Allowed

Dukhi Tiwari and Ors. v. State of Bihar

Patna HC1 May 2014CR. APP (SJ)/387/2002

Case brief

AI extract

What is this about?

High Court allowed criminal appeal challenging conviction for dacoity. Court quashed conviction noting contradictory prosecution evidence regarding place of occurrence and trivial attempts at concealment by accused, holding evidence unsafe to attract conviction.

What did the court decide?

Conviction quashed and appellants acquitted. Appellants discharged from bond liabilities and remanded to bail.

Dukhi Tiwari and Ors. Vs State of Bihar — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.387 of 2002

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=========================================================== 1. Dukhi Tiwari, Son of Indradeo Tiwari, Resident of Village Rampur Chaksawa, P.S. Bhorey, District Gopalganj. 2. Fulena Koeri, Son of Late Kashi Koeri, Resident of Village Rakwa Briti Tola, P.S. Bhorey, District Gopalganj. 3. Chabila Koeri alias Ram Chabila, Son of Deo Narayan Koeri, Resident of Village Garurha, P.S. Bhorey, District Gopalganj. 4. Sarda Koiri, Son of Laxmi Koeri, Resident of Village Rakwan, P.S. Bhore, District Gopalganj. .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Shri Prabhu Narayan Sharma, Advocate For the State : Shri Sujit Kumar Singh, APP

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=========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT

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Date: 01-05-2014

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The four appellants of the present appeal along with acquitted accused Ramdaras Koiri were charged with committing offences under Sections 395 and 397 of the Indian Penal Code for being put on trial in Sessions Trial No. 147 of 1989/22 of 2001 by the learned Additional Sessions Judge, Gopalganj. It appears that the judgment was delivered by the learned Presiding Officer, Fast Track Court No. I, Gapalganj on 16.07.2002 by which, while accused Ramdaras Koiri was acquitted of the charges, the four appellants were held guilty of committing offence under Section 395 of the Indian Penal Code. They were heard under Section 235 Cr.P.C. on 19.07.2002 and each of them was directed to suffer

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rigorous imprisonment for seven years. The appellants are before this Court to challenge the judgment of conviction and order of sentence passed upon them.

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The prosecution case emanated from the Fardbeyan (Ext.3) of C.W.1 Tufani Mian recorded in State Dispensary, Bhore on 07.08.1988 at about 4.30 A.M. It was stated by C.W.1 that after having taken his meal, he was lying in a cot in his Palani facing west. At about 1 A.M., 4-5 persons surrounded him to awake him and asked him to point out as to where he had stored his properties. The informant stated that in the light of torch flashed by the dacoits he could identify appellant Sharda Koiri @ Doctor who was armed with a country made gun and had put on a Kachchha and a Pagri. Appellant Fulena Koiri was carrying a Lathi in his hand whereas appellant Chhabila Koiri was carrying a torch. Appellant Dukhi Tiwari had a Jhola in his hand and all the accused persons had put on Kachchhas and turbans. It was specifically stated that as soon as the dacoits arrived they started giving blows with Lathi to the informant and that he started grappling with appellant Fulena Koiri upon which appellant Sharda Koiri fired 2-3 shots as a result of which the informant was hit in his face and he fell down on the ground. 2-3 dacoits, thereafter, entered inside his house and started plundering it which continued

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for about 20 minutes and after completing the plunder and loot the dacoits ejected there from and after firing two shots went away towards west.

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The informant stated that he did not have any personal knowledge about the details of the looted properties and that the same was to be given by her daughter-in-law (P.W.1) and his son Sahebjaan Mian (P.W.4). Besides, the two persons could also disclose the identities of the accused persons who had been seen by them also. While closing his statement, the informant stated that after he had fallen down appellant Chhabila Koiri snatched the wrist watch from him and the criminals also took away a three cell Arabian torch. The informant stated that after the dacoits were gone, the villagers assembled and they could be pointing out the description of the occurrence also.

