Criminal Appeal No.192 of 1996
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Against the judgment of conviction and order of sentence dated 30.7.1996
passed by Shri Mahesh Prasad Tiwari, 5th Additional Sessions Judge, Dumka
in Sessions Trial No. 209 of 1995.
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1. Rabi Dan.
2. Guddi Mandal
-------Appellants
-Versus-
The State of Bihar (now Jharkhand) ------- Respondent.
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For the Appellants : M/s. Vishnu Kumar Sharma
Sunil Kumar Sinha
For the Respondent : Mr. Amaresh Kumar, A.P.P.
-------
PRESENT
THE HON'BLE MR JUSTICE PRADEEP KUMAR
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By Court: The appeal is directed against the judgment of conviction
and sentence dated 20.7.1996 passed by Shree Mahesh Prasad Tiwari,
5th Additional Sessions Judge, Dumka in Sessions Trial No. 209 of
1995 by which judgment the learned Additional Sessions Judge found
the appellants guilty under Section 395 of the Indian Penal Code and
convicted them thereunder and sentenced them to undergo R. I. for 5
years under Section 395 of the Indian Penal Code.
2. The prosecution case was started on the basis of the first
information report given by Parmeshwar Mandal on 6.3.1995 at 8.30
hrs. at his Kirana Shop, Sarsabad (Maharo). He stated that on
5.3.1995 i.e. Sunday at 9 P.M. in the night when after closing the shop
he was sleeping inside the shop with his wife, Sumati Devi. Then at
about 2 A.M. on the door of the shop somebody started knocking the
door with stone and a log of Kathal tree about 2″ diameter and 4″ long
He and his wife started shouting for help out of fear, but nobody came
from the village. Lastly, the door was broken from the Kabja and
accused, Rabi Dan son of Haripada Dan of village Maharo, Guddi
Mandal son of Badri Mandal of village Sarsabad and Chhotelal
Mandal son of Late Kartick Mandal of village Maharo, entered into
the shop with Chura and torch light in their hand and pushed him and
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his wife from their cot, they fell down on the ground. Thereafter the
accused, Guddi Mandal snatched the Golden Makari (earing) worth of
Rs. 700/- and silver chain from her neck worth of Rs. 200/-. from the
person of his wife. Thereafter, they asked them to close their eyes.
Her wife was bleeding from her ear. Since, they threatened to assault
by Chura, hence, they closed their eyes out of fear. Thereafter, all the
three accused persons looted articles such as (i) sugar 50 kg., worth of
Rs. 600/- (ii) rice 50 kg. worth of Rs. 350/- (iii) coconut oil 5 kg.
worth of Rs. 250/- (iv) biscuit 3 cartoon worth of Rs. 300/- (v)
mustered oil ( Gopal Tin) 5 kg. worth of Rs. 200/- (vi) masur dal 10
kg worth of Rs. 150/- (vii) chura 5 kg. worth of Rs. 40/- (viii) egg 20
piece worth of Rs. 30 (ix) life boy soap 24 piece worth of Rs. 72 (x)
Nirma bath soap 4 pieces worth of Rs. 20/- (xi) Nirma Beauty soap 8
pieces worth of Rs. 40/- (xi) kurkuri biscuit 5 kg. worth of Rs. 50/-
(xii) dalmot 5 packet 50gm. worth of Rs. 135/- (xiii) open dalmot 2
kg. worth of Rs. 36/- (xi) Chota tea 1 kg. worth of Rs. 50/- (xv) murga
soap 24 pieces worth of Rs. 42/- (xvi) parag soap 12 pieces, sona soap
12 pieces worth of Rs. 128/- (xvii) jira + goalki 1 kg. worth of Rs. 90/-
(xviii) bidi 5000 pieces worth of Rs. 200/- (ix) patromax FR worth of
Rs. 200/- (xx) degatoo worth of Rs. 1350/- (xxi) wall watch 1 piece
worth of Rs. 150/- (xxii) kanta(small) 2kg. to 5 gm and Rs. 60 cash.
