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2019 Supreme(Pat) 2059
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Cri. Appeal (SJ) Nos. 80, 92, 114, 161, 162, 214, 230, 234, 244, 302, 342, 353, 1091, 4251 of 2019 with 4274, 4785, 4856 of 2018
(24.10.2019)
Md. Mumtaz Mansuri @ Taj (in 80)
Rakesh Rai @ Piyush Rai @ Vikky & Anr. (in 4274)
Vickey Singh @ Deepak Kumar Yadav (in 4785)
Vinod Kumar Keshri @ Marai Keshri @ Murai Keshri (in 4856)
Pintu Singh @ Pintu Kumar Singh (in 92)
Raja Sah & Ors. (in 114)
Amit Kumar Jaiswal @ Bikku (in 161)
Rajesh Sharma @ Imarti & Ors. (in 162)
Ranjit Kumar (in 214)
Lakhan Kumar (in 230)
Rajbali @ Rajbali Kumar @ Barak (in 234)
Satya Narayan Prasad @ Satya Narayan (in 244)
Bishnu Kumar @ Mithun & Anr. (in 302)
Suraj Kumar @ Pappu Kumar (in 342)
Kishori Yadav (in 353)
Vikash Rajak (in 1091)
Babua @ Gunga @ Babuajee (in 4251)
vs.
State of Bihar – Respondents
(in all)
For the Appellants : M/s Satyendra Narayan Singh (in 80); Amarendra Kumar (in 4274, 114); Surendra Kumar Singh, Prabhat Kumar Singh (in 4785); Anil Kumar(in 4856); Sudha Chandra (in 92); Mr. Awadhesh Prasad Sinha, Kumar Mrityunjay Narain (in 161, 214, 244); Bibhakar Tiwary (in 162, 230); Ashutosh Kumar Vinayak (in 234); Awadhesh Prasad Sinha, Kumar Mrityunjay Narain ((in 161, 244); Surendra Kumar Singh, Prabhat Kumar Singh, Tulika Singh (in 302, 342); Praveen Kumar (in 1091); Prabhat Kumar Singh (in 4251).
For the Respondents: M/s Binay Krishna (in 80, 4274, 4785, 4856, 162, 230, 302, 342, 353, 1091); Smt. Usha Kumari (in 92, 114); Sri Sadanand Paswan (in 161, 234, 244); Sri Bipin Kumar (in 214); Ms. Usha Kumari (in 4251).
Headnote:
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3(i)(d) and 3(i)(s) – Indian Penal Code, 1860 – Sections 147 and 354(B) – Attempt to outrage modesty of woman and attack on Police personnel – Conviction and sentence – PW1 and PW-3 are not an eye witness to occurrence rather they have identified culprit after seeing video footage – Before production of two electronic equipments video footage were already seen by police official but they kept silence with regard thereto and in likewise manner video footage has not been seized by I.O., nor produced before I.O. – When there happens to be specific claim that multistoried house of informant/victim was put on fire, motorcycle has been burnt then remnants should have been there – There happens to be no finding with regard thereto – Apart from this, there also happens to be allegation of brick-batting but there happens to be no seizure with regard to any of events – In accordance with Section 114(g) of Evidence Act, if the party withhold best piece of evidence then in that circumstance inference has to be drawn against him – Instant prosecution is nothing but a farce – Prosecution has simply completed its paraphernalia only to avoid curse of administration as, a lady has been outraged by a violent mob whereunder State machinery completely failed to protect and which could be a black spot – Judgment impugned set aside. (Paras 21, 25, 32 and 33)
Indian Evidence Act, 1872 – Section 9 – Identification in dock is substantive evidence – Neither under Cr.P.C. nor under Evidence Act there happens to be any direction upon prosecution to have conduction of T.I. parade though its relevancy happens to be in accordance with Section 9 of Evidence Act – It is dock identification which has got edge irrespective of fact that prosecution had failed to conduct T.I. parade during course of investigation. (Para 26)
Aditya Kumar Trivedi, J. – Since all these appeals arise out of the same judgment of conviction dated 28.11.2018 and order of sentence dated 30.11.2018 passed by the learned 1st Additional District and Sessions Judge, Bhojpur at Ara in connection with SC/ST Case No.194 of 2018 arising out of Bihiya P.S. Case No.319 of 2018, on account thereof, have been heard together and are being decided by a common judgment.
