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2005 DIGILAW 503 (JHR)

Indesh Mahto v. State Of Jharkhand

2005-07-13

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. This appeal is directed against the Judgment dated 28.2.2004 passed by the IIIrd Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 348-B of 1988, whereby the learned Additional Sessions Judge has convicted the appellant for the offence under Section 395 of the Indian Penal Code and sentenced him to undergo R.I for a period of ten (10) years and also to pay a fine of Rs. 10,000/- (Rupess Ten Thousand) only, in default to undergo R.I. for a further period of one year. 2. As it appears that initially this appellant and other five accused persons were jointly charged for the offence under Section 395, IPC in Sessions Trial No. 348-B/98. After examination of almost all the prosecution witnesses, the present appellant Indesh Mahto and other three accused persons absconded, whereas one other co-accused Keshwar Singh died during the pendency of the trial and therefore, the only remaining accused Sarjug Sah faced the full trial and then he was acquitted on 30.4.2001. 3. This appellant, his father Munsaf Mahto and brother-in-law Akhilesh Prasad and one Juman Mian were declared to be absconders and as such their trials were separated being Sessions Trial No. 348-A/88. Out of them, the present appellant was arrested and produced before the Court and then his trial was split up and was renumbered as Sessions Trial No. 348-B/ 88 in which only this appellant faced trial. 4. On 5.6.1986, at 5.30 a.m., on the basis of fardbeyan of Ishwari Sao (PW 3), a case was registered under Section 395 Indian Penal Code against the appellant and one another namely Akhilesh Prasad and also 20-25 unknown persons. In fardbeyan, it was alleged that on 4.6.1986, at about 11.00 p.m. the informant was sleeping in his house and his children were studying in the outer shop. At that time, he heard a sound of opening of door and then he saw from the window that 20-25 persons were standing outside. The children came out of the shop saying dacoits have arrived. The informants wife saw some persons were armed with gun and then she awoke the informant and told that dacoits have come. The informant and his family members raised alarm. The villagers were also raising alarm of "dacoit dacoit upon which dacoits made 2-3 firings. The children came out of the shop saying dacoits have arrived. The informants wife saw some persons were armed with gun and then she awoke the informant and told that dacoits have come. The informant and his family members raised alarm. The villagers were also raising alarm of "dacoit dacoit upon which dacoits made 2-3 firings. The information directed his son to carry the woman and children to the adjacent house of his elder brother and the informant stood in the courtyard with garasa. The dacoits were trying to break the door of the house. Some dacoits climbed over the roof, hearing the sound thereof, the informant handed over the garasa to his child and jumped over the roof and started pelting tiles towards the dacoits. Thereupon, the dacoits started firing. It is said that the informant identified one of the dacoits by voice as Indesh Mahto son of Munsaf Mahto. The informant slept over the roof and looked outside and then in the electric light, he saw the appellant was armed with a gun and wrapped his face by galmochha. Some of the dacoits had not wrapped their faces. The dacoits were 20-25 in numbers. Since the miscreants were firing on the roof and as such, the informant came out of the courtyard and along with his son jumped in the house of his brother and from there, he started fleeing away, upon which one of the dacoits namely Akhilesh Prasad who was the brother- in-law of the present appellant, fired upon the informant causing injury on his right hand. Thereafter, the dacoits after breaking the doors of the house of the informant, entered and committed dacoity. It is further said that the informant climbed over the roof of his house and went towards the village and at that time, the villagers assembled and started chasing the dacoits. The dacoits shot fire towards the mob causing injuries on 3-4 persons and after about 45 minutes, the dacoits fled away after committing dacoity. When the informant came back to his house, his wife and daughter- in-law told him that the dacoits have looted away gold and silver ornaments, cash amounting to Rs. 5.000/-, Tape Recorder, Cloth etc. total valued at Rs. 30.000/-. It was said that the dacoits were aged about 20-25 years and two of them were aged 40-45 years, one having a big moustache. 5.000/-, Tape Recorder, Cloth etc. total valued at Rs. 30.000/-. It was said that the dacoits were aged about 20-25 years and two of them were aged 40-45 years, one having a big moustache. The informant suspected one of them as Munsaf Mahto, the father of the appellant. The dacoits were having torch in their hand and were armed with gun and pistol. The informant claimed to identify the other dacoits and the articles which were looted away. It is further said that the dacoity was also committed in the house of the elder brother of the informant and in the house of one Dr. Gupta. 5. In order to prove the charge, the prosecution examined altogether eight witnesses. PW 1 Ramdeo Prasad is the nephew of the informant PW-2 Vijay Kumar Soni is son of the informant, whereas PW-3 is the informant himself W-4 is Dr. Tarkeshwar Nath Gupta, the other person in whose house the dacoity was committed in course of same dacoity. PW-5 is Basudeo Prasad is also nephew of the informant. PW 6 is the Magistrate who held TI Parade of other accused and not of this appellant PW 7 Smt. Ramsingari Devi the wife of the informant and she was declared hostile. PW 8 is the Investigating Officer. It appears that the appellant was identified by the informant by voice as well as by face in the electric light, except him, no other witness has identified or claimed to have identified the appellant Indesh Mahto during trial. 