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2013 DIGILAW 408 (PAT)

Debu Mandal v. State of Bihar

2013-03-21

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. 1. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State and perused the record. 2. Originally, this Cr. Appeal was filed on behalf of the two appellants challenging their conviction and order of sentence for the offence punishable under Section-364 of the Indian Penal Code in Sessions Trial No. 396 of 1994 passed by the learned IVth Additional Sessions Judge. Bhagalpur but during pendency of their appeal the appellant No.2 namely Datto Mandal died find accordingly the proceeding of this appeal in respect of the aforesaid appellant No.2. Datto Mandal was abated vide order dated 14-03-2013. 3. The appellant, Debu Mandal alongwith co-accused. Datto Mandal were put on trial and charge for the offence punishable under Section-364 of the Indian Penal Code was framed against them to which they denied the charge and claimed to be tried. 4. The learned trial Court having recorded the evidence of prosecution witnesses and having completed the formalities of the trial convicted and sentenced the appellant as well as co-accused. Datto Mandal (since deceased) for the offence under Section 364 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years for the abovestated offence. 5. PW 3 namely, Chathiya Devi gave written report to Officer-in-charge of Mojahidpur Police Station on 16-05-1992 stating therein that on 11-05-1992 at about 9.00 p.m. the Appellant Debu Mandal as well as co-accused. Datto Mandal came at her home and took her son namely Chhedi Mandal and after that, her son did not return till next morning. Thereafter, she met Datto Mandal and asked about her son but Datto Mandal disclosed that her son had already returned to his home in the night itself. She inquired from other persons and in course of search when she went in Dom Toli. She learnt that the appellant Debu Mandal and co-accused. Datto Mandal were seen by some persons alongwith her son going towards the South Mughalpura and in dead night only the appellant Debu Mandal and co-accused. Datto Mandal were seer returning from South Mughalpura. She expressed her suspicion that her son might have been killed by the appellant. Debu Mandal and co-accused. Datto Mandal. 6. On the basis of aforesaid written report. Mojahidpur Police Case No. 60 of 1992 under Section 364 of the Indian Penal Code was registered and accordingly. Datto Mandal were seer returning from South Mughalpura. She expressed her suspicion that her son might have been killed by the appellant. Debu Mandal and co-accused. Datto Mandal. 6. On the basis of aforesaid written report. Mojahidpur Police Case No. 60 of 1992 under Section 364 of the Indian Penal Code was registered and accordingly. formal FIR for the offence under Section-364 of the Indian Penal Code was drawn up against the appellant. Debu Mandal and co-accused Datto Mandal. The police after investigation submitted charge-sheet for the offence under Section 364 of the Indian Penal Code against the appellant and co-accused. Datto Mandal. The cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way and. after that the appellant. Debu Mandal and co-accused, Datto Mandal were put on trial and were charged by the learned trial Court in the manner as stated above. 7. In order to prove the charge prosecution examined altogether 11 witnesses and got exhibited formal FIR as Ext-1. The statements of the appellant Debu Mandal and co-accused. Datto Mandal were recorded under Section 313 of the Cr PC in which they reiterated their innocence. No evidence was adduced on behalf of the appellant. Debu Mandal and co-accused. Datto Mandal but from perusal of the statements recorded under Section 313 of the Cr PC as well as trend of cross-examination. It appears that the defence of the appellant. Debu Mandal and co-accused. Datto Mandal was total denial of the prosecution story. 8. The appellant, Debu Mandal and co-accused. Datto Mandal were convicted and sentenced by the learned trial Court, passing impugned judgment of conviction dated 09-02-2001 and order of sentence dated 12-02-2001 in the manner as stated above and the aforesaid impugned judgment of conviction and order of sentence has been assailed before this appellate Court. 9. Learned counsel appearing for the appellant while assailing the impugned judgment of conviction and order of sentence submitted that the learned trial Court based his findings. only on the basis of surmises and conjectures and as a matter of fact, there was no legal and cogent evidence against the appellant to prove his guilt but in spite of that learned trial Court convicted and sentenced the appellant passing impugned judgment of conviction and order of sentence. He specifically stated that except prosecution witness No.3. only on the basis of surmises and conjectures and as a matter of fact, there was no legal and cogent evidence against the appellant to prove his guilt but in spite of that learned trial Court convicted and sentenced the appellant passing impugned judgment of conviction and order of sentence. He specifically stated that except prosecution witness No.3. no prosecution witnesses supported the prosecution story and so far as prosecution witness No.3 is concerned. She made contradictory statement and her presence at the time of taking away the victim was doubtful and furthermore the I.O. of this case was not examined and due to non-examination of the I.O., serious prejudice has been caused to the appellant. 10. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that now it has already been set at rest by the Apex Court of this country that conviction can be passed only on solitary statement of the prosecution witness. He, further submitted that in the present case. PW 3 supported the story of taking away the victim from his house by the appellant and co-accused. Datto Mandal and therefore learned trial Court rightly convicted and sentenced the appellant. 11. Having heard the aforesaid rival contentions of both the parties. I have gone through the record. 12. Admittedly, except PW 3 all the prosecution witnesses have been declared hostile and they have not supported the prosecution story rather they expressed their ignorance about the prosecution case. 13. PW 3 is mother of the victim of this case and she stated that in the evening of alleged date of occurrence. She was selling vegetables in Marufchak, where the appellant and co-accused Datto Mandal came and asked about her son, Chhedi Mandal upon which she replied that Chhedi Mandal was at his house. She further stated that after two hours of the aforesaid first visit, the appellant and co-accused. Datto Mandal came at her home and forcibly took her son. Chhedi Mandal from the house. She further stated that the aforesaid appellant and co-accused. Datto Mandal took her son to Dam Toli where 2-4 persons saw the appellant and co-accused. Datto Mandal as well as her son Chhedi Mandal. Datto Mandal came at her home and forcibly took her son. Chhedi Mandal from the house. She further stated that the aforesaid appellant and co-accused. Datto Mandal took her son to Dam Toli where 2-4 persons saw the appellant and co-accused. Datto Mandal as well as her son Chhedi Mandal. She further stated that she went to Kahalgaon Hatiya on the same night and in the next morning at about 9.00 a.m. she returned from Kahalgaon and reached at her home but she did not find her son at home and after that she went Dom Toli in search of her son but she did not find her son in Dom Toli and after that she inquired from the appellant and co-accused. Datto Mandal about her son but the aforesaid persons refused to divulge anything and after that some villagers told her that the appellant and co-accused. Datto Mandal took her son but only the appellant and co-accused, Datto Mandal returned. 14. On being cross-examined by the defence. She admitted that in the evening of the alleged date of occurrence. she went to Kahalgaon by train and in the morning of next day. She returned to her home. At paragraph-11 of her cross-examination her attention was drawn towards her previous statement recorded by the Investigating Officer but she flatly refused this fact that she had not made statement before the police to this effect that her son was forcibly taken away by the appellant and co-accused. Datto Mandal. 15. On careful perusal of evidence of PW 3. I find that on the alleged date of occurrence. she was not at her home and she had not seen the appellant and co-accused. Datto Mandal taking away of her son from her home rather she came to know about the aforesaid fact from some other persons but admittedly except PW 3 none has come forward to support the above version of taking away of the victim from his home by the appellant and co-accused. Datto Mandal. 16. Furthermore, I find that in her deposition. she stated that the appellant and co-accused. Datto Mandal forcibly took her son from her house but in her written statement. she has nowhere stated this fact. It appears to me that the above-said fact was developed by PW 3 in course of trial. 17. Datto Mandal. 16. Furthermore, I find that in her deposition. she stated that the appellant and co-accused. Datto Mandal forcibly took her son from her house but in her written statement. she has nowhere stated this fact. It appears to me that the above-said fact was developed by PW 3 in course of trial. 17. The attention of PW 3 has specifically been drawn by the defence but she denied and stated that she had stated before the I.O. that her son was forcibly taken away by the appellant and co-accused. Datto Mandal on the alleged date of occurrence. 18. The learned counsel for the appellant has argued that the story of forcibly taken away the victim by the appellant and' co-accused. Datto Mandal was a new development in course of trial and. Therefore, non-examination of the I.O. was fatal to the prosecution case. I do agree with the aforesaid submission and in my view also the non-examination of the I.O. was fatal to 5 the prosecution case because defence could I not get an opportunity to draw the attention of Investigating Officer towards the abovesaid contradiction/development in the deposition of PW 3. 19. Admittedly, except PW 3 none has supported the prosecution story and moreover. PW 3 has nowhere stated in her deposition before the trial Court that her son was taken away by the appellant and co-accused. Datto Mandal with intent to kill him or with intent to put his life in danger of being murdered. 20. On the basis of aforesaid discussions. I am of the opinion that there was no legal. cogent and positive evidence against the appellant to hold him guilty for the offence under Section 364 of the Indian Penal. Code and in my view the learned trial Court has committed error in convicting and sentencing the appellant for the above-stated offence. 21. Thus on the basis of aforesaid discussions this Cr. Appeal is allowed and impugned judgment of conviction and order of sentence is, hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.