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Judgment
R.N. Prasad and Loknath Prasad, JJ.—The Appellants have filed this appeal against the judgment and order dated 30.7.1991 passed by 9th Additional Sessions Judge, Arrah in Sessions Trial No. 228 of 1983 whereby they have been convicted for the offence u/s 396 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life.
One Suresh Bhar of village Barali Bhrauli gave a fardheyari, Ext. 5, at Kasath Police camp on 15.12.1983 at about 8 A.M. stating therein that on the preceding night he was sleeping near the mill of one Khunti Bhar. At about 11.30 P.M. 8 to 10 dacoits armed with gun came and entered the house of Tulsi Bhar. the deceased, from the northern side. Tulsi his uncle, raised alarm on which the dacoits fired which hit'' his uncle. Tulsi Bhar. The dacoits took away she buffalo and he identified Keshri Ahir and Daroga Ahir. the Appellants, amongst the dacoits. He claimed to identify the other dacoits by face. The informant and other followed the dacoit but the dacoits fired due to which they did not dare to follow furthermore. The dacoits were abusing while fleeing away. They were wearing Dhoti, Kurta, Lungi etc. The dacoit ran away towards village, Mariya.
On the aforesaid fardbeyan a formal first information report, Ext. 3, was drawn and investigation of the case was taken up. During the investigation names of three other persons came and after completion of the investigation, charge sheet was submitted u/s 396 of the Indian Penal Code against five persons. On receipt of the charge sheet in the Court, cognizance was taken up and the case was committed to the Court of session for trial.
the case of the defence was that they were falsely implicated in this case out of malice and enmity. They also denied their participation in the alleged occurrence.
The prosecution in support of its case examined 9 witnesses out of whom. P.W. 3 and P.W. 5 are eye witnesses to the occurrence and have claimed to identify the Appellants. P.W. 1 and P.W. 2 did not identify the Appellants but they have deposed that P.W. 3 and P.W. 5 disclosed the names of the Appellants just after the occurrence. P.W. 4 has been tendered. P.W. 6 is the doctor, who held postmortem examination over the dead body of Tulsi Bhar. P.W. 8 is the wife of the deceased and she claimed to have identified Lallan Ahir and Subedar Ahir of her village Murat Ram has been examined twice as P.W. 7 and P.W. 9. He has proved the fardbeyan, Ext. 5, first information report, Ext. 3. and the diary from paragraph 1 to 97 as Ext. 8.
In this case, the death of Tulsi Bhar and the place of occurrence have not been disputed by the defence. It is the prosecution case that the occurrence took place in the house of the deceased and Tulsi Bhar died due to the injuries caused by the dacoits by fire arm. The evidence of the witnesses is also consistent on the aforesaid point. The doctor P.W. 6. who held the postmortem examination over the dead body of Tulsi Bhar, had also found anti mortem injuries on the person of the decreased and hence the place of occurrence and the death of Tulsi Bhar have been well proved.
in this case five persons were put on trial out of whom three persons have been acquitted and the Appellants have been convicted P.W. 3 and P.W. 5 are eye witnesses. P.W. 3 has stated in his evidence that he was sleeping in the mill of P.W. 1. which is near the house of the deceased at a distance of 5 Kathas north. He went to the place of occurrence on hearing the sound of firing and alarm raised by the wife of the deceased P.W. 8. He identified the Appellants in the light of the torch as the Appellants had come to purchase the buffalo a few days ago. He has further stated in his evidence that his house is near the mill and he used to sleep in the mill and the dacoits were also chased. P.W. 5 has also corroborated the evidence of P.W. 3. He has stated in his evidence that he went to the place of occurrence on hearing the sound of firing and the alarm raised by the wife of the deceased. He had a torch in hand and had identified the dacoit in the light of the torch. He had seen the dacoit from a close range. He has further stated in his evidence that the P.W. 3, P.W. 1 and others also chased the dacoits. P.W. 1 and P.W. 2 did not claim to have identified the dacoits However, P.W. 1 has stated in his evidence that he was sleeping in his mill and P.W. 3 was also sleeping there. He had a torch on his hand. He went to the place of occurrence on hearing the alarm raised by P.W. 8. the wife of the deceased. P.W. 3 and P.W. 5 disclosed the name of the Appellants just after the occurrence. He also stated that he was examined by the police next day of the occurrence. Similar is the evidence of P.W. 2 who has deposed that P.W. 3 and P.W. 5 disclosed the name of the Appellants just after the occurrence and had claimed that they had identified the dacoits in the light of the torch. P.W. 1 and P.W. 2 though not claimed to have identified the dacoits but they corroborated the evidence of the eye witnesses namely, P.W. 3 and P.W. 5 on the point of identification of the Appellants in the light of the torch. Their evidence appears to be consistent on the point of occurrence and on the point of identification in the light of the torch. P.W. 6 is the doctor, who held postmortem examination over the dead body of the deceased. He has deposed that he found ante mortem fire arm injury on the person of the deceased which was sufficient to cause death. All the witnesses have stated in their evidence that Tulsi Bhar died due to the injury caused by fire arm. P.W. 8 the wife of the deceased, has deposed that she identified Lallan and Subedar, the co-villager. But it appears from her evidence that she did not name the aforesaid accused persons in her statement before the police nor she stated with regard to the means of identification in her evidence. Thus her evidence was not relied upon by the Court below and Lallan and Subedar were acquitted. However, she has stated that P.W. 3 and P.W. 5 disclosed the name of the Appellants just after the occurrence. Thus her evidence also supports the prosecution case on the point of identification of the Appellants by P.W. 3 and P.W. 5.
