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2008 DIGILAW 663 (JHR)

Mansa Mandal v. State Of Bihar (Now Jharkhand)

2008-07-02

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J. 1. The appellant has preferred this appeal against the judgment of conviction dated 28.02.1995, passed in Sessions Case No. 47 of 1991, by the 03 rd Additional Sessions Judge, Deoghar whereby the appellant was convicted for the alleged offence under Section 395 of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 2. The appellant was initially tried for the offences under Sections 395 and 397 of the Indian Penal Code but at the conclusion of the trial, he has been acquitted from the charge in respect of the offence under Section 397 of the I.P.C. 3. The case against the appellant and other co-accused persons was registered on the basis of the Fard Beyan of the informant, Sheo Prasad Mandal (P.W. 4) recorded at the Madhupur Police Station in the morning of 06.06.1986. 4. The case of the prosecution in brief is that in the night of 5/6.06.1986 while the informant including his family members, namely, P.W. 1, P.W. 2 and P.W. 3 were sleeping in their house, they woke up on hearing the sound of knocking at the door. Feeling apprehensive, they did not open the door but they found that some outsiders had entered into the house by scaling the roof. The intruders thereafter opened the door facilitating entry of their associates into the house. The informant and the other inmates of the house, namely, P.W. 1, P.W. 2 and P.W. 3 had seen the intruders in the light of the Lantern, burning within the Verandah of the house. The intruders were armed with lethal weapons like pistols and, knives, and they had torch in their hands. After subduing the members of the house by threats of injury to their life and person, the intruders ransacked the house and looted the household articles, a list of which has been mentioned in the F.I.R. While the dacoits were retreating, a Bomb, carried by one of the dacoits exploded, resulting in fatal injury to him and to one of his associates who later succumbed to his injuries. In the meanwhile, on the alarm raised by the informant and his family members, several persons of the village arrived and they managed to apprehend one of the Dacoits who was assaulted by the villagers and as a result of the same he too succumbed to his injuries. In the meanwhile, on the alarm raised by the informant and his family members, several persons of the village arrived and they managed to apprehend one of the Dacoits who was assaulted by the villagers and as a result of the same he too succumbed to his injuries. Some of the villagers had shot arrows at the Dacoits but since no arrow was found at the spot, it was presumed that the other Dacoits who managed to flee away, had carried away the arrows alongwith them. None of the two dacoits, who had succumbed to their injuries, at the spot could be identified by any of the villagers. The person who had sustained injuries by the Bomb explosion was alive and he was apprehended. He disclosed the names of his associates before being taken to the Hospital. In course of his treatment at the Hospital, he died. 5. The further case of the prosecution is that in course of investigation and on the basis of the statement made by the deceased co-accused, when he was examined in his injured condition, the present appellant was arrested and he was put on T.I. Parade in which three of the members of the informants family including the informant, identified him. 6. After concluding the investigation, the Police submitted chargesheet against the present appellant, Mansa Mandal and another co-accused, namely, Lalji Mandal for the offence under Sections 395 and 397 of the I.P.C. Both the accused persons had denied the charges framed against them and pleaded not guilty. 7. In course of trial, however, the co-accused Lalji Mandal had died and the trial proceeded against the present appellant. At the trial, as many as four witnesses were examined by the prosecution including the informant (P.W. 4) and his three sons, namely as P.Ws. 1, 2 and 3 respectively. The Investigating Officer in the case has not been examined. 8. On the basis of the evidences adduced by the prosecution witnesses and relying upon their testimony and drawing support to their testimony from the evidence of the identification of the present appellant in the T.I. Parade, the trial court recorded its finding of guilt against the present appellant for the offence under Section 395 of the I.P.C. and convicted and sentenced him accordingly. 9. Assailing the impugned judgment of conviction and sentence Mr. 9. Assailing the impugned judgment of conviction and sentence Mr. K.P. Deo, learned Counsel for the appellant submits that the conviction of the appellant for the offence under Section 395 of the I.P.C. is totally misconceived and is against the weight of evidence on record and the findings of the trial court is without appreciation of the evidences in proper perspective, raises the following grounds: (i) That though the trial court has relied upon the evidences relating to the identification of the witnesses in the T.I. Parade but neither the T.I. chart has been adduced or proved in evidence nor has the Officer, who held the T.I. Parade been examined. In absence of the T.I. chart and in absence of the evidence of the Officer, who had conducted the T.I. Parade, the appellant has suffered serious prejudice in his defence. (ii) The conviction of the appellant on the basis of the identification in the T.I. chart could not have been sustained on account of the fact that this circumstance, was not put to the appellant at the time of his examination under Section 313 of the Cr.P.C. and he was, therefore, deprived of a legitimate opportunity to explain the evidence used against him. (iii) That the appellant has not been named in the F.I.R. The evidence of T.I. Parade and the evidence of the witnesses identifying the present appellant should not have been relied upon by the trial court on account of the fact that even as admitted by the informant-P.W. 4, the appellant on his arrest was brought to the village and shown to the villagers including the informant and his family members, and two days thereafter, the alleged T.I. Parade was conducted and the witnesses were made to identify the present appellant. As such, the identification of the appellant in the T.I. Parade is of no value and such identification by the witnesses even at the trial could not have been relied upon. (iv) That the lantern in the light of which the identification of the appellant is alleged to have been made, has not been seized from the alleged place of occurrence. (iv) That the lantern in the light of which the identification of the appellant is alleged to have been made, has not been seized from the alleged place of occurrence. (v) That though the P.W. 1 claims to have seen and identified the appellant at the time of the alleged occurrence and though prosecution has claimed that one of the injured dacoits, namely, Shanker Roy, who was apprehended at the spot in the injured condition, has disclosed the name of the present appellant in presence of the informant and others but strangely enough, the name of the present appellant does not transpire in the F.I.R. This ought to have been taken by the learned court below as a circumstance in favour of the appellant. (vi) That non-examination of the Investigating Office has caused serious prejudice to the defence. 