BIJOY KRISHNA MANDAL Vs. STATE

JUDGEMENT

(1.) The two Appellants Bijoy Krishna Mandal and Grajendra Nath Mali were convicted under Section 396 of the Indian Penal Code and sentenced to 10 years' rigorous imprisonment each by the Judge, Third Tribunal Alipur. The case for the prosecution briefly is that on the night of February 13, 1950, there was a dacoity in the house of Srinath Bhuiya alias Sripati Bhuiya, resident of Naraharipur, a small village in the Sagar Island in Sagar Police Station. Sripati's house consisted of an east-facing two-roomed mud-walled hut with a verandah on the east and a kitchen attached to it. Sripati and his third son Dhirendra occupied the southern room and Jatin, Sripati's eldest son, and one Iswar iMandal who had come to the house with the object of going out with Jatindra next morning to a hat for buying cloth occupied the verandah and Sushila Bala, Jatin's wife, slept with her infant son and an old maid-servant in the northern room. At about 2-30 a.m. Sripati woke up on hearing the dog's bark and the jhap-door falling and found his room lit up with the flashes of the electric torches and found two men one of whom had a piece of cloth tied round his head and cheeks standing near his bed and 2 or 3 men mounting guard on Jatin Bhuiya and Iswar Mandal on the verandah when he shouted out in fear. One of the men dealt him a blow with a lathi. While he was being struck, he also heard cries of Sushila Bala in the northern room. Dhirendra also woke up and saw two raiders in the room, 2 or 3 in the verandah and a few in the courtyard. Sushila Bala also found 2 or 3 men moving about in her room. She also raised a hue and cry whereupon both the raiders in her room threatened her with assault and ordered her to keep quiet. These two men then took out certain handloom cloths and gamchhas in which her husband used to trade, from the room and then broke open a box and took away there from some money and certain articles including number of packets of vermillion. A number of neighbours were attracted by the hue and cry and began to approach Sripati's house. The raiders on getting scent of it left the house and tried to run away. Jatin Bhuiya and Dhiren Bhuiya gave them a chase. Jatin caught hold of one of the dacoits, threw him down on the side of their doba and sat on his back while Dhiren caught hold of another who, however, effected his escape by stabbing Dhiren on the arms. Jatin, however, was shot down by another of the raiders with the result that the raider whom he had thrown down on the ground also escaped. Jatin died almost instantaneously. Immediately after the dacoits had left her room, Sushila found her father-in-law in the verandah and while she had been talking with him, she heard cries of Dhiren. Than Sushila with her father-in-law and Iswar Mandal went up to the doba where Jatin lay already dead. The President of the Local Union Board Dr. Atul Mahapatra whose house is not far off from Sripati's, came out of his house and rushed towards the house of Sripati. He found Jatin lying dead by the side of the doba and Iswar Mandal pouring water on the head. Dhiren, who also had been injured, was sitting by the side of Jatin and crying and Sripati was lamenting on the verandah, Dr. Atul Mahapatra heard of the occurrence from Dhiren and Iswar Mandal and leaving instructions to those of the neighbours who were there to remove the dead body of Jatin to the verandah, he went back home with Jatin Maity and from there he sent some men to the steamer station and different ferry ghats so as to prevent the escape of the dacoits from the island and despatched a written information about the occurrence to the Sagar Police Station which is about 12 miles off, through Jatin Maity and the local Chowkidar Jitendra Patra. Exhibit 1 is this First Information Report. Immediately after Dr. Atul Mahapatra had left the house of Sripati, many neighbours turned up there and heard of the occurrence.from Sripati and Dhiren and saw what had happened. Sripati told them that his nephew Haripada, who was also on his trial but was acquitted by the Judge, was one of the two dacoits. Sristidhar reported to all present that while he, after he had heard the hue and cry, was coming to Sripati's house, he saw 6 or 7 men running away from the direction of Sripati's house and he recognised amongst them in the flashes of his electric torch the two Appellants Gajen Mali and Bijoy Mandal. On the following day at