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On the basis of Ext.3 the Fardbeyan of C.W.1 Tufani Mian, First Information Report of the case (Ext.2) was drawn up and it appears that the investigation was proceeded with after conclusion of which the five accused persons were put on trial by being charged with committing offences under Sections 395 and 397 of the Indian Penal Code which ended in the impugned judgment.

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The defence of the appellants was that the Sala of

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the informant was one Hussaini Mian who was resident of the same village of which the two appellants, namely, Sharda Koiri and Dukhi Tiwari were residents of and on account of their enmity with the said Hussaini Mian, the appellants have falsely been implicated in this case.

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I was taken through the evidence of the witnesses by the learned counsel appearing on behalf of the appellants.

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It appears from perusal of the evidence on the place of occurrence that as per P.W.2 Rahimni Bibi, the wife of the informant, the dacoity had taken place in the Bathan, that’s, the place where cattle shade and other establishments were located, but on a bare perusal of the Fardbeyan what appears is that the initial prosecution case was that the dacoity had been committed in the very house of the informant. As such, he had very specifically stated that the description and details of the plundered properties could be provided only by his daughter-in-law, Mahuri Bibi and her son Sahebjaan Mian who were examined respectively as P.Ws. 1 and 4. In fact the evidence of P.W.1 Mahuri Bibi also indicates that she had given some details of looted properties while deposing in Court as may appear from paragraph 1 of her evidence, but as per her own evidence dacoity had been committed at the Bathan, in a Palani. Thus, what appears from the evidence and the basic

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prosecution story is that the prosecution was itself not sure as to where should it fix its place of occurrence so as to convincing the Court regarding the place which had been plundered by the accused persons. In spite of that the evidence of C.W.1 the informant of the case appears giving out some sort of description of the place in paragraph 8 at page 5 of his deposition sheet. From perusal of that paragraph of C.W.1, what appears is as if there were two Marais out of which one was secured by putting up Tati on three sides of it but still it was open from one side. There was another Marai which was situated west of this open Marai which as per C.W.1 was in occupation of his wife P.W.2 Rahimni Bibi who was sleeping there along with a girl of the house. The evidence of C.W.1 in same paragraph 8 is contradictory and conflicting. The first line of paragraph 8 says that dacoity had been committed in the Marai in which he was sleeping but in the further lines of paragraph 8 he stated that the dacoits had plundered the second Marai which was in occupation of his wife. I have already noted that the initial prosecution story indicated as if dacoity had been committed in the house of the informant which was in occupation on the day of occurrence of P.Ws.1 and 4. P.W.1 I have already noted was giving some details of the looted properties and that itself was an indication that dacoity had been committed in the

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house in which P.Ws. 1 and 4 were sleeping in that night, but when it came to P.W.4 Sahebjaan Mian who was the husband of P.W.1 Mahuri Bibi, he stated as if the dacoity had been committed in the Marai at the Bathan and not in the house in which he was sleeping with his wife P.W.1. Thus what I find is that the evidence on the place of occurrence was not only misleading but was as perfunctory as not to lead to any definite inference.

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In addition to the above, it is admitted by P.W.2 that appellant Ramdaras Koiri had filed a case of murder in respect of his father’s killing and one Hussaini Mian was one of the accused in the case. P.W.2 Rahimni Bibi had admitted that Hussaini Mian was her brother and further that appellant Sharda Koiri and Ramdaras Koiri, acquitted accused, were great friends. Besides appellant Chhabila Koiri was also friendly with Ramdaras Koiri. It has been admitted by P.W.2 that appellant Sharda Koiri was a homoeopathic practitioner and he was not only a wealthy person but also a respected person in the village. P.W.1 Mahuri Bibi the daughter-in-law of C.W.1 and P.W.2 and wife of P.W.4 stated in paragraph 3 of her evidence that appellant Sharda Koiri had purchased a land from a person of Teli -caste and her family had also aspired to purchase the same land. It further appears that the informant was supporting the said vendor of the land but

