ANWAR AHMAD, J.
(1.) Both these appeals arise out of the same judgment and order and hence they are heard together and are being disposed of by this common judgment.
(2.) Both the appellants have been convicted and sentenced by judgment and order dated 18.7.2003 passed by Shri Baikunth Nath Shahi, 9th Additional Sessions Judge, Saran at Chapra, in Sessions Trial No. 119 of 2001/19 of 2002, for the offence under Sections 395 and 397 of the Indian Penal Code and sentenced to undergo RI for seven years and a fine of Rs. 2000/- and in case of default of payment of fine to undergo RI for a period of two months under each count with direction that both the sentences shall run concurrently.
(3.) Being aggrieved by and dissatisfied with the judgment and order passed by the Additional Sessions Judge-IX, Saran at Chapra, both the appeals have been filed ot set aside the said judgment and order and to discharge the appellants from the liabilities of their bail bonds.
(4.) Ram Jhari Devi, wife of Baleshwar Rai of village Barka Takiya, P. S. Khaira, under the district of Saran, gave fardbeyan to the Officer Incharge of Khaira Police Station on 16.11.1999 at 6.30 p.m. alleging therein that on the night of 15.11.1999 she along with members of her family went inside the house to sleep after ta
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king meal and her husband was sleeping on the outside dalan. At about midnight she woke up on the sound of cry of her husband and came out of the house of her dalan where she saw 15-20 persons having iron rod, hunter etc. standing there and assaulting her husband. The miscreants also started assaulting her. It is further alleged that 5-7 miscreants entered into her house and she also followed them. The miscreants entered into the room of her daughter in law Neelam Devi and started assaulting her. She covered her daughter in law. A lantern was lighting in the room. The miscreants started removing the articles kept in the room and during that course, the informant identified her villager Teras Rai and one Mahesh Rai of another village in the light of the lantern. It is alleged that Mahesh Rai started lifting the articles kept on the rack of the room and handing over to Teras Rai. It is further alleged that Teras Rai snatched golden chhuchhi, golden eartop and payal from the informant. It is further alleged that Mahesh Rai snatched golden har (chain) golden chhuchhi and payal from her daughter in law. Miscreants also took away four boxes containing clothes, utensils etc. It is further alleged that miscreants again started assaulting her husband and thereupon the informant picked up a bhala kept in the dalan and wanted to give bhala blow upon the miscreants but Teras Rai gave a pistol shot hitting her right shoulder causing severe injury. Thereafter, the miscreants fled away making fire. It is alleged that, miscreants looted away articles worth Rs. 25,000/-. It is alleged that her husband is handicapped and received simply injury. On the basis of this fardbeyan. Chapra Sadar P. S. Case No. 395/99 under Sections 395, 397 and 398 of the Indian Penal Code was registered against Teras Rai, Mahesh Rai and against 15-20 unknown persons.
(5.) After investigation charge-sheet was submitted under Sections 395 and 397 of the Indian Penal Code against two persons namely, Teras Rai and Mahesh Rai and receipt of which cognizance was taken and thereafter the case was committed to the Court of sessions.
(6.) The defence case is that appellant Teras Rai had got illicit relation with Neelam Devi, daughter-in-law of the informant and the relationship continued till dacoity. The case is that family of the informant on account of illicit relationship was annoyed with Teras Rai and on account of that, both the appellants, when the occurrence of dacoity took place in the house of informant were falsely implicated. The further case is that appellant Mahesh Rai is the bahnoi (brother-in-law) of the appellant Teras Rai who used to make pairvi in a case under Section 307, IPC against Teras Rai filed by Neelam Devi and for that reason he was falsely implicated in the case.
(7.) Charges were framed under Sections 395/149 and 397/149 of the Indian Penal Code against both the appellants and after trial they were convicted and sentenced as stated above.
(8.) In order to prove the case, the prosecution has examined altogether 8 witnesses in this case. The defence has not examined any witness.
(9.) PW 1 is Mohan Prasad Yadav. He stated that he was sleeping in his house and at about midnight he woke up on the sound of cry and firing. He ran to the place of occurrence but stopped on threats given by the dacoits. Thereafter he went to the house of Baleshwar Rai and saw that Ram Jhari Devi had received fire arm injury on her right arm and the injury was bleeding. He came to know from Ram Jhari Devi that she identified Teras Rai and Mahesh Rai out of the dacoits in the light of lantern.
(10.) PW 2 is Baleshwar Rai, husband of informant. He stated that on that night he was sleeping. He stated that at about midnight 15-20 miscreants started assaulting him and thereupon he raised a cry. His wife came there to whom miscreants started assaulting. Ten miscreants were inside the house. He further stated that his wife wanted to assault a miscreants with bhala and thereupon Teras Rai and Mahesh Rai fired upon her causing injury on the right arm. He stated that the dacoits entered into the house and looted away the articles including ornaments, utensils etc. He stated that he is a handicapped and retired from service of military in the year 1980. He stated that his wife told the villagers that Teras Rai gave shot from fire arm.
(11.) PW 3 is Sahbir Rai. He supported the occurrence of dacoity and injury sustained on the person of the informant. He did not state that he came to know of the name of Teras Rai and Mahesh Rai amongst the dacoits and hence he was declared hostile on this point and thereafter his attention was drawn towards the statement made before the police that the informant told him that Teras Rai and Mahesh Rai were identified by her in the light of the lantern.