about 10-30 a.m. A.S.I. N.K. Das who was then in charge of the Sagore Police Station received the written report of Dr. Atul Mahapatra through Jatin Maity, filled up the F.I.R. form, and accompanied by a constable visited the house of Sripati at 5-30 p.m. and saw what had actually happened. He held an inquest on the dead body, examined some witnesses and took into custody some alamats including two bullets, Ex. I, and four live cartridges, Ex. II, which had been picked up by Gajendra Nath Maity early in the morning by the side of the doba where Jatin Bhuiya had been killed. Next morning he despatched the dead body of Jatin to the Diamond Harbour morgue for post-mortem examination under the escort of constable Manoranjan Das and also sent Dhiren and Sripati to the Diamond Harbour Hospital for treatment. On February 19, 1950, S.I. Amulya Barman on being temporarily deputed to the Sagore Police Station took up the investigation of the case and in due course the Officer-in-Charge S.I. Suren Boy took over the investigation from Amulya Barman. On the night of February 27, 1950 at about 2-30 a.m. (so that the actual date of arrest would be 28th February 1950) the Appellants Gajen Mali and Bejoy Mandal were arrested at Bak Khali by some members of the Lakshmipore village defence party, namely, Ratikanta Das. P.W. 26, Santosh Kumar Haty, P.W. 27, and Swadesh Ranjan Deb Sharma, P.W. 28. At the time of the arrest there had to be an exchange of fire between the Appellants on the one hand and the members on the village defence party on the other. Gajen Mali when he was arrested was armed with a revolver and a number of cartridges was found in his possession. After they had been secured a few pieces of new cloth and 35 vermilion packets which are alleged to have been stolen during the dacoity from Sripati's house were seized from the, boat in which these two Appellants were. After the members of the village defence party had arrested Gajen Mali and Bejoy Mandal, they made them over in the afternoon of 28th February, 1950 to the subdivisional Police Officer of Diamond Harbour, P.W. 34, at Frasergunge Union Board office which he happened to visit on that date. The S.D.P.O. brought the two Appellants to Namkhana where he was camping in his steam lunch along: with the property seized and made over to Inspector Lokenath Dasgupta, P.W. 37, on March 1, 1950. The revolver found with Gajen Mali is Ex. XI and the two fired cartridge cases and nine live cartridges are Exs. XII and XIII and the cloth, the bundle of hand-loom saris, gamchhas and vermillion packets, etc., were all lumped up as Ext. VII. The Inspector forwarded all the arrested men to court. On March 3, 1950 the arrested persons were produced before the Magistrate. Bejoy 'Mandal made a confessional statement before Shri S.K. Mukherjee, Magistrate, First Class. The revolver Ex. II, along with another revolver which had been seized from the possession of Bhusan Kamila who also was on trial in this case but was discharged by the learned Judge, namely, Ex. IX, was sent to the Arms Expert along with the fired cartridge cases, Ex. XII, seized after the arrest of Gajen Mali and Bejoy Mandal and also the bullets, Ex. I, and live cartridges, Ex. II, found by Gajen Maity near the doba where Jatin's dead body was found on the morning following the night of the occurrence. The Arms Expert after an examination of these weapons and firing cartridges from both these weapons was of the opinion that one of the two bullets in Ex. I had been fired from Ex. XI, the revolver that was found with Gajen Mali and the other bullet in Ex. I, had been fired from the revolver Ex. IX found with Bhusan Kamila. On these facts a charge under Section 396 Indian Penal Code was framed against these two Appellants who were convicted, Haripada was acquitted. The defence of the two Appellants was that they were not guilty and that they were falsely implicated in this case on the ground that they had participated in the tebhaga movement in the Kakdwip area and were also wanted by the Police in connection with a number of cases falsely started against them on the ground of their participation in the tebhaga movement. The first question for consideration in this appeal is whether there was a daeoity in the 'house of Sripati Bhuiya on the night of February 13, 1950 as alleged. Apart from the inmates of the house, namely, Sripati, P.W. 3, Sushi hi Bala, P.W. 2, Dhirendra. P.W. 9, there is the evidence