Allowed

Binod Prasad v. State of Bihar

Patna HC9 Apr 2013CR. APP (SJ)/181/2000

Case brief

AI extract

What is this about?

The High Court allowed three criminal appeals convicted for robbery and cheating under IPC Sections 395 and 412. The court acquitted the appellants because the prosecution failed to prove the case beyond reasonable doubt due to hostile seizure witnesses, omitted Section 313 questions on recovery, and lack of test identification parade.

What did the court decide?

Impugned judgment of conviction and sentence set aside; all appellants discharged from bail bonds.

Binod Prasad Vs State of Bihar — Cheating and Forgery | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.181 of 2000

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=========================================================== Binod Prasad, son of Mahabir Prasad, resident of village-Chanda, P.S.Barachatti, District-Gaya. .... .... Appellant Versus State Of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 209 of 2000 =========================================================== 1. Major Yadav, son of Sri Mangar Yadav & 2. Raj Kumar Yadav, son of Sri Gopal Yadav Both are resident of village-Ratani, Police Station-Barachatti, District-Gaya. .... .... Appellants Versus State Of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 211 of 2000 =========================================================== 1. Janardan Prasad @ Gopal Prasad, Son of Banshi Prasad & 2. Rakesh Kumar, Son of Raghunandan, Both the residents of village-Chanda, P.S.Barachatti, District-Gaya. .... .... Appellants Versus State Of Bihar .... .... Respondent =========================================================== Appearance : (In CR. APP (SJ) No. 181 of 2000) For the Appellant : Mr. Om Prakash Pandey, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. (In CR. APP (SJ) No. 209 of 2000) For the Appellants : Mr. Nand Kishore Prasad, No.II, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P (In CR. APP (SJ) No. 211 of 2000) For the Appellants : Mr. Om Prakash Pandey, Amicus Curiae For the Respondent : Mr. Sujit Kumar Singh, A.P.P =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 09-04-2013

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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All the above stated three Criminal Appeals arise out of common judgment of conviction and sentence order dated 16.05.2000 passed by Additional Sessions Judge-VIII, Gaya in Sessions Trial No.40 of 1999/337 of 1996 by which and whereunder he convicted all the above stated appellants for the offence punishable under Section 412 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years and accordingly a common judgment is being delivered in all the above stated three Criminal Appeals.

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One Shobhnath Singh, the driver of Dimple Coach Bus bearing registration no.BR-26H-6661, gave his fardbeyan to the Officer-in-Charge of Barachatti police station in the night of 12.07.1995 to this effect that on the same day when he reached at Chanda Bridge at about 12.30 p.m. by driving his bus, he found that the road was blocked by the boulders and when he stopped his bus, 10 to 12 unknown persons having armed with pistols encircled the bus and on the point of pistol they robbed the passengers of the aforesaid bus and also looted V.C.R. tape-recorder of the bus. He identified some dacoits in the light of torch flashed by the dacoits. He gave description of the dacoits and also stated that the passengers and driver of Deolok Bus bearing registration no.BR-24P 2661 were also robbed by the aforesaid miscreants.

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On the basis of aforesaid fardbeyan Barachatti P.S.Case

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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No.96 of 1995 under Section 395 of the Indian Penal Code was registered and subsequently, formal FIR under the aforesaid Section was drawn up against unknown persons.

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P.W.8 Sakaldeo Yadav, the then Officer-in-Charge of Barachatti police station took the charge of investigation and in course of the investigation, one his spy informed him about the involvement of accused Awadhesh Kumar in the alleged crime and having got the aforesaid information, he arrested the aforesaid Awadhesh Kumar who confessed his guilt disclosing the name of his associates including the appellants. P.W.8 seized one H.M.T. wrist watch from the possession of aforesaid co-accused Awadhesh Kumar and prepared seizure list in presence of witnesses. On the basis of aforesaid disclosure made by co-accused Awadhesh Kumar, P.W.8 raided the house of appellant Major Yadav and recorded his confessional statement and also recovered one tape-recorder on which Dimple Coach Bus No.BR-26H-6661 was engraved. P.W.8 prepared seizure list of the aforesaid recovery in presence of witnesses. Furthermore, P.W.8 recovered one V.C.P. from the house of appellant Raj Kumar Yadav on the basis of confessional statement of appellant Major Yadav. The aforesaid recovery of V.C.P. was made beneath the heap of cow dung cake. On the aforesaid V.C.P. the Dimple Coach Bus No.BR-26H-6661 was engraved. The seizure list of the aforesaid

