State
of Bihar Vs. Anirudh Thakur & Ors [1998]
INSC 76 (6 February
1998)
G.T.
Nanavati, S.S.M. Quardri Nanavati, J.
ACT:
HEAD NOTE:
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 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 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 him as they 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 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, 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 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.
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