Jharkhand High Court
Baldeo Thakur vs The State Of Bihar ( Now Jharkhand) on 27 February, 2023
Cr. Appeal (DB) No. 163 of 1994(P)
Against the judgment of conviction and order of sentence dated 25.02.1994,
passed by Shri Alakh Kumar Dubey, learned 1st Additional Sessions Judge,
Deoghar in Sessions Case No. 177 of 1992/90 of 1992.
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Baldeo Thakur, S/o late Lakhi Thakur @ Lakhi Bhandari, R/o Vill-Kaith Markhi,
Tola-Balwakenari, P.S. Karon, District-Deoghar. .....Appellant
Versus
The State of Bihar ( Now Jharkhand). ....Respondent
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For the Appellant : Mr. Chanchal Jain, Amicus Curiae
: Mr. Sameer Ranjan, Advocate
For the Respondent : Mr. Bhola Nath Ojha, A.P.P.
PRESENT
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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11/Dated 27/2/2023
Upon hearing the learned counsel for the State, the Court made the
following order, ( per S.K. Mishra, C.J.).
1. This appeal is directed against the judgment of conviction and order of
sentence dated 25.02.1994, passed by Shri Alakh Kumar Dubey, learned 1st
Additional Sessions Judge, Deoghar in Sessions Case No. 177 of 1992/90 of
1992, whereby and whereunder the appellant has been convicted for the offence
punishable under section 396 of the Indian Penal Code and has been sentenced
to undergo imprisonment for life.
2. The appellant-Baldeo Thakur was charged under section 396 of the Indian
Penal Code, 1860 (hereinafter referred to as the Code for brevity)) has assailed
his conviction under the aforesaid provision and sentenced to undergo
imprisonment for life. No fine was imposed on the appellant.
3. The facts of the case may be stated briefly as follows:
In the night between 17/18th July, 1991 at village-Paharadaha
(Madankatta), the informant-Rabi Shankar Choudhary along with his other family
members woke up on hearing sound of breaking of the door. He and other
members of the family raised hulla, bolted the room from inside. By that time,
the dacoits numbering in 12 to 14 broke open the door of the post office and
entered into inner courtyards (Aangan). The dacoits further broke open the door
of the room in which all the members of the family were confined. The dacoits
demanded money from the father of the informant and dragged him to the
courtyard. The father of the informant gave away Rs.3,000/-to the dacoits out of
fear. The dacoits thereafter assaulted the father of the informant. The father of
the informant showed some resistance and fought with the dacoits with the help
of a Bhujali. Dacoits thereafter opened fire and also exploded bombs on the
deceased who happens to be the father of the informant, as a result of which,
the father of the informant fell down. The informant himself fought with the help
of a sword and inflicted sword injury to one dacoit. The informant and his mother
identified Baldeo Thakur and three others in course of commission of the dacoity
in the torch light. The dacoits thereafter decamped with the household articles,
cash of Rs.3,000/-, medicine box and papers and other articles of the post office.
The father of the informant succumbed with the injuries received by him during
course of the dacoity. One dacoit, who had received severe injuries on his person
was lying in the Aangan of the informant and was calling Bakrid Mian of Sukdidih
and was further saying Bakrid Mian had called him to commit dacoity and
thereafter he died. The neighbours reached the place of occurrence and the
report was submitted before the jurisdictional police station. The investigation
was commenced by the Investigating Officer and the dead body of the father of
the informant was sent for postmortem examination but no test identification was
conducted with respect to the two accused persons namely Bakrid Mian and
Baldeo Thakur. Ultimately, on completion of investigation, chargesheet was
submitted against the present appellant and another under section 396 of the
Code.
4. The defence took the plea of simple denial of the occurrence and false
implication on account of previous enmity with the informant.
5. The prosecution in order to prove its case examined ten witnesses, out of
which P.W-8-Rabi Shankar Choudhary is an eye witness and he is also the
informant of this case. P.W-1-Kabo Devi, wife of the deceased, Panchanan
Choudhary is the other eye witness. The rest, P.W-2, Suresh Choudhary, P.W-3,
Naresh Choudhary, P.W-4, Khub Lal Choudhary, P.W-5, Shila Devi, P.W-6-Dani
Choudhary and P.W-7, Subhadra Devi are all formal witnesses, who have arrived
at the spot after the occurrence is taken place. P.W-9, Dr. P. Chandra has
conducted postmortem examination on the dead body of the deceased. P.W-10,
Ajit Kumar is the Investigating Officer.