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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recovery was prepared in presence of the witnesses. Furthermore, P.W.8 arrested appellant Rakesh Kumar who confessed his guilt and on the basis of his confessional statement, one cassette of Amir-Garib film was recovered from the room of his house and on the aforesaid cassette the Dimple Coach Bus No.BR-26H-6661 was engraved. The seizure list of the aforesaid recovery was prepared in presence of the witnesses. P.W.8 proceeded towards the house of accused Balram Prasad and arrested him who made confessional statement and one wrist watch was recovered from the possession of accused Balram Prasad and the aforesaid wrist watch was seized from his possession and the seizure list of the aforesaid recovery was also prepared. Furthermore, P.W.8 stated that the appellant Janardan Prasad @ Gopal Prasad confessed his guilt leading to recovery of one cassette of Shakti film on which Deolok Bus No.BR-24P-2661 was scribed. The seizure of the aforesaid recovery was prepared in presence of the witnesses. Similarly, P.W.8 raided the house of appellant Binod Prasad and also arrested other accused and recovered some articles from their respective possession. P.W.8 after completion of the investigation submitted chargesheet for the offences under Sections 395/412 of the Indian Penal Code against appellants and other accused persons. The cognizance of the offence was taken and the case was committed to the court of Sessions, in usual day.

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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Appellants and six others chargesheeted accused stood trial and accordingly, the appellants and other accused were separately charged for the offence punishable under Section 412 of the Indian Penal Code whereas all the appellants and rest accused were charged for the offence punishable under Section 395 of the Indian Penal Code. The appellants as well as other accused denied the charges and claimed to be tried.

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In course of trial, prosecution examined altogether ten witnesses. Besides it, several documentary evidences including seizure list were also exhibited on behalf of the prosecution.

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The statements of appellants and other accused were recorded under Section 313 of the Code of Criminal Procedure in which they reiterated their innocence. Although, no oral evidence was adduced by appellants and other accused but one document as Ext-A was got exhibited on their behalf in course of trial.

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The defence of the appellants and other accused appears to be completely denial of the prosecution story.

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The learned trial court having considered the materials available on the record and having relied upon the testimonies of P.Ws.8, 9 and 10 acquitted the appellants as well as other accused of the charge framed under Section 395 of the Indian Penal Code but convicting the appellants for the offence punishable under Section 412

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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of the Indian Penal Code whereas rest accused persons were acquitted of the charge framed under Section 412 of the Indian Penal Code and accordingly, each appellants were sentenced to undergo rigorous imprisonment for ten years in the manner as stated above.

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Learned counsel Sri Om Prakash Pandey appearing as Amicus Curiae in Cr.Appeal(SJ)No.181 of 2000 as well as in Cr.Appeal(SJ)No.211 of 2000 has assailed the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove its case beyond shadow of all reasonable doubt and the findings of the trial court are erroneous and based on surmises and conjectures. He submitted that the learned trial court taking the aid of Section 27 of the Evidence Act presumed that the looted articles were

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recovered from the houses of the appellants but no confessional statement of the appellants was brought on the recovery and unless and until the confessional statement of the appellants is brought on the record, the learned trial court had got no power to take the aid of Section 27 of the Evidence Act. He further submitted that the learned trial court in the impugned order relied upon Section 100(5) of the Code of Criminal Procedure but section 100(5) of the Code of Criminal Procedure is not applicable in this case because admittedly, in the instant case, seizure list witnesses were summoned and they were examined by the prosecution and, therefore, learned trial court

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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wrongly took the aid of Section 100(5) of the Code of Criminal Procedure in discarding the depositions of seizure list witnesses. He further submitted that moreover, prosecution could not succeed to prove this fact that the seized articles were of looted properties because the aforesaid seized article were never put on test identification parade nor the description of the aforesaid seized articles were given in fardbeyan of the informant Shobhnath Singh. He further submitted that later on police developed the story giving the description of the seized articles. He further submitted that informant as well as other eye witnesses were not examined and P.Ws.9 and 10 had not seen the alleged occurrence of dacoity and, therefore, they were not competent to say as to what articles were looted in course of dacoity.

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Learned counsel Sri Nand Kishore Prasad-II appearing in Cr.Appeal(SJ)No.209 of 2000 echoed the above stated submissions of Sri Pandey and added that no specific question regarding the confessional statement leading to recovery from the houses of the appellants was put to them in course of recording their statement under Section 313 of the Code of Criminal Procedure and therefore, no opportunity to the appellants was given by the trial court to explain the circumstances in which the aforesaid recovery was made. He further submitted that even if the appellant in Cr.Appeal(SJ)No.209 of

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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2000 are found guilty, then also a lenient view should be taken in respect of them because they have already suffered a lot by remaining in jail custody for near about five years.

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On the other hand, learned Additional Public Prosecutor Sri Sujit Kumar Singh supported the impugned judgment of conviction and order of sentence arguing that P.W.8 clearly proved the seizure of looted articles from the houses of appellants and the P.W.9 and P.W.10 claimed before the court that the seized articles were of looted properties and, therefore, the learned trial court rightly convicted and sentenced the appellants and there is no scope for this Court to interfere with the findings of learned trial court.

