JUDGMENT
1. There are three appellants in Cr. Appeal No. 120/94, namely, Adan Mandal, Mohi Mandal and Basant Mandal. They are all residents of P.S. Sultanganj, district Bhagalpur. There are six appellants in Cr. Appeal No. 139/94. Appellant No. 2, Dhiro Mandal and appellant No. 6, Anandi Mandal died during the pendency of this appeal and therefore, their appeal stands abated. All the appellants of this appeal are residents of Nawada, P.S. Tarapur, district Munger. The appellants of both the appeals were charged and tried for the offence punishable under Section 396, IPC and have been found guilty by the lstAddl. Sessions Judge, Banka, they have been sentenced to undergo rigorous imprisonment for life. The only distinction between these two appeals is that all the appellants of Cr. Appeal No. 120/94 are named in the FIR, while none of the appellants of Cr. Appeal No. 139/94 are named in the FIR. They have been named subsequently by some of the prosecution witnesses during investigation.
2. The occurrence leading to the trial and conviction of the appellants took place on 20/21st March, 1975 in village Barait, (Chatma) about three kms. from Shambhuganj police station, close to the State Highway. The villagers were celebrating Holi festival as it was the day of Holi. The villagers had collected at the house of Atul Singh to Sing Holi. The villagers who had assembled at the house dispersed at about 1 a.m. Atul Singh and his brother Sahdeo Singh were sitting at their ‘Darwaza and suddenly 25 dacoits raided their house. There was an electric bulb glowing. Some of the dacoits were armed with pistols and they were also carrying electric torches. They told Atul Singh and Sahdeo Singh not to raise alarm otherwise they would be killed. The dacoits also abused the two brothers. They asked Atul to go inside the house and show where the money was kept. Atul Singh, however, refused to oblige them and replied that they have no money. They could go and take whatever they like. Thereupon one of the dacoits struck with ‘lathi’ on the head. The four dacoits who were possessing arms stood guarding at the entrance which was an open door. The other dacoits entered the house and started ransacking the house and also assaulting the inmates of the house. The dacoits after completing the operation were about to leave the house, but in the meantime the villagers rushed there on ‘Hulla’. Sahdeo Singh and Atul Singh chased the dacoits. Thereupon the dacoits opened fire on them. Sahdeo Singh received bullet injury on the right hand and abdomen. Atul Singh also received gun shot injury. One Arun Kumar Singh, relation of Sahdeo Singh was also hit by gun shot and became unconscious. The dacoits also assaulted the sons of Sahdeo Singh.
3. The first report of the occurrence was given by Serveshwar Pd. Singh, P.W. 18, at Shambhuganj Police station at about 4 a.m. on the same day. Serveshwar Singh lived in the adjacent house and had rushed to the place of occurrence on hearing ‘Hulla’. According to the first version the three appellants named in the FIR were made accused. The second account of the occurrence was given by Sahdeo Singh at Bhagalpur hospital to S.I. Ram Chandra Prasad, who was attached to Kotwali police station. He was probably not aware that FIR had already been lodged at Shambhuganj Police station. However, the statement given by Sahdeo Singh was forwarded to Shambhuganj Police station. Sahdeo Singh stated that he could not identify any of the dacoits. Sahdeo Singh and Atul Singh who had received serious gun-shot injuries died after few days at Bhagalpur hospital. Thakur Ram Chandra Singh, Officer-incharge of Shambhuganj police station on the material day, recorded the fardbeyan of Sarweshwar Singh and registered a case against the named accused under Section 395, IPC. He reached the village at 5-30 a.m. and inspected the house of Atul Singh. The house of Atul Singh was close to Asarganj Shambhuganj Road. The names of the appellants who were not named in the FIR came to light during investigation after two villagers, namely, Sudhakar and Shanker who had brought Mohit, gave their statement. Appellant, Mohi Mandal was arrested by the villagers after chase. There is no evidence as to when and where he was actually caught by the villagers. Mohi Mandal was produced before the Investigating Officer and gave his confessional statement, implicating six appellants of Cr. Appeal No. 139/94 and others who were not named in the FIR.
4. All the appellants have been convicted and sentenced on the basis of the evidence of the prosecution witnesses, who had seen the occurrence and claimed to have identified the appellants in the electric light.
5. Mr. Raj Kumar, learned counsel in Cr. Appeal No. 120/94, has argued the appeal as amicus curiae. He largely based his submission on the dying declaration of Sahdeo Prasad Singh, Ext. 11 which has been proved-by Ramchandra Prasad, S.I. of Kotwali Police station. Learned counsel has made forceful submission highlighting the dying declaration of Sahdeo Pd. Singh and contended that since Sahdeo Prasad Singh has failed to identify any of the dacoits, it was not possible to accept the evidence of other witnesses, who claimed to have identified the dacoits by name. In our opinion, the contention of the learned counsel that only because Sahdeo Pd. Singh could not identify the dacoits, the other witnesses also must have failed to identify the dacoits when the occurrence took place in the night, cannot be accepted. According to the post mortem report, the age of Sahdeo Prasad Singh was about 70 years. This may be the reason that he could not identify the dacoits.