6. In addition to the aforesaid witnesses, the prosecution has relied upon
eight different documents which have been exhibited as Exhibits including F.I.R.,
seizure list, inquest report and postmortem report.
7. In defence, the defence has examined D.W. 1, Mahadeo Prasad Rai.
8. In course of hearing Mr. Chanchal Jain, learned Amicus Curiae, has
submitted that P.W. 1 and P.W. 8 have supported the case of the prosecution
and they have implicated the appellant only because there was inimical relation
between the informant and the appellant.
9. However, we have carefully examined the evidences of P.W. 1 and P.W.
8. They have categorically stated that the appellant was present at the time of
the occurrence and he was one of the culprits of commission of dacoity. Since
both the witnesses examined on behalf of the prosecution have categorically
implicated the appellant to be one of the dacoits, there appears to be no
reasonable ground to disbelieve their evidence. Moreover, prior enmity or
relationship with the deceased itself will not make a witness suspect. Only on
these grounds, a person cannot be held unreliable witness. In that view of the
matter, though we are inclined to hold that the prosecution has proved its case
beyond reasonable doubts and that no error has been committed on record by
the learned 1st Additional Sessions Judge, Deoghar in convicting the appellant,
we are inclined to accept the alternative argument advanced by the learned
Amicus Curiae. Learned Amicus Curiae relied upon the reported case of
Shajahan Vs. State represented by Inspector of Police disposed with
Basheer And Another Vs. State represented by Inspector of Police,
(2018)13 SCC 347, wherein the Hon'ble Supreme Court has taken into
consideration the various aspects and reduced the sentence to ten years. The
relevant portion reads as follows:-
"10.xxx Section 396 IPC prescribes punishment for dacoity with murder. In
the course of commission of dacoity, if a dacoit commits murder, all his
companions who are conjointly committing dacoity, are liable to be
convicted under section 396 IPC, although they may have no participation
in the murder beyond the fact of participation in the dacoity. The obligation
of the court in the matter of imposing the sentence "death or imprisonment
for life" is in the same sequence for the Sections 302 and 396 IPC. Though
the offence under Section 396 IPC is to be viewed with seriousness, for
the conviction under Section 396 IPC, larger discretion is vested with the
court insofar as there is possibility of imposing a penalty lesser than death
or imprisonment for life for the conviction under Section 396 IPC.
11. Placing reliance upon Dinesh v. State of Rajasthan, the High
Court took the view that commission of murder in the course of dacoity is
to be viewed with seriousness. We are also of the view that the offence
under Section 396 IPC is to be viewed with seriousness, especially, when
the dacoits are armed. But in the case in hand, the accused were not
armed. Accused Babu alias Nawab Sahib is alleged to have sat on
deceased Muthukrishnan and pressed his nose and mouth and is alleged
to have tightened his neck with the rope. The occurrence was of the year
2002. Considering the long lapse of time and the facts and circumstances
of the case, the sentence of imprisonment for life is modified as ten years
as directed by the trial court".
10. The facts of the reported case at paragraphs 10 and 11 are almost similar
to the facts of this case. In this case also, the appellant has not been implicated
as the person who has committed the murder. The allegation against him is that
he was standing in the inner courtyard, holding a torch and directing others to
carry out the dacoity. It appears that the appellant is 77 years old. It is also borne
out from the records that he has been remanded to custody on 29.07.1991 and
since then he was in custody till this Court granted bail to him on 28.9.2005. Thus
he has completed more than 14 years in custody, so no useful purpose will be
served by directing the appellant to be taken into custody to serve out the
remaining sentence imposed upon him by the learned 1st Additional sessions
Judge, Deoghar.
11. The appeal is allowed in part. The conviction is hereby sustained.
However, the sentence of imprisonment for life is hereby reduced to 14 years
rigorous imprisonment. Since the appellant is on bail, learned trial court shall
examine whether it is necessary to issue a warrant for completing 14 years of
sentence. If the contention raised is proper and correct, then there is no need to
issue a warrant for his arrest.
( S.K. Mishra, C.J.)
(Rongon Mukhopadhyay, J)
Jharkhand High Court, Ranchi
Dated 27th February, 2023.
Rakesh/Mukesh/NAFR
