{"id":70221,"date":"2009-02-17T00:00:00","date_gmt":"2009-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rabidan-ors-vs-state-on-17-february-2009"},"modified":"2017-11-23T14:17:24","modified_gmt":"2017-11-23T08:47:24","slug":"rabidan-ors-vs-state-on-17-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rabidan-ors-vs-state-on-17-february-2009","title":{"rendered":"Rabidan & Ors. vs State on 17 February, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Rabidan & Ors. vs State on 17 February, 2009<\/div>\n
                   Criminal Appeal No.192 of 1996\n                                ---\nAgainst the judgment of conviction and order of sentence dated 30.7.1996\npassed by Shri Mahesh Prasad Tiwari, 5th Additional Sessions Judge, Dumka\nin Sessions Trial No. 209 of 1995.\n                                  ------------\n\n1. Rabi Dan.\n2. Guddi Mandal\n                                                           -------Appellants\n                                -Versus-\nThe State of Bihar (now Jharkhand)       -------                  Respondent.\n\n                                   ---------\nFor the Appellants               :      M\/s. Vishnu Kumar Sharma\n                                        Sunil Kumar Sinha\nFor the Respondent               :      Mr. Amaresh Kumar, A.P.P.\n                                    -------\n                                 PRESENT\n\n            THE HON'BLE MR JUSTICE PRADEEP KUMAR\n                             ----\n\nBy Court:            The appeal is directed against the judgment of conviction<\/pre>\n
      and sentence dated 20.7.1996 passed by Shree Mahesh Prasad Tiwari,
\n      5th Additional Sessions Judge, Dumka in Sessions Trial No. 209 of
\n      1995 by which judgment the learned Additional Sessions Judge found
\n      the appellants guilty under Section 395 of the Indian Penal Code and
\n      convicted them thereunder and sentenced them to undergo R. I. for 5
\n      years under Section 395 of the Indian Penal Code.\n<\/p>\n
      2.             The prosecution case was started on the basis of the first
\n      information report given by Parmeshwar Mandal on 6.3.1995 at 8.30
\n      hrs. at his Kirana Shop, Sarsabad (Maharo).          He stated that on
\n      5.3.1995 i.e. Sunday at 9 P.M. in the night when after closing the shop
\n      he was sleeping inside the shop with his wife, Sumati Devi. Then at
\n      about 2 A.M. on the door of the shop somebody started knocking the
\n      door with stone and a log of Kathal tree about 2″ diameter and 4″ long
\n      He and his wife started shouting for help out of fear, but nobody came
\n      from the village. Lastly, the door was broken from the Kabja and
\n      accused, Rabi Dan son of Haripada Dan of village Maharo, Guddi
\n      Mandal son of Badri Mandal of village Sarsabad and Chhotelal
\n      Mandal son of Late Kartick Mandal of village Maharo, entered into
\n      the shop with Chura and torch light in their hand and pushed him and
\n                                  -2-<\/span>
\nhis wife from their cot, they fell down on the ground. Thereafter the
\naccused, Guddi Mandal snatched the Golden Makari (earing) worth of
\nRs. 700\/- and silver chain from her neck worth of Rs. 200\/-. from the
\nperson of his wife. Thereafter, they asked them to close their eyes.
\nHer wife was bleeding from her ear. Since, they threatened to assault
\nby Chura, hence, they closed their eyes out of fear. Thereafter, all the
\nthree accused persons looted articles such as (i) sugar 50 kg., worth of
\nRs. 600\/- (ii) rice 50 kg. worth of Rs. 350\/- (iii) coconut oil 5 kg.