6. Mr. Bamdeo Pandey, learned counsel for the appellants in Cr. Appeal No. 139/94, has argued that since the six appellants in this appeal were not named in the FIR although they were known to the witnesses, the case against these appellants must fail. Mr. Pandey, submitted that the appellants who were not named in the FIR were implicated after appellant Mohi Mandal gave his confessional statement before the Investigating Officer. At this stage, it would be appropriate to consider the precise evidence with regard to the identification. It may be recalled that Atul Singh who is the main witness of the case and who claimed to have identified all the dacoits was not available at the village when the Investigating Officer visited the village in the morning of 21st March, 1975. The statement of Atul Singh was recorded on the next day at the Bhagalpur Hospital. The Investigating Officer had also tried to examine Sahdeo Prasad Singh, but his statement could not be recorded as he was unconscious. There is however, no evidence to the effect that he remained unconscious till his death. Thakur Ramchandra Prasad recorded the statement of Sahdeo Singh, but he has not stated as to why he could not record the statement of Atul Singh, though the injury report was prepared by him. This may be because he was not investigating the case. It was desirable that he should have taken the statement of Atul Prasad Singh and it was expected that Atul Singh would have volunteered to give his statement.
7. Atul Singh, P.W. 1 was an inmate of the house where dacoity was committed. He was also injured. He was assaulted by the dacoits. He identified Wakil Mandal who had assaulted him. He also identified Basant Mandal, Dhiro Mandal, Hari Mandal, Anandi Mandal and Jaldhar Mandal. Sahdeo Singh was assaulted by Shiro Mandal. He has given the details of neighbouring village and the relationship between the accused persons. Shankar Prasad Singh, P.W. 3 and Gobardhan Prasad Singh, P.W. 6 claimed to have identified the accused, Mohi Mandal, Basant Mandal, Adan Mandal and Dhiro Mandal. Kisto Prasad Singh, P.W. 10, another inmate of the house in which dacoity was committed had identified Basant Mandal, Mohi Mandal, Adan Mandal and Janardan Mandal. He has given details of the dress put on by the dacoits. P.W. 13, Ram Jatan Singh, a teacher had identified Hari Mandal, Dhiro Mandal and Huro Mandal in the light. He also identified Anandi Mandal Mahendra Mandal, Jaldhar Mandal, Wakil Mandal, Basant Mandal, Adan Mandal, Mohi Mandal and Janardan Mandal. Dhiro Mandal had shot Sahdeo Singh. His nephew, Arun Kumar Singh was shot by Hari Mandal. P.W. 14, Kapileshwar Prasad Singh had identified Dhiro Mandal, Hari Mandal, Basant Mandal, Adan Mandal, Mohi Mandal and Janardan Mandal.
8. The learned trial Judge discussed the entire evidence available on record. He recorded a finding that there was ample materials on record to show that dacoity in the house of Atul Prasad Singh, P.W. 1 took place in the manner alleged and in course of commission of dacoity Sahdeo Singh and Atul Prasad Singh were shot and injured. Sahdeo Prasad Singh and Arun Kumar Singh succumbed to their injuries. Some of the prosecution witnesses have failed to examine some of the dacoits in Court but the trial Court have accepted the prosecution version.
9. The learned trial Judge has considered the submission on behalf of the accused persons that Sahdeo Prasad Singh had not identified any of the dacoits and in the First Information Report also four persons have been named. Name of nine accused persons were subsequently added. This contention was rejected by the learned trial Judge. The learned Judge has observed that –
…It is clear from the evidence available on the record that all of a sudden, during the dead of night, 20-25 dacoits ransacked the entire house of Atul Pd. Singh. Their presence became known only when they managed their entry inside the house and it is also clear that all of them were not at the same place rather according to their operation plan, they had scattered at different places. The witnesses reached from different directions and remained there due to the fear of the dacoits, who were holding firearm and terrorising the outsiders. Thus, the witnesses, who came at the darwaja, identified the dacoits, who were present and guarding at the darwaja and the other witnesses, who subsequently reached and moved in all directions, identified all the dacoits. The failure of Sahdeo Singh to identify any of the dacoits will not make any doubt about the identification disclosed by other P.Ws. Afterall the whole operation took place during the night and the only means of identification was the electric light burning outside the house as well as inside the house. The dacoits, who came near the light, became identified by the P.Ws.
The means of identification was there. It is consistent case of the prosecution that a bright electric light was burning at the darwaja as well as inside the house. The P.Ws. also have claimed to identify the dacoits in that light. The learned lawyer appearing on behalf of the defence has not challenged the means of identification in course of argument.
The learned trial Judge has given cogent reasons for accepting the evidence of the prosecution witnesses regarding identification of the culprits.
10. The three appellants in Cr. App. No. 120/94 are named in the FIR along with one Janardan Mandal who could not be tried as he is absconded. The argument of Sri Pandey is that the name of the appellants in Cr. App. No. 139/94 was revealed after the confessional statement of Mohi Mandal appears to be attractive in the first blush but on close scrutiny of the evidence the argument does not hold good. It is not disputed that the witnesses who claim to have identified the six appellants in Cr. App. No. 139/94 had named them before the police immediately after the occurrence. The learned trial Judge, who had opportunity of mark the demeanour of the witnesses held that the witnesses were reliable and trustworthy.
11. We have examined the evidence and we are satisfied that the trial Court came to a right conclusion. The witnesses have given the evidence straightforward manner. The witnesses have given the detail narrative of the events.
12. Informant identified all the three accused persons named in the FIR in Cr. App No. 120/94. On careful examination of the evidence we find that there is overwhelming evidence against the appellants that they had committed dacoity with murder in the house as deposed by numerous witnesses.
13. In the result, both the appeals are dismissed and the conviction of the appellants, except, Hari Mandal and Anandi Mandal, is confirmed. The appellants, who are on bail, shall surrender before the trial Court to serve out the remaining sentence within three months, failing which the trial Court shall take all coercive steps for their arrest and their bail bonds are cancelled.
D.P.S. Choudhary, J.
14. I agree.