When they were breaking the door of the shop they saw 7 to 8 persons
are standing outside. He stated that the dacoits standing outside were
wearing phulpaint, shirt, half paint, black coloured ganji. All the
accused persons were of samla colour, aged about 25-30 years having
lathi and torch in their hand. Rabi Dan was wearing black coloured
shirt and katha coloured ‘phulpaint’. Chhotelal Mandal was wearing
matmaila coloured paint and black coloured shirt. Guddi Mandal was
wearing half paint and black coloured bushirt. All of them had closed
their head by black coloured cloth and they were wearing black
coloured round cap. He alleged that the dacoits have looted goods
worth of Rs. 4,933/-.
3. On the basis of the aforesaid fardbeyan police registered a case
under Section 395 of the Indian Penal Code and after investigation
submitted charge-sheet against three accused persons named in the
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fardbeyan. Accordingly, the accused persons were taken cognizance
under Section 395 of the Indian Penal Code and since the case was
exclusively triable by court of Sessions and the same was committed
to the court of Sessions where the trial was held as aforesaid and all
the three accused persons were charged as stated above.
4. It is submitted by the learned counsel for the appellants that the
entire prosecution case is false, fabricated and not believable. The
prosecution has examined only interested witnesses, namely,
informant-wife and two sons. None of the villagers come to support
the prosecution case and hence the entire prosecution case is doubtful.
He has further submitted that the prosecution’s version is doubtful
because the prosecution stated that they were sleeping inside the shop
on cot. The Investigating Officer found no cot inside the shop.
Moreover, the witnesses have stated that they had not disclosed the
name of the appellants, who are their neighbours and enmity from
before. The village witnesses had gathered immediately after the
occurrence and hence the prosecution case is doubtful. The case is
relied upon the decision reported in AIR 1989 S.C Page 1762 in the
case of Shiv Jee Dayanu Patil-Vs.- State of Maharashtra and in view
of the aforesaid discrepancies in the prosecution case the appeal is fit
to be allowed.
5. On the other hand, the learned counsel for the State has
submitted that the prosecution has examined all natural witnesses,
who were present at the time of occurrence and they cannot be
discarded. They were related to the informant and as such the
conviction and sentence is sustainable in law. No inference is
required by this Court.
6. After hearing both the parties and I have gone through the
record, I find that in course of the trial, the prosecution has examined
7 witnesses. P.W. 1, Lobin Mandal, is son of the informant. P.W. 2 is
Parmeshwar Mandal. P.W.3, Santosh Chalak, is villager. P.W.4,
Karoo Mandal, is another son of the informant, P.W. 5, Sumati Devi
is wife of the informant. P.W. 6 Mahendra Prasad Gupta is
Investigating Officer of the case. P.W. 7, Akla Kumar, is another
Investigating Officer of the case.
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7. The prosecution case has been disclosed by the evidence of
P.Ws. 1 and 2, who were present in the shop at the time of occurrence
when the alleged dacoity had taken place. P.W.2, Parmeshwar Mandal
supported the F.I.R. and stated that in the night of 5.3.1995 when he
was sleeping in his shop along with his wife then the three accused
persons Chhotelal Mandal, Rabi Dan and Guddi Mandal broke open
the door of the shop by log of kathal tree and when the door was
broken from the kabja they entered into the shop and they pushed
them from their cot on the ground. Thereafter, snatched Golden
Makri (earing) from the ear of his wife and also looted her silver chain
which she was wearing in her neck. They had chura and torchlight in
their hand. Thereafter they asked them to close their eyes. Out of fear
they closed their eyes then they took everything from his kirana shop
such as rice and kerosene oil, mustered oil etc. They had came with 4
to 5 persons but they could not identify them they took away even the
wall watch, radio, tap recorder etc. The looted articles worth of Rs.
