B.N.P. Singh, J.@mdashAt dead of night while house inmates were fast asleep, Nahid Alam (P.W. 4) got awakened when someone pushed door planks of the room, and shortly thereafter miscreants having gained their access in inner apartment of the house, holding arms, coerced house inmates, assaulted Sayeed Ali, removed house be(sic)gings, which includes ornaments, uten(sic)s, radios, etc, and while retreating with the booty, also exploded bomb to scare those who had courage to collect there. Fardbeyan of Nahid Alam (P.W. 4) was recorded by Police at 7 p.m. on 20th October, 1998, pursuant to which investigation commenced, on conclusion of which Police laid charge sheet before the Court. In the eventual trial that commenced, State examined altogether six witnesses, who were house inmates, doctor, and also Investigating Officer. Defence too examined two witnesses and brought on the record, Exhibits A and B.
2. Defence of the Appellant both before the Court below and this Court had been that of plain innocence and his false implication due to persisting feud between the parties for which Exhibit B was sought to be placed on record by the Appellant. Trial Court, however, while negativing plea of innocence of the Appellant, recorded ve(sic)ict of guilt u/s 395 of the Indian Penal Code (IPC) and sentenced the Appellant to suffer rigorous imprisonment for a term of seven years which is under challenge in this appeal.
3. Lot of contentions were raised at Bar on behalf of the Appellant, ostensibly to assail finding recorded by the Court below, but before I give them due consideration, I consider it apt to analyse testimony of witnesses for assessment of their probative value, and exercise may begin with the testimony of Nahid Alam (P.W. 4) who happens to be maker of fardbeyan, who had set the judicial process in motion. This witness while reiterating his earliest version, which he rendered before the Police, would state about house dacoity having been committed in the night of 19th October, 1998, when miscreants having gained their access in inner apartment of house, removed house belongings and decamped with the booty. The witness claims to identify the Appellant alone. Narrations made by this witness were akin to the evidence of Sayeed Ali (P.W. 1) and Gulsera Khatoon (P.W. 3) about commission of dacoity in the said night, in their house, when Appellant was identified by them. The State had also examined Atebul Rahman (P.W. 2) who would testify commission of dacoity in the house and would claim to identify the Appellant with the aid of voice.
4. Dr. Yogendra Prasad (P.W. 5) stated to have examined Sayeed Ali (P.W. 1), father of informant, who allegedly suffered injuries at hands of the Appellant with prick of sword, and the doctor stated to have noticed scratches and swelling on his person. Birendra Prasad (P.W. 6) was the Investigating Officer, who stated to have rushed to village Kachna Patharghate on receipt of confidential information about commission of dacoity in a house, and the witness states to have recorded fardbeyar of the informant, noticed marks of violence, which were broken boxes and also part of broken planks. He also states to have noticed signs of explosion of bomb, for which a seizure memo (Exhibit 5) was prepared by him. The witness stated to have recorded statement of witnesses and laid a trap in the house of the Appellant when he was found absconding and was eventually, apprehended on 22nd October, 1998. This is all the evidence that has been adduced on behalf of the State.
5. Now some of the arguments canvassed on behalf of the Appellant can be noticed. Contentions were raised at Bar that though the occurrence took place in the night of 19th October, 1998, it was not before 7 p.m. on 20th October, 1998 that fardbeyan of Nahid Alam was recorded by Police, and to crown all, it would appear from endorsement made by CJM on body of FIR that it was received in his office on 23.10.1998 and for this belated action of the prosecution, no plausible explanation had ever been placed on the record. Other limb of argument canvassed on behalf of the Appellant was that testimony of witnesses suffers major contradiction also about time when the Investigating Officer visited place of occurrence, and on this count my attention has been drawn to the narrations made by P.Ws. 3 and 4 who have stated about arrival of Police at about 8/9 a.m. which is at variance from the tenor of fardbeyan which shows recording of fardbeyan of Nahid Alam at 7 p.m. on 20.10.1998.
6. Though these contentions raised at Bar appear to be quite alluring, they can be rejected for the reason that recording of fardbeyan at 7 a.m. did not rule out possibility of the Police Officer visiting the place of occurrence earlier for recording of fardbeyan at 7 p.m. Yet other circumstances too would deserve consideration. Sayeed Ali (P.W. 1) states about arrival of Police in the evening at about 4 p.m. which is not at much variance from time when fardbeyan of Nahid Alam was recorded. That apart, error in assessment of time due to capacity of perception and observation varying from man to man, cannot be ruled out. Yet it is urged that though a number of villagers are suggested to have flocked to the place of occurrence, prosecution was guilty also for withholding material witnesses, one may, however, notice narration made by Nahid Alam (P.W. 4), that when villagers began to assemble, miscreants exploded bomb to scare them and it is not unlikely that except house inmates, who were victims, there would be no ocular witness for identification of the Appellant. Enmity between the parties was also taken to be a ground to assail bona fide of the prosecution allegation about complicity of the Appellant, and it is urged that none else but Sayeed Ali had acknowledged in most candid terms that in a case registered at the instance of Shamsuddin against him, Prem Das, father of the Appellant stood as a bailor, and as he had absconded in trial, said Prem Das had produced him before the Court. Learned Counsel or these premises seeks to urge that regard being had to this hostility, false implication of the Appellant could not be ruled out. However, I find that the said case was instituted in the year 1979, and the matter was quite stale, and it. was most unlikely that for a stale matter and that too without good reason, Sayeed Ali would falsely prosecute the Appellant through his son and the last argument canvassed on behalf of the Appellant was that right from the beginning, when the Appellant was apprehended by the Police, he continued to be in custody and had remained behind the bars for about four years. Learned Counsel for the State while resisting contentions raised on behalf of the Appellant would submit that in view of clinching evidence of the witnesses about identification of the Appellant during commission of dacoity, collateral matters which have been argued at Bar on behalf of the Appellant would not negate bona fide of the prosecution version.
7. Since the occurrence and that of dacoity was committed in the dead of night inside the house, admittedly witnesses who are expected to be ocular and competent, would be primarily the house inmates who had suffered the agony and mental trauma of the odds of dacoity committed in the house. Contentions raised on behalf of the Appellant about there being variation in the testimony of witnesses as to who had informed the Police about the incident, were matters of petty details which do not befog real issue. The moot question for consideration before the Court was as to whether evidence of the witnesses were trustworthy or vague about identification of the Appellant, and the Court below has rightly placed reliance on the testimony of P.Ws. 1, 3 and 4, and as Sayeed Ali was shown to have sustained injury at the hands of the Appellant, there had been its corroboration, by the finding of doctor, who examined the injured. Objective finding, of the Police Officer, about there being mark of violence, as noticed earlier, has also lent assurance to the prosecution version. Identification of the Appellant is writ large in view of evidence of house inmates for identifying him in the flash of torch light held by the miscreants, and for that evidence of P.Ws. 1, 3 and 4 can be referred to. The miscreants, it would appear from evidence of P.Ws. 1, 2 and 4 were fourteen or fifteen in number and hence trial of Appellant alone had not introduced legal infirmity in recording conviction u/s 395 IPC. This fact, however, cannot be lost sight of that the occurrence took place in the year 1998 and the Appellant had been in custody for about 4 years. Hence regard being had to the nature of accusation and also mitigating circumstances, while upholding finding of guilt recorded by the Court below, sentence is reduced to five years and with this modification in sentence, this appeal is dismissed.