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Having heard the rival contentions of both the parties, I went through the record and I find that, altogether, ten witnesses have been examined by the prosecution before the trial court and out of them P.W.1 to P.W.7 are said to be witnesses on seizure list but admittedly all the aforesaid prosecution witnesses were declared hostile by the prosecution in course of trial though the aforesaid witnesses admitted their signatures on the seizure list. P.W.1 to P.W.7, specifically, stated that nothing was recovered from the houses of appellants in their presence. The aforesaid witnesses have, specifically, stated that the P.W.8 took their signatures on plain papers.

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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Section 100(4) says that every search shall be made in presence of two or more independent witnesses and section 100(5) of the Code of Criminal Procedure says that the search shall be made in presence of aforesaid independent witnesses and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses ; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search, unless specially summoned by it.

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It is clear from perusal of the aforesaid Section 100(5) of the Code of Criminal Procedure that the seizure list witnesses are not required to be examined unless they are summoned by the court. In the present case, admittedly the aforesaid seizure list witnesses were summoned and examined by the court and, therefore, the learned counsel appearing for the appellants rightly submitted that Section 100(5) of the Code of Criminal Procedure is not applicable in the present case. However, even if the aforesaid provision is not applicable in this case, then also it does not make any difference because the learned trial court has relied upon the testimony of P.W.8 who is Investigating Officer of this case and prepared the seizure list.

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P.W.9 is the owner of bus bearing registration no.BR24P-2661 in which the dacoity was committed and this witness stated

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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that V.C.P. and one cassette of his bus were looted by the dacoits and the aforesaid looted articles were got released by him from the court in his favour. This witness produced the aforesaid V.C.P. and cassette before the trial court which were exhibited by the trial court.

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P.W.10 Shashi Kant Singh is owner of Dimple Coach Bus No.BR-26H-6661. This witness stated that in course of dacoity, dacoits looted V.C.R and cassettes from his bus. This witness produced V.C.R. and cassette before the trial court.

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Both the aforesaid prosecution witnesses admitted that the seized articles had not been put on test identification parade. Admittedly, the description of the looted cassettes of V.C.R. and V.C.P. had not been given by the drivers of the aforesaid buses and for the first time, description of the aforesaid seized articles came to light after seizure of the aforesaid articles.

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P.W.8 is I.O. of this case. This witness supported the fact of recovery but admittedly he had not put the seized articles on test identification parade and, therefore, it is apparent from the aforesaid statements of the P.Ws.8, 9 and 10 that the seized articles were never put on test identification parade and it is apparent from perusal of the impugned judgment that the learned trial court believed that the seized articles were looted properties only on the basis that the above stated seized articles had been released in favour of P.W.9

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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and P.W.10 and Bus Numbers were engraved on the seized articles but admittedly, for the first time, in course of investigation it came to light that the Bus numbers were engraved on the looted articles.

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From perusal of the statements of appellants recorded under Section 313 of the Code of Criminal Procedure, it is apparent that no question regarding their confessional statements leading to recovery of recovered articles was put before the appellants in course of their examination under Section 313 of the Code of Criminal Procedure and in my view, unless and until the aforesaid circumstance is brought to the notice of the appellants, the aforesaid circumstance cannot be made the basis for their conviction.

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Admittedly, not a single witness of seizure list has proved the factum of recovery and except P.W.8, there is no any other witness on the point of seizure and recovery and, therefore, in my view the appellants are entitled to get the benefit of doubt.

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On the basis of aforesaid discussion, I feel no hesitation to hold that the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts.

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Accordingly, all the above stated three criminal appeals are allowed and impugned judgment of conviction and order of sentence is, hereby, set aside. All the appellants are on bail and they are discharged from the liabilities of their bail bonds.

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Patna High Court CR. APP (SJ) No.181 of 2000 dt.09-04-2013

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Let copies of first and last page of this judgment be handed over to learned counsel Sri Om Prakash Pandey who has rendered his valuable assistance to this Court as Amicus Curiae appearing in Cr.Appeal(SJ)No.181 of 2000 as well as Cr.Appeal(SJ)No.211 of 2000 so that he could take appropriate steps for his fee before Patna High Court, Legal Aid Committee, Patna. It is made clear that Sri Pandey will be entitled for fee in both the Criminal Appeals separately and the Patna High Court Legal Aid Committee, Patna shall ensure the payment of fee of Sri Pandey from its funds in accordance with rules and regulations.

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(Hemant Kumar Srivastava, J)

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Patna High Court, Dated, 9^th April,2013, NAFR/Brajesh Kr.

Binod Prasad v. State of Bihar

Case brief

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Binod Prasad v. State of Bihar

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