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appellant Sharda Koiri appears scoring a win over the informant and his family members by succeeding in getting the land transferred to him by that person of Teli -caste and thus, appears having tricked away the informant and his family members. This fact has also been admitted by C.W.1 the informant himself in paragraph 7 wherein he stated that appellant Sharda Koiri had purchased the land from one Bandhu prior to the occurrence and the same land had also been purchased by his son but he again stated that the purchase by Sharda Koiri was subsequent to his purchase which fact clearly indicates that C.W.1 was making false statements. However, what appears from the above facts on purchase of land firstly by Sharda Koiri and subsequently by the informant’s family is that there was quite some ill-will between the two on account of the transaction in respect of the land. Ramdaras Koiri had already lodged a case against the Sala of C.W.1 and brother of P.W.2 for the murder of his father Bishwanath Koiri and it appears that there was some proceedings for maintaining the peace under Section 107 of the Cr.P.C. and probably P.W.4 had also been impleaded as one of the parties to that proceedings. All these litigations had erupted much prior to the occurrence. This was the background in which the Court has to view the evidence on identification of the accused persons by the witnesses.

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One has always to presume that in such a serious backdrop of strained and inimical relationship between the two parties it would never have been prudent on the part of the appellants to go bare face to commit such an act as was complained of by the informant. It appears from the evidence available on record that Sharda Koiri was a highly respected person in the village and at the same time he was much wealthier than the informant. He was very friendly with Ramdaras Koiri and appellant Chhabila Koiri as such the improbability which firstly arises out of the material facts of the case is as to how such a respected and wealthy person, like, Sharda Koiri could be supposed himself to go to commit dacoity in the house of his enemy and that too by not making any attempt to conceal his identity. The accused persons have not as per the evidence of P.Ws.1, 4 and C.W.1 concealed their faces. They had only put on a Kachchha or a Pagri as per P.W.1 or P.W.4, but P.W.2 the mother of P.W.4 and wife of C.W.1 was stating that the dacoits had camouflaged their faces by covering them and had put on Kachchha and coat. C.W.1 the informant of the case stated that the dacoits had definitely put on Kachchha but they had put on Kachchhas which were white in colour and further that there was no attempt by them to cover their faces. The dacoits had barely put

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on Pagris on their heads. Thus, what appears from the evidence of C.W.1 is that the dacoits had not attempted to conceal their identities whereas the evidence of his wife P.W.2 Rahimni Bibi in paragraph 4 points out that the dacoits had attempted to conceal their identities by covering their respective faces. This contrary evidence on the attempt by the accused persons of concealing their identities clearly leads to one conclusion that both the witnesses or all the witnesses were making false statements that they had really identified the accused persons. This was the reason that Ramdaras Koiri who was acquitted by the learned trial Judge was not named initially in the First Information Report and his name was impleaded by the informant and others subsequently by naming him in their respective statements under Section 161 of the Cr.P.C. Thus, what appears from the evidence of witnesses is that the evidence on identification of the accused persons appears not only not acceptable but they appear flimsy and artificial, making it unsafe to accept it so as to supporting the conviction of the appellants.

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The above are some of the reasons which in my opinion the learned trial Judge has missed though those were pointed out to him during the course of hearing of the case. These were very relevant and important facts leading to the inference of

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false implication of the appellants for reasons which I have presently noted and in that view I have no hesitation in holding that the conviction of the four appellants for committing the offence under Section 395 of the Indian Penal Code could not be upheld on facts.

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In the result, the appeal succeeds and the same is allowed. The appellants are acquitted of the charge, which they had been found guilty of. The four appellants are on bail. They shall stand discharged from the liabilities of their respective bonds.

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(Dharnidhar Jha, J.)

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Sanjay/-

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Dukhi Tiwari and Ors. v. State of Bihar

Case brief

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Dukhi Tiwari and Ors. v. State of Bihar

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