6. PW 1 has stated that in the night of occurrence, dacoity was committed. At that time, he was sitting on "kotha" and about 30-35 persons were going towards the door of Tarkeshwar Nath Gupta. Thereafter, all of them went near the door of his uncle Ishwari Sao. He has further stated that the dacoity was committed in the house of his uncle and he was assaulted by the dacoits. In paragraph 2 of his evidence, he has specifically stated that since he was very much restless because of assault on him and therefore, he could not identify any of the dacoits. Learned counsel for the appellant submitted that the evidence of this witness is of no value as he could not identify the accused. In paragraph 2 of his evidence, he has specifically stated that since he was very much restless because of assault on him and therefore, he could not identify any of the dacoits. Learned counsel for the appellant submitted that the evidence of this witness is of no value as he could not identify the accused. It was further submitted that the appellant was know to the informant party from before and there was a land dispute between them and therefore, the false implication of the appellant cannot be ruled out. 7. PW 2 did not identify this appellant rather he identified the other who accused namely Keshwar Singh and Sarjug Sah. Learned counsel for the appellants has submitted that since this witness has not identified this appellant and therefore, his evidence has of no avail to the prosecution. However, from the evidence of this witness, it appears that he has stated abotu the commission of dacoity. 7A. PW 3, the informant Ishwari Sao is the only witness who claimed to identify this appellant, his brother-in-law and suspected identity of the father of this appellant. 8. The factum of dacoity has not been challenged or disputed by the defence. In the present appeal also, it has not been disputed that dacoity was not committed in the house of the informant and others. From the statements made by the prosecution witnesses, particularly of PWs 1, 2, 3 and 4 coupled with the evidence of Investigating Officer, it has clearly been established and proved that the dacoity was committed in the house of the informant. The question to be considered in this appeal is as to whether the present appellant did participate in commission of the said dacoity ? 9. Admittedly, PW 3 informant Ishwari Sao is the only witness who is said to have identified the appellant that also by his voice. Therefore, the conviction of the appellant is solely based on he evidence of the PW 3 alone. No doubt there is no law that the conviction of the accused cannot be based on solitary evidence of one witness but of course the law say that in such a case it requires that the evidence of that solitary evidence has to be scrutinized with great caution. Therefore, the evidence of PW 3, the informant, has to be tested in that light. 10. Therefore, the evidence of PW 3, the informant, has to be tested in that light. 10. In the fardbeyan, the statement of the informant is relevant to be noted with regard to the identification of the present appellant wherein he has stated as follows :- Lekin Dacoit Log Bola Ki Khapra Phek Raha Hai Fire Karo. Ish Awaz Par Pahchane Ki Indesh Mahto Gram Maj-higawa Ke Munsaf Mahto Ka Ladka Bol Raha Hai". He has further stated in his ford bey an that the inmates of his house had also sent he dacoits and they could identify them. In his evidence, PW 3 has stated that he could identify the accused Munsaf Mahto, Indesh Mahto and Akhilesh Prasad by voice. In the fard beyan, the informant has also stated that when alarm was raised, the villagers had assembled outside the house and they were also raising alarm. But in his cross-examination, he has specifically stated that at the time of occurrence, no villager had arrived at his he use rather they came there after an hour of the occurrence. This witness has further stated that Dr. Tarkeshwar Nath Gupta PW 4 in whose house also the dacoity was committed by the accused persons, would identify the dacoits. But, as it appears from the evidence of PW 4, in paragraph 7 of his cross-examination, wherein he has stated that he did not identify any of the dacoits. Even the wife of the informant PW 7 Smt. Ramsingari Devi has stated that she could not identify any of the dacoits and as such, she was declared hostile. Even PW 1 Ramdeo Prasad, the elder brother of the informant, PW 2 Vijay Kumar Soni, the son of the informant, have not identified the present appellant as one of the dacoits who participated in the dacoity. 11. In view of the above discussions and contradictory statements of the informant, the identification of the present appellant and his participation in the said dacoity becomes doubtful. The informant has admitted that the appellant was known to him from before and was on litigating terms with him and his father and therefore, I find force in the submission of the learned counsel for the appellant that the false implication of the appellant cannot be ruled out. 12. The informant has admitted that the appellant was known to him from before and was on litigating terms with him and his father and therefore, I find force in the submission of the learned counsel for the appellant that the false implication of the appellant cannot be ruled out. 12. Taking into consideration of all these facts, I feel that to maintain the conviction of the appellant is not safe on the solitary evidence of the informant and the appellant is at least entitled to the benefits of doubt. Accordingly, this appeal is allowed. The judgment of conviction and sentence passed against the appellant by the trial Court is hereby set aside and he is directed to be set at liberty if not wanted in any other case.