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2003 DIGILAW 896 (JHR)

Madan Mandal v. State Of Bihar

2003-07-25

HARI SHANKAR PRASAD

body2003
JUDGMENT Hari Shankar Prasad, J. 1. This appeal is directed against the Judgment of conviction dated 14.10.1993 and order of sentence dated 16.10.1993 passed in Sessions Trial No. 291/93, whereby and where-under learned 3rd Additional Sessions Judge, Dumka (Santhal Pargana) held the appellants guilty under Section 395, IPC and sentenced them to undergo RI for ten years. 2. Prosecution case in brief is that in between the night of 25/26th January, 1992 at about 1 a.m. Madan Mandal. informant, lodged an FIR with Dumka (M) P.S. that at about 8 p.m. in the night he was sitting in the darwaja of Gujar Mandal, whose house is situated just in front of the house of the informant, when 3-4 persons came from western side with torch light in front of the darwaja then informant enquired as to who were there and then all the dacoits entered the house of the informant and started looting the articles and then informant and his son fled to the village and raised alarm. The villagers assembled in front of the house of the informant and Karu Mandal, son of the informant and another villagers started shooting arrows, whereupon dacoits whispered to hurry up and they explored bomb within 10 to 12 minutes. Dacoits after committing dacoity fled away and then informant entered the house and there he came to know that dacoits had carried away utensils, one HMT watch, ornaments, cash etc. from the house of the informant and wife of informant was found senseless on a cot and died within no time. The informant claimed to have seen the dacoits in the torch light and also claimed to identify them by their faces. On the basis of this piece of information, police registered a case under Section 396, IPC against unknown but in the course of investigation arrested some persons and put them on TIP and two of them were identified in TIP, who are appellants here. 3. After submission of charge-sheet cognizance was taken and case was committed to the Court of Sessions where charges were framed and the learned Court below, after taking evidence both oral and documentary, held the appellants guilty under Section 395, IPC and convicted and sentenced them to undergo RI for ten years. 4. Prosecution has altogether examined 7 witnesses. PW 1 is the informant Madan Mandal. 4. Prosecution has altogether examined 7 witnesses. PW 1 is the informant Madan Mandal. PW 1 has supported the case and stated in his evidence that he was sitting in front of the darwaja of Gujar Mandal and when he was gossiping with Gujar Mandal he saw some dacoits in the flash of torch light and enquired as to who were there then 3-4 dacoits entered his house. He fled away to the village and raised alarm and villagers assembled at the P.O. and thereafter dacoits exploded three bombs and looted away articles from his house worth Rs. 5000/- including ornaments etc. He further stated that he appeared in TIP and identified two of them. 4. PW 2 is Gauri Devi. She is daughter of informant Madan Mandal, She has stated that 8-9 dacoits entered into the house and dacoits searched for her mother and woke her up and demanded key to the shop. She handed over key to her mother and her mother handed over key to the dacoits. She further stated that dacoits also assaulted her and her mother. She also saw them in the light of the lantern and claimed to identify them. She appeared in TIP and identified two of them. 5. PW 3 is the son of the informant. He stated that he was sleeping in his room after taking meal and he heard the. sound of dacoit-dacoit then he closed his door. He further stated that his sister was dragged to Courtyard and pressed for opening the door. In the meantime dacoits left his sister. He further stated that he closed his door and from an other route he went to the village and raised alarm and on the alarm of villagers dacoits whispered among themselves to hurry up and exploded bombs and fled away. 6. PW 4 is also the son of the informant. He has deposed more or less on the same line as other three have deposed. 7. PW 5 is doctor, who conducted the post-mortem examination on the dead body of Gulabi Devi. According to him, no definite opinion can be given as to the cause of death (Post Mortem report is Ext. 2). 8. PW 6 is the Judicial Magistrate, who conducted TIP and proved TI Chart (Ext. 3). He stated that he conducted TIP in accordance with the provisions of law. 9. According to him, no definite opinion can be given as to the cause of death (Post Mortem report is Ext. 2). 8. PW 6 is the Judicial Magistrate, who conducted TIP and proved TI Chart (Ext. 3). He stated that he conducted TIP in accordance with the provisions of law. 9. PW 7 is the I.O. He stated that on the statement of PW 1 he registered a case as Dumka (M) P.S. Case No. 9/92 and after recording the same he read it over to the informant, who finding the same to be correct, put his signature. (Statement is Ext. 1/1 and formal FIR is Ext. 1). He also recorded the statement of witnesses and inspected the P.O. and according to him, P.O. is the house of the informant situated in upper Majhiyara, P.S. Dumka (M). 10. From perusal of materials on record, it appears that appellants were identified in TIP and all the witnesses, who have identified the appellants in TIP, have supported the fact that dacoity was committed in the house of the informant and witnesses have appeared in TIP and identified them. So there is ample materials against the appellants. 11. Learned counsel appearing for the appellants submitted that the case is based on the fact that appellants were put on TIP and they were identified. It was also pointed out that there is no dispute that a dacoity was committed on the alleged date of occurrence on the alleged time in the house of informant and inmates of the house and Informant claimed to have seen their faces and also claimed to have identified them in TIP. It was also pointed out that I.O., in course of investigation, arrested several persons and took them in TIP and these two appellants were identified by witnesses in TIP. The learned counsel for the appellants has challenged the very correctness of holding of TIP and has stated that TIP has not been properly conducted because PW 2, in paragraph 6 of her deposition has stated that she, her father and her brothers were called at the police station where these two appellants were locked in Thana premises. The learned counsel for the appellants has challenged the very correctness of holding of TIP and has stated that TIP has not been properly conducted because PW 2, in paragraph 6 of her deposition has stated that she, her father and her brothers were called at the police station where these two appellants were locked in Thana premises. The learned counsel referred to para 4 of deposition of PW 2 and submitted that before holding TIP, witnesses, who claimed to have identified appellants in TIP, were called at the police station and these two appellants were also in the police station and these two appellants were shown to the witnesses as they are the culprits and in the TIP they were identified by witnesses. Thus, process of TIP, as has been held, is vitiated and holding of TIP on this basis cannot be sustained in law. 12. Although, there is consistent evidence of the witnesses on the point of commission of dacoity and also about identification of the appellants by their faces in the torch light and also the witnesses have claimed to identify the culprits as and when they see them but in any view of the matter appellants should not have been shown to the witnesses before holding of TIP and particularly when they were going to appear in TIP, and from the admission made by PW 2 in her deposition appearing in para 4, it appears that she, her father and her brother were summoned to the police station where these appellants were there and they saw the appellants and thereafter they identified them. This fact goes to show that there was no meaning of holding TIP when TIP was held in such a manner. TIP should be held in proper way and the manner in which TIP has been held has vitiated whole trial and conviction cannot be sustained merely on the basis of identification of accused in TIP in such a way and, therefore, this case fails. 13. In the result, this appeal is allowed and judgment and order of sentence are hereby set aside. The appellants are acquitted from the charges levelled against them. Since both the appellants are on bail, they are discharged from the liability of bail bonds, if any. Appeal allowed.