5,000/- . He stated that on Hulla when the villagers came then he
stated about the occurrence to them in para 5. He stated that he had
gone to the police station at Jama but when he came to the shop then
the police took his statement. Thereafter, his statement was read over
to him then he signed the same finding it correct. He identified the
signature on the fardbeyan. At para 7 he stated that all the three
accused persons had closed their mouth from black cloth. He
identified the three accused persons in Court. In his cross-
examination, he stated that in front of his shop there is a shop of his
maternal uncle, Kishan Mandal and the shop of Bibhuti Sen. The
house of Sen is by the side of his house. He stated that his shop has
got one room and one baranda. He stated that inside the shop which is
north side abroad and east west long. He had put the cot by the side
of the door all the articles for selling were kept at Khatal inside the
shop. He had shown the Khatal to the Investigating Officer, which
was empty since everything was taken away. He had also shown the
broken kabja of the door to the Investigating officer. At para 1 he
stated that he had given the full statement to the Officer-in-Charge at
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the Thana. He heard the same and told him that he will come to the
shop. He also stated in para 17 that blood was oozing from the ear of
his wife and falling on her cloth. The Investigating Officer sent his
wife to the hospital. At para 18 of his cross-examination, he admitted
that villager, Manju Murmu had filed a case against his son in which
Chottelal Mandal had given evidence. He also admitted in para 19
that he had filed a case of assault against Chhtelal Mandal and Budhu
Mandal. There was 107 cases against them. He stated that he has got
no enmity with anybody in the village and he told about the
occurrence to the villagers. He stated that Chalak and Bangali had
come after the occurrence and also Binod Chalak came immediately
after the occurrence. At para 22 he admitted that the house of accused
Guri Mandal is 20 to 25 hand away from his house on the east.
Chhotelal Mandal’s house is at a distance of 40 to 50 hand from his
house and Ravi Da’s house is at a distance of 60 to 70 hand. In para
23 he denied that the wife of Guri Mandal was raped by his son Karo
Mandal for which a Panchyati was held in the village in which
Chhotelal Mandal and Ravi Da were panches and they had put find of
his son. P. W. 7 Logan Mandal son of informant, he stated that on the
date of occurrence of 5.3.1995 when his father and mother were
sleeping in the shop they had gone to the shop for giving a torch to
them in the night at 2 a.m. then he had seen three accused persons
roaming about near the shop. He had informed the Chaukidar. Ater
sometime he was informed that a dacoity had taken place in a shop.
He went to the shop then his father told him that dacoity was
committed by Guddi Mandal, Chhotelal Mandal and Rabi Dan. His
mother told him that Guddi Mandal also assaulted her on the hand and
snatched her gold earing and also snatched silver chain from her neck.
In his cross-examination, he stated that there are two brothers he and
Karo Mandal. In para 7 in his cross examination he admitted that
Manju Murmu in his village, had filed a case under Section 386 of the
Indian Penal Code, in which Chhotelal Mandal was witness. Chhotelal
Mandal and Jivan Mandal are own brothers, Guddi Mandal is the
cousin brother of Chhotelal Mandal. His father had filed a case against
Chhotelal Mandal and Guddi Mandal, which is pending before the
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learned Sessions Judge. He also stated in para 9 that he had
seen his mother’s ear bleeding. He had also seen door of the shop
broken. At para 11 he stated that Dhiran Chalak informed him about
the dacoity in his shop. Dhiran Chalak had come along with Santosh
Narain and others. In para 12 he admitted that panchyati had taken
place in the village with regard to the Guddi’s wife and his brother
Karo Mandal in which his brother was found accused. Houses of the
accused, Rabi Dan are by the side of his house. P.W.5 is Sumati Devi
wife of the informant. She also supported the statement given in the
fardbeyan that dacoity took place in the shop where they were
sleeping on cot. Three accused persons entered into the shop by
breaking the door and when the door was broken from the kabja
pushed her down from the cot and thereafter they snatched gold
Makari from her ear and silver chain from her neck. Thereafter they
asked them to close her eyes and took all the goods kept in the shop in
six bags including soap, sugar, biscuit etc. The accused, Guddi
Mandal gave him lathi blow. At para 5, in her cross-examination he
said that they had two cots in the shop they had taken their food in the
night in the shop itself and slept thereafter, at about 9 pm. At para 8
she stated that the Daroga came on the next date at 8 a.m. In the same
para also stated that the villager came after the dacoity, but she had
not given the name of the accused persons to them. She stated that
although she was bleeding from ears, but she had not given the blood
stained and clothes to the Investigating Officer. She admitted in para
10 that Manju Murmu had lodged a case against her son in which
Chhotelal Mandal is witness.
