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2002 DIGILAW 375 (PAT)

Sonu Mandal v. State Of Bihar

2002-03-20

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. All the appellants have been convicted under section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 2. Prosecution case, in short, is that on 22nd/23rd April, 1988, in the night while the informant Bhathu Chunihar was sleeping along with his family members he got up on the sound of barking of dogs. When he came out in his courtyard he saw a person on the northern wall who pointed a pistol and started abusing him and asked to keep quiet. The informant identified the person who was near the wall was appellant Sonu Mandai. It has been stated that three more associates of appellant Sonu jumped in the courtyard and the informant rushed towards a room to hide himself and when he wanted to close the door, the miscreants put three pistols between the two planks of the door to prevent closure of the door. As such the informant could not close the door but he pulled out a pistol from them and gave the pistol blow on the miscreants as a result of which one of the miscreants fell down on the ground. The informant identified appellant Paddu Mandai amongst the miscreants in the light of electric bulb. Thereafter he again saw two dacoits standing at the door and one of them had two barrel gun with him wrapped in a cloth and he was identified by Bhathu Chunihar to be Lakhan Mandai of village Bhairopur. Appellant Lakhan Mandai opened fire on Tuni Das cousin of the informant. Thereafter the informant managed to escape and raised alarm in the village. When the dacoits fled away he came back and learned from his wife Sita Devi (P.W. 4) that the dacoits had also assaulted her and were asking for the key of Godrej Almirah and she identified Raju Mandai amongst the dacoits. The dacoits also removed a Television of Weston Company, a sewing machine, a table fan and two boxes containing clothes and ornaments belonging to the family members. It has been stated that in the box Rs. 4000/- were also kept which belonged to the daughter of the informant. Thereafter Fardbeyan of the informant was recorded and after completion of investigation charge sheet was submitted against the accused persons. It has been stated that in the box Rs. 4000/- were also kept which belonged to the daughter of the informant. Thereafter Fardbeyan of the informant was recorded and after completion of investigation charge sheet was submitted against the accused persons. Accordingly cognizance was taken and the case was committed to the court of Sessions where the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether six witnesses. P.W. 1 is Govind Chunihara, P.W. 2 is Surshyam Das, son of the informant, P.W. 3 is Yashoda Devi, daughter of the informant, P.W. 4 is Sita Devi wife of the informant, P.W. 5 is Bhathu Chunihar, informant and P.W. 6 is a formal witness who has proved the case diary. 4. P.W. 5 the informant has fully supported the case of the prosecution as stated in his Fardbeyan. According to him on 22nd/23rd April, 1988 while he was sleeping along with his wife he woke up on the sound of barking of dogs. When he came out in the courtyard along with his wife he noticed one person on the northern wall in the light of electricity and he identified him as appellant Sonu Mandal. He has stated that the miscreant having pistol jumped in the courtyard along with his three associates. Having seen the miscreants he rushed to his room and wanted to close the door but the dacoits inserted pistol between the planks of door, as such, he could not close the door. According to him, he pulled out a pistol from one of them and gave a pistol blow on one of the miscreants who fell down on the ground. He also claimed to have identified appellant Paddu Mandal among them. According to him, he wanted to escape but they gave a pistol blow from back and he sustained injury on his hand. According to him, when he came out side the house he saw two persons, one of them was carrying double barrel gun wrapped in a cloth and he identified one of them as Lakhan Mandal (appellant). According to him, he wanted to escape but they gave a pistol blow from back and he sustained injury on his hand. According to him, when he came out side the house he saw two persons, one of them was carrying double barrel gun wrapped in a cloth and he identified one of them as Lakhan Mandal (appellant). When the miscreants opened fire he rushed towards village and raised alarm and when he came back along with the villagers he found his wife unconscious who disclosed that the miscreants had assaulted her and had taken away T.V., sewing machine, two boxes containing clothes, cash arid ornaments. P.W. 1 has supported the factum of dacoity but he did not identify the dacoits. P.W. 2 has also supported the case of the prosecution as stated by P.W. 5. According to him, he identified appellant Lakhan Mandal. P.W. 3 has also supported the factum of dacoity but did not identify any of the dacoits. P.W. 4 the wife of the informant has also supported the version of the informant and has stated that the dacoits had assaulted her and had taken away the articles kept in her room. She identified one of the co-accused Raju Mandal. 5. Learned counsel appearing on behalf of the appellants submitted that there are contradictions in the deposition of the witnesses and in this case the investigating officer and the doctor who examined the injured P.W. 4 both have not been examined. If the investigating officer had been examined he would have stated to have seen the marks of violence on the planks of the door and also stains of blood on the place of occurrence. It has been further submitted that alt the witnesses are partisan witnesses and no Independent witness has been examined. 6. However, the prosecution has established the factum of dacoity in the house of the informant in which these appellants were identified by the informant and his son P.W. 2. As many as four witnesses have supported the factum of dacoity. However, on the point of identification P.Ws. 3 and 4 could not identify any of the appellants. P.Ws. 2 and 5 only identified appellant Lakhan Mandal. P.W. 5 was steeping in his room and got up on Hulla and had enough opportunity to encounter with the dacoits since he tried to close the door and the dacoits forced the door opened. 3 and 4 could not identify any of the appellants. P.Ws. 2 and 5 only identified appellant Lakhan Mandal. P.W. 5 was steeping in his room and got up on Hulla and had enough opportunity to encounter with the dacoits since he tried to close the door and the dacoits forced the door opened. P.W. 2 was sleeping in another room. He got up and went inside the room and identified appellant Lakhan Mandal. These appellants have been also named in the first information report. The Fardbeyan of the informant was recorded soon after the occurrence. Apparently there is no enmity between the appellants and the informant. The submission of the learned counsel is that the I.O. was not examined and if he would have been examined he would have given the material description of the place of occurrence. But in this case all the inmates are natural and competent witnesses. As such, their testimony on the factum and manner of occurrence cannot be disbelieved. Only on the ground that the I.O. was not examined the case of the prosecution cannot be discarded in face of testimony of eye witnesses. I do not find any reason to interfere with the findings of the court below. However, there is only one identification against appellant no. 1. Sonu Mandal and appellant no. 2, Paddu Mandal. As such, it will not be safe to convict these appellants on single identification. Therefore, they deserve benefit of doubt. Accord ingly they are acquitted of the charge levelled against them. So far appellant No. 3, Lakhan Mandal is concerned, in the facts and circumstances of the case I am of the view that it will be expedient in the interest of justice if his sentence of seven years is reduced to three years. Accordingly, appellant Lakhan Mandal is sentenced to undergo rigorous imprisonment for three years instead of seven years. In the result, the appeal against appellants Sonu Mandal and Paddu Mandal is allowed and the appeal against Lakhan Mandal is dismissed with the aforesaid modification in his sentence.