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2006 DIGILAW 1079 (JHR)

Diwakar Prasad Singh v. State Of Jharkhand

2006-08-18

body2006
JUDGMENT Narendra Nath Tiwari, J. 1. The appellant along with one Moharlal Mirdha were tried for the charge under Section 395 of the Indian Penal Code (for short IPC) whereas, Moharlal Mirdha was acquitted, the appellant has been convicted under Section 395 IPC and sentenced to undergo rigorous imprisonment for ten years. 2. The fact which led to this appeal in brief is that on 19/20.2.2001 at about 11:30 PM. Pitamber Mandal, the younger son of the informant, Jiyadhar Mandal, who was sleeping in the Varandah called him and requested to open the door saying that the miscreants are threatening to kill him and his wife. The informant at first did not open the door, he peeped through the window and saw that 5/6 miscreants were catching hold of his son and were assaulting him. The informant raised alarm but no-body turned up. The miscreants then brought kerosene oil and poured on his son, who cried that the miscreants were going to set fire on him if the door is not opened. When the informant opened the door, one miscreant gave fist blow over his face and asked to disclose whereabouts of the cash. They, thereafter, entered into the room of Hari Mohan Mandal, the father of the informant and took away Rs. 10,000/- from his Almirah. They also took away H.M.T. wrist watch and utensils from his house. When the miscreants were leaving the house after committing dacoity, the informant followed them and successfully pushed one of the miscreants into the well near his house. Subsequently, the miscreant was taken out of the well who disclosed his name as Diwakar Prasad Singh of village Gangara, P.S. Pathargawa, District Godda. He also disclosed the name of other miscreants. 3. On the basis of the fardbeyan of the informant, case was registered under Section 395 IPC against the appellant, Diwakar Prasad Singh and seven others and was investigated into. After investigation, the police submitted charge-sheet under Section 395 IPC against the accused appellant Diwakar Prasad Singh and one Moharlal Mirdha while investigation continued against other accused persons. Both the accused persons were questioned under Section 313 Cr.P.C. They denied the charge and faced the trial. 4. The prosecution altogether examined ten witnesses. One witness was examined on behalf of the defence. Out of the prosecution witnesses P.Ws. Both the accused persons were questioned under Section 313 Cr.P.C. They denied the charge and faced the trial. 4. The prosecution altogether examined ten witnesses. One witness was examined on behalf of the defence. Out of the prosecution witnesses P.Ws. 1, 2, 3, 6, 7 and 8 deposed that the appellant was taken out of the well and was trying to flee away. P.W. 1 is the father of the informant. He stated in paragraph-3 of his deposition that the appellant was taken out of the well in the next morning. In paragraph-6 of his deposition, he stated that he had handed over Rs. 10,000/- to a dacoit but he is unable to identify him. In paragraph-14 he stated that when the appellant was caught hold, no looted articles were recovered from his possession. P.W. 2 is the uncle of the informant. He has stated in paragraph-1 of his deposition that on the day of occurrence, when he reached to the informants house, he saw about 500 persons already assembled. He saw-that one dacoit came out of the well and was about to run away but he along with others caught hold of him. He disclosed his name as Diwakar Prasad Singh (appellant). P.W. 2 is one of the witnesses of the FIR lodged by the informant, Jiyadhar Mandal (P.W. 4). He has proved his signature on the FIR (Ext. 1). P.W. 3, Dinesh Mandal is the nephew of the informant; he has stated in paragraph-1 of his deposition that he heard Halla and rushed to the place of occurrence. He saw that one dacoit came out of the well and was about to run away but the people caught hold of him. He disclosed his name as Diwakar Prasad Singh. P.W. 4 is the informant. He has stated in paragraph-1 of his deposition that when the miscreants were running away after committing dacoity in his house, he chased them and pushed one of the dacoits into the well. The miscreant gave out his name as Diwakar Prasad Singh (appellant) and tried to run away after coming out of the well but was caught hold by the people assembled there, The informant has also stated in paragraph-7 of his deposition that he could not identify any dacoit who committed dacoity in the informants house. P.W, 5 is the son of the informant. P.W, 5 is the son of the informant. He has not stated anything about pushing the appellant into the well or his coming out of the well. P.W. 6, Vishnu Marik has stated in paragraph-1 of his deposition that the occurrence took place at about 12:00 Oclock in the mid night. After hearing Halla, he went to the place of occurrence and saw the persons catching hold of the appellant who was said to have fallen into the well. P.W. 7 also rushed to the place of occurrence on hearing Halla and saw that the appellant was being caught hold by some persons. P.W. 8 also repeated the same story of detaining the appellant by some persons. P.W. 9 is the Investigating Officer. He has staled that the villagers caught hold of one dacoit, named, Diwakar Prasad Singh. P.W. 10 proved the FIR (Ext. 3). 5. On the other hand, the defence examined Asriwati Masomat as D.W. 1. She has staled in paragraph-1 of her deposition that appellant, Diwakar Prasad Singh is the son of her sister. On that day he had gone to the village in connection with the marriage of his daughter. In the night he was staying there and when he heard Halla, he rushed to the place of occurrence along with others and subsequently, she came to know that the appellant was pushed into the well and was caught hold by the villagers. 6. On the said evidences, learned trial court has come to the finding that the prosecution was able to prove the charge under Section 395 IPC against the appellant but the prosecution could not prove the said charge against another accused - Moharlal Mirdha. 7. Learned Counsel for the appellant submitted that conviction against the appellant is not based on any legal evidence inasmuch as the prosecution failed to prove the charge against the appellant beyond all reasonable doubts. Learned Counsel submitted that there is no eye witness of the occurrence. All the witnesses are family members. There is not a single independent witness. In the FIR, it was alleged that there were seven miscreants but there is nothing on record to show that the appellant had named the said seven miscreants. 8. Learned Counsel submitted that there is no eye witness of the occurrence. All the witnesses are family members. There is not a single independent witness. In the FIR, it was alleged that there were seven miscreants but there is nothing on record to show that the appellant had named the said seven miscreants. 8. I have considered the submissions of learned Counsel for the appellant and carefully scrutinized the evidences on record, 1 find no cogent evidence to connect the appellant with the occurrence of dacoity. All the P.Ws. have deposed that the appellant was taken out of the well. There are contradictory statements about the appellants attempt of running away. P.W. 1, father of the informant stated about the appellant coming out of the well in the next morning. P.W. 2, P.W. 3 and P.W. 4 have given different version and stated that the appellant came out of the well and was trying to escape in the night. Nothing incriminating has been recovered from his possession. There is no evidence on record to establish that five and more persons had conjointly committed or attempted to commit robbery. The prosecution failed to prove the involvement of other five persons, who had allegedly committed dacoity along with the appellant. Even the alleged material witnesses, who claimed to have seen the appellant, failed to identify the appellant as the miscreant. Neither the informant nor his father have identified him as the person committing alleged dacoity. The appellants presence was well explained by the D.W. 1, who is her own relative. There is nothing on record to show that D.W. 1 has concocted the story of relationship with the appellant. The prosecution has miserably failed to establish the alleged charge under Section 395 IPC against the appellant. Except mere presence of the appellant in the village on the date of occurrence, which was explained by the defence, there is no other material and evidence and the same neither constitute an offence under Section 395 IPC nor is sufficient for conviction of the appellant for the alleged charge. The prosecution has thus failed to establish the charge against the appellant beyond all reasonable doubts. This appeal is allowed. The impugned conviction and sentence of the appellant are set aside. The appellant is acquitted of the charge. Let the appellant be set free forthwith if not wanted in any other case.