\nworth of Rs. 250\/- (iv) biscuit 3 cartoon worth of Rs. 300\/- (v)
\nmustered oil ( Gopal Tin) 5 kg. worth of Rs. 200\/- (vi) masur dal 10
\nkg worth of Rs. 150\/- (vii) chura 5 kg. worth of Rs. 40\/- (viii) egg 20
\npiece worth of Rs. 30 (ix) life boy soap 24 piece worth of Rs. 72 (x)
\nNirma bath soap 4 pieces worth of Rs. 20\/- (xi) Nirma Beauty soap 8
\npieces worth of Rs. 40\/- (xi) kurkuri biscuit 5 kg. worth of Rs. 50\/-\n<\/p>\n
(xii) dalmot 5 packet 50gm. worth of Rs. 135\/- (xiii) open dalmot 2
\nkg. worth of Rs. 36\/- (xi) Chota tea 1 kg. worth of Rs. 50\/- (xv) murga
\nsoap 24 pieces worth of Rs. 42\/- (xvi) parag soap 12 pieces, sona soap
\n12 pieces worth of Rs. 128\/- (xvii) jira + goalki 1 kg. worth of Rs. 90\/-
\n(xviii) bidi 5000 pieces worth of Rs. 200\/- (ix) patromax FR worth of
\nRs. 200\/- (xx) degatoo worth of Rs. 1350\/- (xxi) wall watch 1 piece
\nworth of Rs. 150\/- (xxii) kanta(small) 2kg. to 5 gm and Rs. 60 cash.
\nWhen they were breaking the door of the shop they saw 7 to 8 persons
\nare standing outside. He stated that the dacoits standing outside were
\nwearing phulpaint, shirt, half paint, black coloured ganji. All the
\naccused persons were of samla colour, aged about 25-30 years having
\nlathi and torch in their hand. Rabi Dan was wearing black coloured
\nshirt and katha coloured ‘phulpaint’. Chhotelal Mandal was wearing
\nmatmaila coloured paint and black coloured shirt. Guddi Mandal was
\nwearing half paint and black coloured bushirt. All of them had closed
\ntheir head by black coloured cloth and they were wearing black
\ncoloured round cap. He alleged that the dacoits have looted goods
\nworth of Rs. 4,933\/-.\n<\/p>\n
3.    On the basis of the aforesaid fardbeyan police registered a case
\nunder Section 395 of the Indian Penal Code and after investigation
\nsubmitted charge-sheet against three accused persons named in the
\n                                  -3-<\/span>
\nfardbeyan. Accordingly, the accused persons were taken cognizance
\nunder Section 395 of the Indian Penal Code and since the case was
\nexclusively triable by court of Sessions and the same was committed
\nto the court of Sessions where the trial was held as aforesaid and all
\nthe three accused persons were charged as stated above.\n<\/p>\n
4.    It is submitted by the learned counsel for the appellants that the
\nentire prosecution case is false, fabricated and not believable. The
\nprosecution has examined only interested witnesses, namely,
\ninformant-wife and two sons. None of the villagers come to support
\nthe prosecution case and hence the entire prosecution case is doubtful.
\nHe has further submitted that the prosecution’s version is doubtful
\nbecause the prosecution stated that they were sleeping inside the shop
\non cot.      The Investigating Officer found no cot inside the shop.