8. Thus, after going through the evidence of all the three
witnesses, it is apparent that (i) They were old enmity between the
informant’s family and three accused persons; (ii) Their houses are in
the same village at a distance of few hands: (iii) It was admitted by
P.W.1 that Manju Murmu has filed a case against informant Karo
Mandal son of the informant in which Chhotelal Mandal is witness:
(iv) It is also admitted that son of informant Karo Mandal alleged to
have committed rape on wife of Guddi Mandal for which a Panchyati
was held and in that Panchyati Chhotelal Mandal and Rabi Dan were
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panches and his son was found guilty. All these admitted facts prove
that the informant and his family member had sufficient ground for
falsely implicating the three accused persons, who are their next door
neighbours. Wife of the informant, P.W. 5 very clearly stated in her
evidence at para 8 of her cross-examination, that immediately after the
occurrence all the villagers came but she had not disclosed the name
of the three accused persons, which also grave doubt in the
prosecution case as has been held in the case of Shiv Jee Dayanu
Patil-Vs.- State of Maharashtra reported in AIR 1989 S.C Page 1762.
9. The prosecution case became more doubtful in view of the fact
that the informant himself admitted in para 5 of his evidence that the
immediately after the occurrence he had gone to the police station at 5
a.m. and stated about the occurrence to him, but his statement was not
recorded by the Investigating Officer. At para 16 in detail he stated
that he had given full statement to him at the police station, but he
failed to record the same and told him that he will come to his shop at
8 pm then he recorded his statement which was taken down by him.
This statement of the informant is more doubtful because as relied by
the learned counsel for the appellant in the case of State of Andhra
Pradesh-Vs.- Punati Ramulu reported in AIR 1993 SC page 2644;
the Hon’ble Supreme Court has ruled that if the Investigating Officer
deliberately does not record the F.I.R. after getting information of the
cognizable offence and instead registered the F.I.R. after reaching the
spot and after due deliberations, consultation and discussions the
subsequent statement recorded will be hit under Section 162 Cr. P. C.
In this case also admittedly as per the statement of the informant he
gave full statement of the occurrence at the police station, but the
same was not recorded by the Investigating Officer and the same was
recorded by him in evening at 8 pm and hence the F.I.R. registered
itself is hit by section 162 Cr. P.C. The statement of the Investigating
Officer, P.W. 7, makes the prosecution case more doubtful; the
Investigating Officer has stated in his examination-in-chief at para 2
that shop in which it is said that the informant was sleeping with is
wife and in which the goods were also kept was only 11 hand long
and 5 hand broad. In that case two cots cannot fit this small room of
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11×5 hand. He also admitted that he found no cot in the shop at para
7 he stated that he had not found breaking of the door of the shop.
10. Thus, the evidence of the Investigating Officer, P.W. 7
makes the prosecution case more doubtful and improbable and proves
that a false case was lodged to falsely implicate the neighbours, who
were on inimical term with the informant family from before and that
is why not a single villager, who came immediately after the
occurrence as per the evidence of P.Ws. 1 , 2 and 5, were examined by
the prosecution.
11. Thus, after considering the evidences as aforesaid and the
settled principle of law as discussed above, I find that the entire
prosecution case is false, fabricated and cannot be accepted. The
prosecution has miserably failed to bring the charge beyond
reasonable doubt.
12. Accordingly, the appeal is allowed and the judgment of
conviction and sentence by the trial court is set aside.
13. Since the appellants are already on bail. They are discharged
from the liability of thier bail bond.
( Pradeep Kumar, J)
Jharkhand High Court, Ranchi
The 17.2.2009
JK/NAFR