2. All the appellants namely, Md. Mumtaz Mansuri @ Taj in Cr. Appeal (SJ) No.80 of 2019, Rakesh Rai @ Piyush Rai @ Vikky, Raja Sah in Cr. Appeal (SJ) No.4274 of 2018, Vickey Singh @ Deepak Kumar in Cr. Appeal (SJ) No.4785 of 2018, Vinod Kumar Keshri @ Marai Keshri @ Murai Keshri in Cr. Appeal (SJ) No.4856 of 2018, Pintu Singh @ Pintu Kumar Singh in Cr. Appeal (SJ) No.92 of 2019, Raja Sah, Rakesh Rai @ Piyush Rai @ Binni @ Vickky and Munni Sah in Cr. Appeal (SJ) No.114 of 2019, Amit Kumar Jaiswal @ Bikku in Cr. Appeal (SJ) No.161 of 2019, Rajesh Sharma @ Imarti, Shubham Sharma and Sonu Kumar in Cr. Appeal (SJ) No.162 of 2019, Ranjit Kumar in Cr. Appeal (SJ) No.214 of 2019, Lakhan Kumar in Cr. Appeal (SJ) No.230 of 2019, Rajbali @ Rajbali Kumar @ Barak in Cr. Appeal (SJ) No.234 of 2019, Satya Narayan Prasad @ Satya Narayan in Cr. Appeal (SJ) No.244 of 2019, Bishnu Kumar @ Mithun and Sikandar Kumar in Cr. Appeal (SJ) No.302 of 2019, Suraj Kumar @ Pappu Kumar in Cr. Appeal (SJ) No.342 of 2019, Kishori Yadav in Cr. Appeal (SJ) No.353 of 2019, and Babua @ Gunga @ Babuajee in Cr. Appeal (SJ) No.4251 of 2019 except Vikash Rajak in Cr. Appeal (SJ) No.1091 of 2019 have been found guilty for the offences punishable under Section 3(i)(d) as well as Section 3(i)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and, each one has been directed to undergo RI for two years as well as to pay fine appertaining to Rs.2,000/- and in default thereof, to undergo S.I. for two months additionally and, all the appellants excluding Vikash Rajak though found guilty for an offence punishable under Section 147 of the IPC but they have not been sentenced therefor. So far Vikash Rajak is concerned, he has been found guilty for an offence punishable under Section 147 of the IPC and has been sentenced to undergo R.I. for 2 years as well as to pay fine appertaining to Rs.2,000/- and in default thereof, to undergo S.I. for 2 months additionally.
Furthermore, appellants Kishori Yadav, Md. Mumtaz Mansuri @ Taj, Vinod Kumar Keshri @ Marai Keshri @ Murai Keshri, Bishnu Kumar @ Mithun, Sikandar Kumar have been found guilty for an offence punishable under Section 354(B) of the IPC and each one has been sentenced to undergo R.I. for 7 years as well as to pay fine appertaining to Rs.10,000/- and in default thereof, to undergo S.I. for 4 months.
3. Guriya Devi @ Guddi Devi filed a written report on 20.08.2018 disclosing therein that when she returned back from Brahmpur Mandir at about 9.00 A.M. and then while was taking sleep after breakfast, at about 3.00 PM she heard some sort of commotion wherefrom she perceived that a dead-body was lying near about railway track where, a large number of persons have assembled. They were trying to identify the dead-body, but failed. She also failed to identify the dead-body and so returned back to her house. After sometime, a mob consisting of 200-250 persons (unknown) armed variously raided her house, pelted stones and then lit fire in her house. Any how she came out from her house and rushed to Bihiya Police Station and informed orally. On the basis of the information given by her, the police personnel proceeded towards her house. She also rushed towards her house. As soon as she reached near the shop of Sharma Lohar, (1) Kishori Yadav, son of Lal Mohan Yadav of village Jamua, (2) Binod Kumar Keshari @ Marai, son of Kaushal Prasad Keshari of Ward No.2, Shikshak Colony, (3) Ranjeet Kumar, son of Suresh Prasad Gupta @ Suresh Gupta of Mohalla- Gupta Mandi, (4) Rajbali @ Barak, son of Parshuram Prasad o
