  as while  replying  to question Nos.  1 an  d 5A-1 had denied that he had taken any part in  the dacoity  and that he was arrested while running away after  committing dacoity.  We have already pointed out above   that A-1  had admitted  that the  was caught  by the village people  near Hanumannagar  and that  his explanation that   he was  caught on  suspicion was  found to  be false. Therefore, it  was open  to the trial court to rely upon the fact that  he was  arrested by  the village  people who were chasing the  dacoits. It  is difficult to appreciate how the general denial  by A-1  regarding his  participation in  the decoity could  have set  at naught  admission of independent facts that  he was  caught and  that he  made  a  confession before the  Mukhia. The  High Court was, therefore, wrong in holding that the extra judicial confession was not genuine.      Second  ground   on  which   the  High   Court  doubted genuineness of the confession was that the time mentioned at the bottom  of the  confession ‘11  baje’  was  subsequently changed to  ‘8 baje’.  It was  also of  the  view  that  the correction was  made so  as to  make it consistence with the FIR. What  the High  Court failed  to notice was that in the body writing of the confession it is clearly stated in words that it  was obtained  after recording the complaint and the correction was  made to  shaw that  it was made earlier. A-1 had made the statement at 8 O’clock. Moreover, portion below and touching  t he  part where  ‘11 baje’  was mentioned was found out  and therefore  it was  not clear  as to  who  had written that  time and  for  which purpose. Exh-5 had passed through different hands before it was produced in the Court. It  was   not  even   suggested  to   the  Mukhia   and  the Investigating Officer  that either  of them  had  written‘11 baje’ on  that confession,  therefore, it was not proper for the High  Court to  doubt the  evidence  of  Mukhia  or  the genuineness of the confession on this ground.      On more  ground given  by the High Court for discarding Exh-5 was that in Exh-5 accused Kewal Shah is stated to be a person of  village Singharia  where as  in the copy Exh-5/1, which was produced by the Investigation Officer, he is h own as a  person of village Pakaria. In view of this discrepancy between Exh.-5  and Exh.-5/1 the High Court held that it was not at  all safe  to rely  upon either of them. What he High Court failed  to appreciate  was that the copy of Exh.-5 was not made by the Mukhia but by the Investigation Officer and,

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therefore,  it  was  quite  likely  that  the  Investigating Officer himself committed that mistake while preparing Exh.- 5/1.      The High  Court has  also observed  that if  the  extra judicial confession  was made  at about  8.00 P.M  then  the complaint which  was recorded  at about 8.30 P.M. would have referred to  Exh.-5 and  as the complaint and the FIR do not contain any reference to Exh.-5 it was doubtful if really it was made  at 8.00  P.M. as stated in the confession and also by the  witnesses. In the complaint and the FIR it is stated that  A-1   was  arrested,   and  that   he   admitted   his participation in  the dacoity  and also  disclosed names  of some of  the dacoits.   In  the complaint and the FIR it was not specifically  stated that  an extra  judicial confession was made  by A-1  before the  Mukhia and that the Mukhia had written it down.      Thus none  of the  grounds given  by the High Court for doubting the  genuineness of  Exh.-5 are  tenable. We see no reasons to  doubt the  evidence of  Mukhia (PW-13) and other witnesses regarding A-1 making the extra judicial confession before him. Exh.-5 was received by the Investigating Officer at about  10.00 P.M. and he had made an endorsement on it to that  effect.   We  have,  therefore,  no  doubt  whatsoever regarding the  prosecution evidence  that A-1  had made  the extra judicial  confession before the Mukhia at 8.00 P.M. In our opinion  the trial courts was fully justified in relying upon the said confession and the High Court was not right in rejecting the same.      Having  considered  the  evidence  of  the  prosecution witnesses were  are satisfied  that   A-1  was  one  of  the dacoits who  committed the dacoity at the house of PW-18 and that the  he had  given two stick blows to PW-18 and that he was caught by the village people who had chased the dacoits. Their evidence  receive  support  from  the  extra  judicial confession made by A-1 himself and thus his participation in the dacoity  can be  said to  have been  established by  the prosecution beyond  any reasonable  doubt. The  High  Court, therefore, committed a grave error in acquitting him.      As regards  participation by  A-3, A-4, A-5 and A-6 the learned counsel  for the  State  submitted  that  they  were identified by  two or  more witnesses  and, therefore, their participation in the dacoity ought to  have been believe. In spite of   their identification by two or more witnesses the High Court did not think it fit to confirm t heir conviction as it  appeared to  it that  A-4, A-5, and A-6 were probably involved because  of enmity or their strained relations with Chandreshwar Thakur  of village  Pakaria. The High Court has also pointed out that A-4, A-5 and A-6 were not named b y A- 1  in   his  extra   judicial  confession.   They  were  all agriculturists and  had no connection with Kailash Mahto. In these circumstances  the view  taken by the High  Court that the  prosecution  cannot  be  said  to  have  proved  beyond reasonable doubt that A-4. A-5 and A-6 had also participated in the dacoity, is quite reasonable. As regards A-3 the High Court has pointed out that Ram Kewal, who was referred to as one of  the dacoits by A-1 in his extra judicial confession, was the  person of  village  Singharia  whereas  A-3  is  of village Pakaria. Subsequent correction made in Exh.-5/1 also creates a  doubt regarding  Ram  Kewal  of  Village  Pakaria having participated  in the  dacoity. As  we find  that  the reasons given  by the High Court for acquitting A-3, 104 A-5 and A-6  are not unreasonable, the order of acquittal passed in their favour does not call for an y interference.      In the  circumstances these  appeal are partly allowed. The judgment  and order  passed by the High Court as regards

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A-3, 1-4,  1-5  and  A-6  is  confirmed  but  the  order  of acquittal passed  in favour  of A-1  is set  aside and he is convicted for  the offence  punishable under Section 396 IPC and is  sentenced to  suffer imprisonment  for life.  A-1 is ordered to  surrender to  custody to serve out the remaining sentence.