(12.) PW 4 is Neelam Devi, daughter-in-law of the informant. She stated that at about midnight the dacoits entered into her house and began to assault he. She stated that Mahesh Rai removed the articles kept on the rack of her room and handed over the same to Teras Rai. They also committed the theft of boxes and attache. She stated that she identified Mahesh Rai and Teras Rai in the light of the lantern. She further stated that Mahesh Rai snatched her ornamnets from her body and Teras Rai from the body of her mother-in-law. Thereafter the miscreants started to assault her father-in-law Baleshwar Rai. She stated that her mother-in-law wanted to give a bhala blow to the miscreant and thereupon Teras Rai gave a pistol shot causing injury on the left shoulder.
(13.) PW 5 in Ram Jhari Devi. She is informant of this case. She has totally supported the case narrated by her in the fardbeyan. She stated that she received injury of fire arm given by Teras Rai on her right arm. She stated that her son Ram Babu Rai is in military service and hence she was treated in different military hospitals and one bullet was removed from her arm by the doctor of Military Hospital, Chandigarh. She produced the bullet in Court which has been marked Mat. Ext. 1.
(14.) PW 6 is Dr. Ram Ekbal Prasad. He stated that he examined Ram Jhari Devi and found one lacerated wound with charred inverted margin 1"x 1/2" oval in shape on the right arm in the upper third part with cracking sound of bone i.e. fracture of humorous (wound of entry) besides one abrasion below the right knee. On X-ray compounded fracture of right humorous with a metalic foreign body shadow (Bullet) in upper part was found. He has proved his injury report.
(15.) PW 7 is Lalan Prasad, SI of Police. He stated that he submitted charge-sheet in this case.
(16.) PW 8 is Sarvesh Kumar Singh, Officer Incharge of Khaira Police Station. He is the IO of this case. He recorded fardbeyan of the informant Ram Jhari Devi. He has proved the injury report which has been marked Ext.4 and formal F.I.R. (Ext. 5). He inspected the PO and has given the details thereof.
(17.) The evidence of witnesses examined, as discussed above, prove the case. The defence gave suggestion to the informant (PW 5) at para 37 of her deposition that occurrence of dacoity took place in the house of the informant but on account of annoyance due to illicit relationship of the appellant Teras Rai with Neelam Devi, daughter of the informant, the appellants were falsely named in the case. This suggestion amount to admission on the part of the defence that dacoity took place in the house of the informant. Now the point to be considered is whether the appellants committed/participated in the said dacoity or not.
(18.) The defence case is of false implication and for that, motive has has been assigned. The defence has not adduced any evidence in support of its case. The defence has also not succeeded in bringing out some evidence in the cross-examination of the witnesses so as to make the defence case proved or able to make probable. So, the defence case remained in the form of suggestion and has not been proved.
(19.) The informant (PW 5) and her daughter-in-law (PW 4) have specifically stated that they identified the appellants while committing dacoity in the light of lantern. PWs 1 and 2 stated that they came to know of the name of the appellants from the mouth of the informant that they were identified by her. It is stated that the informant sustained injury of fire arm given by the appellant Teras Rai and the medical evidence of the doctor corroborates the injury. Above all, the defence has given a suggestion to the informant, PW-5 in para 26 of her deposition that she and her daughter-in-law willingly took of their ornaments from their body and handed over the same to Mahesh Rai and Teras Rai. This suggestion amounts to admission that appellants committed the dacoity.
(20.) The learned defence lawyer submitted that the witnesses examined in this case belonged to the same family and no independent witness has been examined. Of course, all the witnesses who have supported the case appear to be the same family but they are natural witnesses in the facts and circumstances of the case and their evidence cannot be brushed aside on this score. I do not find any illegality, irregularity or the material contradiction in the evidence of the witnesses. I find that evidence of the witnesses are consistent and reliable. So, this submission of the defence lawyer is not acceptable.
(21.) The learned defence lawyer submitted that some dacoits are said to have covered their faces but it is strange that appellants did not cover their faces. He submitted that this shows that appellants out of animosity have falsely been implicated in this case. To cover the face is an act and conduct on the part of the miscreants. Some miscreants are so desperate that they do not cover their faces and try to conceal themselves. In view of the consistent evidence of the witnesses, this submission is not acceptable.
(22.) The learned defence laywer submitted that the offence under Section 397 is not made out as no deadly weapon was used or grievous hurt was caused. The offence under Section 397 is made out when the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt. In the present case, appellant Teras Rai gave a shot from fire arm causing injury on the right arm of the informant. The medical evidence shows that informant sustained compound fracture of right humorous and on X'ray a metalic foreign body shadow of bullet was found in upper part. So, the appellant f'eras Rai has out and out committed the offence under Section 397 of the Indian Penal Code. So far appellant Mahesh Rai is concerned there is no such case and there is no evidence of the informant that Mahesh Rai assaulted her. So, Section 397, IPC is not attracted against the appellant Mahesh Rai.
(23.) As discussed above, I find and hold that the offence under Section 395, IPC has been proved against both the appellants. So, the conviction and sentence passed by the learned Additional Sessions Judge, Saran at Chapra under this count is hereby upheld. I further find and hold that the offence under Section 397, IPC is proved against only one appellant Teras Rai and not against Mahesh Rai. Appellant Mahesh Rai is, therefore, acquitted of the offence under Section 397, IPC and the conviction of the appellant Teras Rai under this count is upheld.
(24.) In the result, both these appeals are dismissed with the above modification in the conviction and sentence for the offence under Section 397, IPC in respect of appellant Mahesh Rai.
(25.) Appellant Teras Rai is directed to surrender before the Court below within one month from the date of the judgment to serve the sentence and in case, he does not surrender within the aforesaid period, the learned Court below will take all coercive measures for his arrest. Appeal allowed partly