\nMoreover, the witnesses have stated that they had not disclosed the
\nname of the appellants, who are their neighbours and enmity from
\nbefore. The village witnesses had gathered immediately after the
\noccurrence and hence the prosecution case is doubtful. The case is
\nrelied upon the decision reported in AIR 1989 S.C Page 1762 in the
\ncase of Shiv Jee Dayanu Patil-Vs.- State of Maharashtra and in view
\nof the aforesaid discrepancies in the prosecution case the appeal is fit
\nto be allowed.\n<\/p>\n
5.    On the other hand, the learned counsel for the State has
\nsubmitted that the prosecution has examined all natural witnesses,
\nwho were present at the time of occurrence and they cannot be
\ndiscarded.     They were related to the informant and as such the
\nconviction and sentence is sustainable in law.        No inference is
\nrequired by this Court.\n<\/p>\n
6.    After hearing both the parties and I have gone through the
\nrecord, I find that in course of the trial, the prosecution has examined
\n7 witnesses. P.W. 1, Lobin Mandal, is son of the informant. P.W. 2 is
\nParmeshwar Mandal. P.W.3, Santosh Chalak, is villager.           P.W.4,
\nKaroo Mandal, is another son of the informant, P.W. 5, Sumati Devi
\nis wife of the informant. P.W. 6 Mahendra Prasad Gupta is
\nInvestigating Officer of the case. P.W. 7, Akla Kumar, is another
\nInvestigating Officer of the case.\n<\/p>\n
                                  -4-<\/span><\/p>\n
7.    The prosecution case has been disclosed by the evidence of
\nP.Ws. 1 and 2, who were present in the shop at the time of occurrence
\nwhen the alleged dacoity had taken place. P.W.2, Parmeshwar Mandal
\nsupported the F.I.R. and stated that in the night of 5.3.1995 when he
\nwas sleeping in his shop along with his wife then the three accused
\npersons Chhotelal Mandal, Rabi Dan and Guddi Mandal broke open
\nthe door of the shop by log of kathal tree and when the door was
\nbroken from the kabja they entered into the shop and they pushed
\nthem from their cot on the ground.        Thereafter, snatched Golden
\nMakri (earing) from the ear of his wife and also looted her silver chain
\nwhich she was wearing in her neck. They had chura and torchlight in
\ntheir hand. Thereafter they asked them to close their eyes. Out of fear
\nthey closed their eyes then they took everything from his kirana shop
\nsuch as rice and kerosene oil, mustered oil etc. They had came with 4
\nto 5 persons but they could not identify them they took away even the
\nwall watch, radio, tap recorder etc. The looted articles worth of Rs.
\n5,000\/- . He stated that on Hulla when the villagers came then he
\nstated about the occurrence to them in para 5. He stated that he had
\ngone to the police station at Jama but when he came to the shop then
\nthe police took his statement. Thereafter, his statement was read over
\nto him then he signed the same finding it correct. He identified the
\nsignature on the fardbeyan. At para 7 he stated that all the three
\naccused persons had closed their mouth from black cloth.             He
\nidentified the three accused persons in Court.           In his cross-
\nexamination, he stated that in front of his shop there is a shop of his
\nmaternal uncle, Kishan Mandal and the shop of Bibhuti Sen. The
\nhouse of Sen is by the side of his house. He stated that his shop has
\ngot one room and one baranda. He stated that inside the shop which is
\nnorth side abroad and east west long. He had put the cot by the side
\nof the door all the articles for selling were kept at Khatal inside the
\nshop. He had shown the Khatal to the Investigating Officer, which
\nwas empty since everything was taken away. He had also shown the
\nbroken kabja of the door to the Investigating officer. At para 1 he
\nstated that he had given the full statement to the Officer-in-Charge at
\n                                 -5-<\/span>
\nthe Thana. He heard the same and told him that he will come to the
\nshop. He also stated in para 17 that blood was oozing from the ear of
\nhis wife and falling on her cloth. The Investigating Officer sent his
\nwife to the hospital. At para 18 of his cross-examination, he admitted
\nthat villager, Manju Murmu had filed a case against his son in which
\nChottelal Mandal had given evidence. He also admitted in para 19
\nthat he had filed a case of assault against Chhtelal Mandal and Budhu
\nMandal. There was 107 cases against them. He stated that he has got
\nno enmity with anybody in the village and he told about the
\noccurrence to the villagers. He stated that Chalak and Bangali had
\ncome after the occurrence and also Binod Chalak came immediately
\nafter the occurrence. At para 22 he admitted that the house of accused
\nGuri Mandal is 20 to 25 hand away from his house on the east.
