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2012 DIGILAW 1382 (PAT)

Saryug Mandal v. State of Bihar

2012-09-27

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The appellants have been found guilty by the 1st Additional Sessions Judge, Bhagalpur in Sessions Trial No. 213 of 1983/47 of 1995. Apart from appellant no. 2, all the appellants have been sentenced to undergo rigorous imprisonment for seven years under Section 395 of the Indian Penal Code, whereas, the appellant no. 2 has been sentenced to undergo rigorous imprisonment for five years considering the fact that he was 65 years old. 2. The prosecution case, in brief, is that Jaldhar Mandal was sleeping in his house along with his family members. It is said that his uncle Mangal Mandal had gone to village Daliyanpur and there were only female members in his house. At about 12 in the night, 8 accused persons including the five appellants entered the house of Mangal Mandal. Bhudeo Mandal was armed with gun, Sahendra Mandal and Chandi Mandal had pistols in their hands whereas the others were armed with lathies. The appellants had committed theft in the house of the informant. When the informant went to the house of his uncle, he saw that the miscreants were cutting legs of Indra Devi. Sanjukta Devi, daughter of Indra Devi had identified the accused persons. After committing theft in the house of Mangal Mandal, the appellants ran away. The informant raised alarm whereupon the villagers gathered at the place of occurrence. The reason for the occurrence has been disclosed in the First Information Report which indicates that the miscreants have entered the house of Mangal Mandal in order to kill him. It is said that there are cases pending between Saryug Mandal and one Lekha Mandal. The informant’s uncle supports Lekha Mandal which is the reason why the accused Saryug Mandal was aggrieved and had come to kill Mangal Mandal. 3. The defence of the appellants which has come by way of suggestions given during the trial of this case is that they have been falsely implicated in this case due to enmity and that they were not responsible for the said dacoity or for the injury on any of the family members of the informant. 4. In order to prove its case, the prosecution has examined five witnesses. Unfortunately, the Investigating Officer and the doctor has not been examined in this case on behalf of the prosecution who could have proved the injury of PW 5. 4. In order to prove its case, the prosecution has examined five witnesses. Unfortunately, the Investigating Officer and the doctor has not been examined in this case on behalf of the prosecution who could have proved the injury of PW 5. PW 3 Jaldhar Mandal, PW 4 Kaili Devi, wife of Mangal mandal and PW 5 Indira Devi have been declared hostile. 5. PW 3 Jaldhar Mandal is the informant of this case. He has supported the factum of dacoity in his evidence before the Trial Court but has not identified the appellants as the persons who committed dacoity. Thus, this case is based on the sole testimony of PW 1 Arbind Kumar Mandal, who is the nephew of the informant Jaldhar Mandal. According to him, he was sleeping in the verandah of his house when he heard the ladies of the house protesting. When he went inside, he was able to identify all the accused persons committing act of dacoity. He was able to identify them in the light of the torch that the dacoits were carrying. He also admits that all the appellants are resident of the same village. In his cross-examination, he deied the motive of the occurrence as stated in the First Information Report and has stated that he does not know Lekha Mandal nor does he know whether Saryug Mandal and Lekha Mandal are on litigating terms. He also denies that there is a land dispute pending between the parties. 6. PW 2 Sanjukta Devi, sister of PW 1 Arbind Kumar Mandal has supported the prosecution case only to the extent that she states that the dacoity had taken place in the night of 25.09.1982, but she does not identify the appellants as the persons who were responsible for the dacoity. 7. The Trial Court has convicted the appellants on the basis of the sole testimony of PW 1. Considering the fact that the informant and the victim persons of this case have all turned hostile and have denied the participation of these appellants in the occurrence, this Court comes to the conclusion that there was a dacoity committed in the house of Jaldhar Mandal, but it cannot be said that these appellants had participated in the said occurrence. Considering the fact that the informant and the victim persons of this case have all turned hostile and have denied the participation of these appellants in the occurrence, this Court comes to the conclusion that there was a dacoity committed in the house of Jaldhar Mandal, but it cannot be said that these appellants had participated in the said occurrence. It is not safe for this Court to convict the appellants on the sole testimony of PW 1, who claims to have identified the appellants considering that they belong to the same village and that they had taken no precaution to cover up their faces while they have come to commit dacoity. 8. In the facts aforesaid, the above named appellants are acquitted of the charges levelled against them. They are also discharged from the liabilities of the bail bonds furnished earlier in this case. 9. In the result, this appeal is allowed.