However, learned Counsel for the Appellants contended that in the first information report nothing has been mentioned with regard to the means of identification. The witnesses have claimed to have identified the Appellants in the light of the torches but the same were neither produced before the police nor before the Court and hence their evidence cannot be accepted on the point of identification. Learned Counsel in support of his submission relied upon a decision in the case of Harisharan Ahir and Ors. v. State of Bihar (1985 B.L.J. 55) on a perusal whereof it appears that it was not a decision on the point that non-production of the means of identification would be fatal to the prosecution rather considering the other surrounding circumstances of the case it was held that the prosecution has failed to prove its case. However in the case of Shakti Patra and Anr. v. State of West Bengal (1981 S C. 1217) it has been held that where direct testimony shows that torch light was available at the scene of occurrence, mere non-mentioning of torch in the first information report or in the statement of the witnesses before the police will not disprove the identification of the accused in the torch light. In the instant case, P.W. 5 has stated that he had a torch in his hand P.W. 1 also stated that he had a torch in his hand. P.W. 3 also claimed to have identified the dacoits in the light of the torch P.W. 4 has corroborated the evidence of P.W. 1, 3 and 5 on the point pf possession of torch in their hands. The evidence of the witnesses are also trustworthy and thus, in our view, the decision relied upon by the learned Counsel for the Appellants do not help him in the facts and circumstances of the case.
Learned Counsel for the Appellants further contended that the witnesses have denied lo have identified the Appellants while they were running away and hence the identification is not possible and hence the evidence of the witnesses are not worthy of reliance. In support of his contention ho relied upon a decision in the case of Bali Ahir and Ors. v. State of Bihar (1983 B.L.J. 206) wherein it has been held that identification of dacoits while running away from a distance of 50 yards is not possible. In the instant case P.W. 5 has categorically stated in paragraph no 15 of his evidence that he identified the dacoits from a very close range. There was also altercation with the dacoits and the P.W. 5. P.W. 3 has also stated in his evidence that he identified the decoits from a close range Nothing has been brought in the cross examination to disbelieve the evidence of the aforesaid eye witnesses namely, P.W. 3 and P.W. 5, P.W. 1 has also stated that P.W. 3 and P.W. 8 and others were chasing the dacoits but he was behind the P.W. 3 and P.W. 6. Thus, in our view, the submission of the learned Counsel cannot be accepted. Besides the decision relied upon has no application on the facts and in the circumstances of the case.
Learned Counsel for the Appellants further contended that P.W. 5. Degree Yadav was inimical to the Appellants. He pointed out that the Appellants are of village Mariya and one Ram Chandra Yadav is their co-villager P.W. 5 is the cousin brother (Phuphera Bhai) of the aforesaid Ram Chandra Yadav. A criminal case was instituted against Ram Chandra Yadav in which the Appellants had deposed against the aforesaid Ram Chandra Yadav and the Appellants had been falsely implicated in the case at the instance of P.W. 5. In this regard it appears that suggestion was given to P.W. 5 with regard to the aforesaid facts, which P.W. 5 categorically denied and stated that he had no relationship with the aforesaid Ram Chandra Yadav. However, one Rameshwar Singh was examined as D.W. 1 in support of the defence version, who stated in his evidence that Ram Chandra Yadav of village Mariya is the Phuphera Bhai (counsin brother) of P.W. 5, D.A. 1 is a resident of another village and is not related with the family of either P.W. 5 or Ram Chandra Yadav and he had no special means of knowledge with regard to the relationship with P.W. 5 and Ram Chandra Yadav. u/s 50 of the Evidence Act, the evidence of only such person with regard to relationship shall be admissible who has special means of knowledge with regard to the same. Moreover, D.W. 1 has admitted in his evidence that he did not know the Phua (father''s sister) of P.W. 5 or to whom she was married. He also could not be able to say about the family members of P.W. 5 and Ram Chandra Yadav nor could he be able to say with regard to the special means of knowledge about the relationship between them. Furthermore, D.W. 1 has not stated in his evidence with regard to any criminal case lodged against the aforesaid Ram Chandra Yadav in which the Appellants claimed to have deposed. Thus, we find no substance in the submission of the learned Counsel for the Appellants and the same has to be rejected.
Learned Counsel for the Appellants further contended that the investigating officer has not been examined in this case and thus the defence case has been prejudiced. It appears from the records that all steps were taken for examination of the investigating officer but his attendance could not be procured. Non-examination of the investigating officer by the prosecution inspite of the steps taken for his evidence is not always fatal to the prosecution case unless it is shown that the defence case has been prejudiced and interest of justice has suffered. In this connection a decision in the case of Ramdeo Rajwar and Anr. v. State of Bihar (1991 B.B.C.J. 1666) may he referred to. In the instant case it appears than no attention of the witnesses has been drawn on the material point rather it appears that attention of the witnesses has been drawn only on the very flimsy nature of contradiction such as; non-production of torch. Moreover, learned Counsel for the Appellants could not he able to point out as to how the case of the defence was prejudiced or interest of justice has suffered and hence the contention of the Appellants cannot be accepted specially in the circumstances that the evidence of the witnesses is consistent and worthy of reliance on all material points.
Accordingly, we do not find any merit in this appeal. Accordingly, this appeal is dismissed.