\nChhotelal Mandal’s house is at a distance of 40 to 50 hand from his
\nhouse and Ravi Da’s house is at a distance of 60 to 70 hand. In para
\n23 he denied that the wife of Guri Mandal was raped by his son Karo
\nMandal for which a Panchyati was held in the village in which
\nChhotelal Mandal and Ravi Da were panches and they had put find of
\nhis son. P. W. 7 Logan Mandal son of informant, he stated that on the
\ndate of occurrence of 5.3.1995 when his father and mother were
\nsleeping in the shop they had gone to the shop for giving a torch to
\nthem in the night at 2 a.m. then he had seen three accused persons
\nroaming about near the shop. He had informed the Chaukidar. Ater
\nsometime he was informed that a dacoity had taken place in a shop.
\nHe went to the shop then his father told him that dacoity was
\ncommitted by Guddi Mandal, Chhotelal Mandal and Rabi Dan. His
\nmother told him that Guddi Mandal also assaulted her on the hand and
\nsnatched her gold earing and also snatched silver chain from her neck.
\nIn his cross-examination, he stated that there are two brothers he and
\nKaro Mandal. In para 7 in his cross examination he admitted that
\nManju Murmu in his village, had filed a case under Section 386 of the
\nIndian Penal Code, in which Chhotelal Mandal was witness. Chhotelal
\nMandal and Jivan Mandal are own brothers, Guddi Mandal is the
\ncousin brother of Chhotelal Mandal. His father had filed a case against
\nChhotelal Mandal and Guddi Mandal, which is pending before the
\n                           -6-<\/span>
\nlearned Sessions Judge.      He also stated in para 9 that he had
\nseen his mother’s ear bleeding. He had also seen door of the shop
\nbroken. At para 11 he stated that Dhiran Chalak informed him about
\nthe dacoity in his shop. Dhiran Chalak had come along with Santosh
\nNarain and others. In para 12 he admitted that panchyati had taken
\nplace in the village with regard to the Guddi’s wife and his brother
\nKaro Mandal in which his brother was found accused. Houses of the
\naccused, Rabi Dan are by the side of his house. P.W.5 is Sumati Devi
\nwife of the informant. She also supported the statement given in the
\nfardbeyan that dacoity took place in the shop where they were
\nsleeping on cot. Three accused persons entered into the shop by
\nbreaking the door and when the door was broken from the kabja
\npushed her down from the cot and thereafter they snatched gold
\nMakari from her ear and silver chain from her neck. Thereafter they
\nasked them to close her eyes and took all the goods kept in the shop in
\nsix bags including soap, sugar, biscuit etc. The accused, Guddi
\nMandal gave him lathi blow. At para 5, in her cross-examination he
\nsaid that they had two cots in the shop they had taken their food in the
\nnight in the shop itself and slept thereafter, at about 9 pm. At para 8
\nshe stated that the Daroga came on the next date at 8 a.m. In the same
\npara also stated that the villager came after the dacoity, but she had
\nnot given the name of the accused persons to them. She stated that
\nalthough she was bleeding from ears, but she had not given the blood
\nstained and clothes to the Investigating Officer. She admitted in para
\n10 that Manju Murmu had lodged a case against her son in which
\nChhotelal Mandal is witness.\n<\/p>\n
8.    Thus, after going through the evidence of all the three
\nwitnesses, it is apparent that (i) They were old enmity between the
\ninformant’s family and three accused persons; (ii) Their houses are in
\nthe same village at a distance of few hands: (iii) It was admitted by
\nP.W.1 that Manju Murmu has filed a case against informant Karo
\nMandal son of the informant in which Chhotelal Mandal is witness:\n<\/p>\n
(iv) It is also admitted that son of informant Karo Mandal alleged to
\nhave committed rape on wife of Guddi Mandal for which a Panchyati
\nwas held and in that Panchyati Chhotelal Mandal and Rabi Dan were
\n                                 -7-<\/span>
\npanches and his son was found guilty. All these admitted facts prove
\nthat the informant and his family member had sufficient ground for
\nfalsely implicating the three accused persons, who are their next door
\nneighbours. Wife of the informant, P.W. 5 very clearly stated in her
\nevidence at para 8 of her cross-examination, that immediately after the
\noccurrence all the villagers came but she had not disclosed the name
\nof the three accused persons, which also grave doubt in the
\nprosecution case as has been held in the case of Shiv Jee Dayanu
\nPatil-Vs.- State of Maharashtra reported in AIR 1989 S.C Page 1762.\n<\/p>\n
9.    The prosecution case became more doubtful in view of the fact
\nthat the informant himself admitted in para 5 of his evidence that the
\nimmediately after the occurrence he had gone to the police station at 5
\na.m. and stated about the occurrence to him, but his statement was not
\nrecorded by the Investigating Officer. At para 16 in detail he stated
\nthat he had given full statement to him at the police station, but he
\nfailed to record the same and told him that he will come to his shop at
\n8 pm then he recorded his statement which was taken down by him.