10. As against this, learned Counsel for the Respondent-State would offer arguments in support of the impugned judgment of conviction and sentence and submit that the conviction of the appellant for the aforesaid offence has been based on his identification by the witnesses in the trial and earlier at the T.I. Parade and merely because the appellant was brought to the village after his arrest, in itself does not lead to the conclusion that he was shown to the witnesses from before and therefore they were made to identify the appellant at the T.I. Parade and also at the trial. Learned Counsel argues that the witnesses who happen to be the victims of the dacoity and had the opportunity to see and identify the dacoits including the present appellant in course of dacoity committed in their house and while identifying the present appellant, they had categorically stated that they had seen the present appellant in the light of the lantern holding a Lathi in his hand and, therefore, the identification of the present appellant as one of the dacoits is unassailable and it offers a cogent and reliable piece of evidence on the basis of which, the conviction can be sustained. 11. On reading the impugned judgment of the trial court, it transpires that the conviction of the appellant has been based by relying upon the testimony of the witnesses relating to identification of the appellant both at the T.I. Parade as well as in course of trial. 11. On reading the impugned judgment of the trial court, it transpires that the conviction of the appellant has been based by relying upon the testimony of the witnesses relating to identification of the appellant both at the T.I. Parade as well as in course of trial. It however appears that while drawing its inferences and recording its finding the trial court has failed to observe certain inconsistencies even as would appear in the evidence of the witnesses and the circumstances under which the earlier Test identification Parade was held and the subsequent identification of the appellant in course of the trial. 12. From the evidence of the informant (P.W. 4), it transpires that after the arrest of the appellant on 29.06.1986, he was brought to the village of the informant and shown to the informant and the members of his family as well as to the other co-villagers. Thereafter on 01.07.1986, he was produced before the Magistrate for his judicial remand and on the same day, the T.I. Parade was conducted. This information is available from the judicial record of the lower court, although, the prosecution has not produced the T.I. chart in evidence nor has examined any witness in support of its claim that the T.I. Parade was held in which the witnesses were called to identify the suspects including the present appellant. It is in the oral testimony of the witnesses, namely, P.W. 1, P.W. 2 and P.W. 4, who have claimed to have identified the appellant earlier in the T.I. Parade. The informant (P.W. 4) has admitted that in the night of the 29.06.1986, the appellant was brought under arrest to the village and his features were made familiar to the witnesses prior to the holding of the T.I. Parade and impression was given to the witnesses by the Police that the arrested person was one of the dacoits. The identification made by the witnesses at the T.I. Parade and also at the trial has therefore to be considered as tainted. 13. There is also another aspect in respect of the identification of the appellant. P.W. 1, who is the son of the informant and who asserts to be present at the time of the dacoity committed at his house, also claims that he had seen and identified the present appellant and another person, namely, Lalji Mandal in course of the Dacoity committed in his house. P.W. 1, who is the son of the informant and who asserts to be present at the time of the dacoity committed at his house, also claims that he had seen and identified the present appellant and another person, namely, Lalji Mandal in course of the Dacoity committed in his house. While the prosecutions claim was that one of the injured dacoits, namely, Shanker Roy confessed his guilt before the Police and had also named the present appellant not only in presence of the Police but also in presence of the informant (P.W. 4) and his sons before the F.I.R. was recorded. If this was so, then why was the name of the appellant not mentioned in the F.I.R.? There is no convincing and satisfactory answer by the Prosecution to this question. 14. As to why was the appellant on his arrest was paraded before the informant and his family members and also before the co-villagers is a question, which could have been answered only by the Investigating Officer. The defence is certainly at liberty to draw several inferences adverse to the prosecution, if the Investigating Officer is not brought forward to explain. 15. Another significant aspect, as rightly pointed out by the learned Counsel for the appellant, is that the circumstances, which purportedly appear in the evidence of the witnesses relating to the identification of the appellant at the T.I. Parade and the claim of P.W. 1 that had he could see and identify the appellant even at the time of alleged occurrence, was not put to the appellant at the time of his examination under Section 313 of the Cr.P.C. Failure to put the pertinent question, has definitely caused prejudice to the appellant since he was deprived of an opportunity to explain the incriminating circumstance, brought in evidence by the witnesses against him and which was sought to be used against him. 16. Thus even if the statement of the witnesses regarding the fact of dacoity committed in their house may be consistent but the evidence on the point of identification of the appellant as one of the dacoits is inconsistent, incomplete and certainly not conclusive. Such evidence cannot be based for the conviction of the appellant. 16. Thus even if the statement of the witnesses regarding the fact of dacoity committed in their house may be consistent but the evidence on the point of identification of the appellant as one of the dacoits is inconsistent, incomplete and certainly not conclusive. Such evidence cannot be based for the conviction of the appellant. In absence of any other circumstance or evidence brought on record which could suggest the complicity of the appellant in the alleged offence of dacoity, the conviction of the appellant cannot be sustained. The impugned judgment of conviction as recorded by the trial court is vitiated because of the fact that the trial court has not appreciated the evidences on record in proper perspective resulting in perversity in the finding of the trial court. 17. In the light of the above discussions, I find merit in this appeal. Accordingly, this appeal is allowed. The impugned judgment of conviction and sentence as recorded by the trial court against the appellant is hereby set aside. The appellant is acquitted from the charge for the offence under Section 395 of the I.P.C. Since he is on bail, he is absolved from the liability of his bail bond.