Back
PATNA HIGH COURT
Ram Nandan Prasad, J.
Mohammad Hussain
Versus
State Of Bihar
Criminal Application No. 192 of 1982 ; 319 of 1982 ;
Decided On : FEBRUARY 18, 1986
CRIMINAL LAW - DAOCITY - SECTIONS 399 AND 402 OF THE INDIAN PENAL CODE - EVIDENCE - INFERENCE - SECTION 106 OF THE INDIAN EVIDENCE ACT - APPLICABILITY - BURDEN OF PROOF.
Fact of the Case:
The appellants were convicted under Sections 399 and 402 of the Indian Penal Code for assembling in an orchard with the intention of committing dacoity. The prosecution's case was that the appellants were apprehended in the orchard along with other persons, some of whom were armed with firearms and other weapons. The appellants denied the charges and claimed that they were falsely implicated.
Finding of the Court:
The court found that the prosecution had failed to prove beyond reasonable doubt that the appellants had assembled in the orchard with the intention of committing dacoity. The court held that the circumstances relied upon by the prosecution, such as the presence of the appellants in the orchard at night and the possession of firearms by some of the other persons, were not sufficient to establish the appellants' guilt. The court also found that the prosecution had failed to examine material witnesses, including the first informant, and that the investigation of the case had been conducted by the first informant, which was improper.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellants had assembled in the orchard with the intention of committing dacoity. 2. Whether the circumstances relied upon by the prosecution were sufficient to establish the appellants' guilt. 3. Whether the prosecution had failed to examine material witnesses and whether the investigation of the case had been conducted by the first informant.
Ratio Decidendi: 1. The court held that the prosecution had failed to prove beyond reasonable doubt that the appellants had assembled in the orchard with the intention of committing dacoity. The court relied on the Supreme Court decision in Chaturi Yadav and Ors. V/s. State of Bihar, which held that the mere fact that the appellants were found in the orchard at night and that some of the other persons were armed with firearms was not sufficient to prove that the appellants had assembled for the purpose of committing dacoity. 2. The court also held that the circumstances relied upon by the prosecution were not sufficient to establish the appellants' guilt. The court noted that the appellants had not been found in possession of any firearms or other weapons and that they had not been able to explain their presence in the orchard. However, the court held that this was not sufficient to prove that the appellants had assembled for the purpose of committing dacoity. 3. The court further held that the prosecution had failed to examine material witnesses, including the first informant, and that the investigation of the case had been conducted by the first informant, which was improper. The court held that these failures had prejudiced the appellants' case.
Final Decision: The court allowed both appeals and acquitted the appellants of the charges for which they had been convicted.
Ram Nandan Prasad, J.
1. These two appeals have been heard together and are being disposed of by a common judgment as they are directed against the same judgment.
2. Mohammad Hussain is the sole appellant in Criminal Appeal No. 192 of 1982, whereas there are two appellants in Criminal Appeal No. 319 of 1982, namely, Sadique Mian and Jamadar Hajra. Out of these two appellants, Sadique Main died during the pendency of this appeal and as such the appeal abates so far as he is concerned. Now Criminal Appeal No. 319 of 1982 is confined to only one appellant, namely, Jamadar Hajra. Both the appellants, namely, Mohammad Hussain and Jamadar Hajra have been convicted under Sections 399 and 402 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years each an both the counts. Their sentences have, however, been made to run concurrently.
3. The prosecution case is that in the evening of 7-2-1975 informant Bachcha Singh, Officer-in-charge of Raxaul police station, received a confidential information that some dacoits were to assemble in an orchard of village Bharath Mahi Tola Baluaha with a view to commit dacoity in that village. On receipt of this information, he organised a raiding party and proceeded towards the said place. When he reached near the said orchard, he divided his raiding party into two groups--one of which was led by him and the other by Sub-Inspector Mehdi Abbas. The party led by the informant comprised of 5 persons and the party led by Mehdi Abbas comprised of 8 persons in all. These two groups proceeded towards the orchard from two directions one from southern direction and the other from south-eastern direction. When they were about 50 yards from the orchard, some members of the raiding party flashed torch in the light of which they found about 20 persons sitting in the orchard in suspicious circumstances. On seeing the flash of torch, these persons started running but they were chased and, ultimately, the raiding party succeeded in apprehending four dacoits and the others managed to flee away. On hearing alarm raised by the raiding party, 7 persons of the locality came and saw those 5 persons in the custody of the police party. These apprehended persons disclosed their names and addresses etc. They also disclosed the names of the persons who had managed to flee away. Thereafter a search was made and a country-made gun was recovered from the hand of Mangal Kurmi and two live cartridges were recovered from the shirt of Jamil Mian who were amongst those 5 apprehended persons. These two persons, however, died during the pendency of the commitment proceeding and consequently only three appellants were put on trial, out of whom, as stated above, one of them, namely, Sadique Mian died during the pendency of the appeal. It is said that one farsa, one tanqi, three green bamboo lathis, five phattas and some unburnt ends of bidis and match sticks were also found at the place of the assemblage of the apprehended persons. The informant seized ail these articles and drew up his own fard-beyan at about 1 a.m. on 8-2-1975 in the orchard itself and took up investigation. Eventually a case was registered on the basis of that Fard-beyan. In due course, charge-sheet was submitted and the three appellants were put on trial with the result as stated above.
4. The defence of the appellants was that they were not apprehended in the orchard, rather they were arrested by the police at different places and have been falsely implicated in the case. The specific defence of appellant Mohammad Hussain was that he was dealing in eggs at Birganj and has been falsely implicated by the Rexaul police as he could not oblige them with eggs.
5. At the trial, the prosecution examined 8 witnesses in all, out of whom, PW 8 is a formal witness and PW 2 is the police officer who had submitted charge-sheet in the case PW 1, Gorak Thakur is a Dafadar and PW 6 Bishwanath Singh and PW 7, Gaya Tiwary are Assistant Sub-Ins
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