\nThis statement of the informant is more doubtful because as relied by
\nthe learned counsel for the appellant in the case of State of Andhra
\nPradesh-Vs.- Punati Ramulu reported in AIR 1993 SC page 2644;
\nthe Hon’ble Supreme Court has ruled that if the Investigating Officer
\ndeliberately does not record the F.I.R. after getting information of the
\ncognizable offence and instead registered the F.I.R. after reaching the
\nspot and after due deliberations, consultation and discussions the
\nsubsequent statement recorded will be hit under Section 162 Cr. P. C.
\nIn this case also admittedly as per the statement of the informant he
\ngave full statement of the occurrence at the police station, but the
\nsame was not recorded by the Investigating Officer and the same was
\nrecorded by him in evening at 8 pm and hence the F.I.R. registered
\nitself is hit by section 162 Cr. P.C. The statement of the Investigating
\nOfficer, P.W. 7, makes the prosecution case more doubtful; the
\nInvestigating Officer has stated in his examination-in-chief at para 2
\nthat shop in which it is said that the informant was sleeping with is
\nwife and in which the goods were also kept was only 11 hand long
\nand 5 hand broad. In that case two cots cannot fit this small room of
\n                                               -8-<\/span>
\n     11×5 hand. He also admitted that he found no cot in the shop at para
\n     7 he stated that he had not found breaking of the door of the shop.\n<\/p>\n
     10.          Thus, the evidence of the Investigating Officer, P.W. 7
\n     makes the prosecution case more doubtful and improbable and proves
\n     that a false case was lodged to falsely implicate the neighbours, who
\n     were on inimical term with the informant family from before and that
\n     is why not a single villager, who came immediately after the
\n     occurrence as per the evidence of P.Ws. 1 , 2 and 5, were examined by
\n     the prosecution.\n<\/p>\n
     11.   Thus, after considering the evidences as aforesaid and the
\n     settled principle of law as discussed above, I find that the entire
\n     prosecution case is false, fabricated and cannot be accepted. The
\n     prosecution has miserably failed to bring the charge beyond
\n     reasonable doubt.\n<\/p>\n
     12.   Accordingly, the appeal is allowed and the judgment of
\n     conviction and sentence by the trial court is set aside.\n<\/p>\n
     13.   Since the appellants are already on bail. They are discharged
\n     from the liability of thier bail bond.\n<\/p>\n
                                              ( Pradeep Kumar, J)
\nJharkhand High Court, Ranchi
\nThe 17.2.2009
\nJK\/NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Rabidan & Ors. vs State on 17 February, 2009 Criminal Appeal No.192 of 1996 — 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. ———— 1. Rabi Dan. 2. Guddi Mandal ——-Appellants […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-70221","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nRabidan & Ors. vs State on 17 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rabidan-ors-vs-state-on-17-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rabidan & Ors. vs State on 17 February, 2009 - 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