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2007 Supreme(Pat) 1559
PATNA HIGH COURT
Chandramauli Kumar Prasad and Rekha Kumari JJ.
Doctor Nonia
Versus
State Of Bihar
Criminal Appeal No. 449 of 2002 ;
Decided On : SEPTEMBER 21, 2007
Headnote:Indian Penal Code, 1860-Section 396-Dacoity-Murder-PWs 2, 3 and 4 were aged about 8, 10 & 12 years respectively at the time of occurrence but it cannot be said that at the aforesaid age one does not have the capacity to identify known persons-Name of the appellant finds place in First Information Report-Prompt reporting of First Information Report lends support to the case of prosecution-Non-examination of persons who are not witness to the crime shall not create any doubt to the case of the prosecution while eye witnesses supporting the factum of dacoity, value of property looted losses its significance-Over-whelming evidence on record that appellant abresed and assaulted PW1 and committed theft and used violence-Having held that appellants conviction u/s 396 IPC can not be sustained on the charge framed-Conviction and sentence of appellant u/s 396 IPC is set aside and altered to section 392 IPC and is sentenced to undergo rigorous imprisonment for ten years. (Paras 38 & 39)
Indian Penal Code, 1860-Section 396-Dacoity-Murder-Appellant having acquitted of the charge under section 302/34 of IPC-State having not preferred any appeal against his acquittal u/s 302/34 IPC, in an appeal preferred by the appellant his conviction cannot be altered to section 302 IPC. (Para 30)
Indian Penal Code 1860-Section 396-Dacoity-Murder-Dacoity is one of the ingredients for the offence under section 396 IPC and offence under that would fall within its ambit only when dacoity and murder are committed-For an offence of dacoity assembly of five or more, persons is sine qua non-on account of acquittal of six accused persons and in the absence of any charge that known accused persons were accompanied with such number of unknown accused persons so as to make the number of the assembly to be five or more-Appellant cannot be held guilty of offence u/s 396 IPC- There is over whelming evidence on record that appellant abused and assaulted PW1-Committed theft while doing so used volence-His conviction u/s 396 is altered to section 392 IPC and sentenced to ten years R. I. (Paras 35 to 39)
2002 (3) PLJR 357, AIR 1956 SC 441, AIR 1983 SC 352-Relied upon.
CHANDRAMAULI KR.PRASAD, J.
1. Mahendra Nonia and Doctor Nonia, aggrieved by the judgment and order dated 30th of May, 2002 passed by the Additional Sessions Judge, Fast Track Court No. Illrd, Bhojpur, Ara in Sessions Trial No. 397 of 1981/35 of 2002 holding them guilty of offence under Sec. 396 of the Indian Penal Code and inflicting sentence of imprisonment for life, have preferred this appeal.
2. During the pendency of the appeal, Mahendra Nonia died and, as such, appeal preferred by him has abated and this appeal is confined to appellant Doctor Nonia only.
3. According to the fard beyan given by P.W. 4 Ram Narayan Singh on 23.7.1980 at about 3 P.M. before the SubInspector of Police at Piro Police Station, prosecution story is that in the night between 22nd and 23rd of July, 1980, he was sleeping in the female-wing of the house, whereas his father Sheo Pujan Singh was sleeping at the Dalan of the house. At about 10 clock in the night he woke up on hearing the alarm of his mother Salhatiya Devi (P.W. 1) and saw her in the courtyard screaming being assaulted by two dacoits from the butt of the gun. His two sisters, namely Binda Kumari (P.W. 3) and Chandkeshari (P.W. 2) also woke up. Dacoits disclosed that they are facing the consequences of having picked up quarrel with Bihari and further enquiring as to where the sale-price of the ox sold has been kept. According to the informant, two of the dacoits, who were armed with bhala and pistol came near him and also enquired about the money. Dacoits intended to assault him but his mother came and shielded him. Two of the dacoits started breaking the earthen pot looking for the money, whereas 6-7 dacoits were at the Dalan of the house and assaulting his father, whereas some of them were in the gali. In the torch light of the dacoits themselves, informant identified Mahendra Nonia as also Doctor Nonia of nearby village Sanehi Tola. All the dacoits left the place from the exit door and closed the same from out side. At that time his father started screaming that he is being killed. On the alarm raised by the family members villagers came, opened the door and only thereafter they came out and found his father dead with injury. According to the informant, utensils as also Rs. 1100/- and clothes were removed by the dacoits during the course of dacoity.
4. On the basis of the aforesaid report, case was registered against Mahendra Nonia and Doctor Nonia besides 8 to 10 unknown dacoits. After usual investigation, police submitted charge sheet against eight accused persons including the aforesaid accused. They were ultimately committed to the court of Sessions and charged for committing the murder of Sheo Pujan Singh in furtherance of their common intention punishable under Sec. 302/34 of the Indian Penal Code as also for committing the offence of dacoity with murder punishable under Sec. 396 of the Indian Penal Code.
5. All the accused persons pleaded not guilty and claimed to be tried.
6. Prosecution in support of its case examined altogether six witnesses. P.W. 1 Salhatiya Devi is the widow of the deceased, whereas P.W. 2 Chandkeshari and P.W. 3 Binda Kumari are their daughters. P.W. 4 Ram Narayan Singh is the son of the deceased and informant of this case. P.W. 5 Jawahir Sah has been examined to corroborate the case of the prosecution. P.W. 6 Brij Nandan Singh is a formal witness.
7. Defence of the appellant is denial simplicitor and from the trend of the cross-examination, defence of the appellant seem to be that the prosecution party had enmity with Bihari Singh and he being associated with him has been falsely implicated in the case. However, no defence witness has been examined.
8. The court below on appraisal of evidence came to the conclusion that the charge under Sec. 302 of the Indian Penal Code shall not stand against any of the eight accused persons and also gave benefit of doubt, so far as the charge under Sec. 396 of the Indian Penal Code to other accused persons excep