of the neighbours Dr. Atul Mahapatra, Sristidhar Mandal, Jatindra Nath Maity and Iswar, Chandra Mandal who belongs to a neighbouring village Rudrapur but was staying in the house of Sripati in the night of the occurrence in order to accompany Jatin next morning to Terapakhia, Bazar for purchase of cloth. There is also the evidence of Bhuban Chandra Jana, Hrishikesh Mahapatra, Dr. Kanai Lal Mitra, Nagendra Nath Jana, Narendra Nath Mandal, Jitendra, Nath Patra, the local chowkidar, Gajendra Nath Maity, Ananta Kumar Mandal of, Rudranagar who was, staying in the house of Bhupen Mandal pf Harinbari village that night and others. There is also the fact that Jatin was undoubtedly done to death as, a result of the occurrence and there is no reason whatever why this volume of evidence should be disbelieved on the question that, there was an occurrence on that night in the house of Sripati. As in the number of persons who took part in the occurrence there was the evidence of Sripati, Dhiren and Sushila. There is also the evidence of. Sristidhar. According to them the number of; men who took part in the occurrence must, have been at least five as already stated, Sripati was beaten and so was Dhiren and Jatin was shot dead. A quantity of handloom cloths, money, a number of packets of vermilion were stolen. The occurrence, therefore, nrust have amounted to dacoity.

(2.) The next question for consideration in this appeal is whether the killing of Jatindra amounts to an offence under Section 396, Indian Penal Code. The evidence is that on getting scent of the approach of the neighbours the dacoits were trying to escape when they were pursued and Jatindra caught hold of one of the men and just on the west of the doba near tke courtyard of the house of Sripati, as stated by P.W. 9 Dhirendra, Jatindra threw down that man and sat up on him when he was shot dead. The definition of robbery in Section 390, Indian Penal Code, and the definition of dacoity in Section 391, Indian Penal Code, make it clear that the offence of dacoity is committed when the offender voluntarily causes or attempts to cause to any person death or hurt in carrying away or attempting to carry away property obtained by the theft; evidently, therefore, when Jatindra threw down one of the raiders on the ground and sat upon his chest, the offence of docaity was not atill completed, particularly when the raiders had not yet left the homestead of Sripati. The killing, therefore, of Jatindra must be held to have been committed in committing the dacoity so that the offence does amount to one under Section 396 Indian Penal Code.

(3.) The next and most important question for decision in this appeal is whether it has been proved beyond all manner of reasonable doubt that the present Appellants were concerned in the occurrence that took place in the house of Sripati. None of the witnesses recognised them during the actual commisison of the dacoity. The most important piece of evidence against them is that of Sristidhar Mandal, P.W. 4, who lives at Harinbari, within Sagar Police Station, about half a mile from the house of Sripati. It is his evidence that as he was coming to Sripati's house armed with a gun on hearing the hue and cry, he found, after he had crossed the khal that separates his house from that of Sripati and had come near the boundary of Sripati's house, 6/7 men coming towards them and in the light of his torch which he flashed on them he came to recognise Gajen and Bijoy, the present Appellants. Sristidhar says that he used to "know these men when he used to go to Pastibunia, Narayanitala and Loyalgunge and actually saw and heard them delivering speeches on the tebhaga movement in meetings. On catching sight of Sristidhar these men changed their direction and began running away. Sristidhar then made over his torch to his companion, viz., Bipin Pariya who has not been examined and tried to aim his gun but meanwhile they got out of sight in the jungle. Sristidhar followed them for a certain distance but could not find them. So he turned back and went to Sripati's house. The learned Judge has relied on the evidence of Sristidhar Mandal and the only question now is whether there is any reason for doubting his evidence. Sristidhar on reaching the house of Sripati told the persons he saw there that he had seen a number of the men going away and' from amongst them he recognised Gajen and Bijay. The witnesses, who corroborate him on this point are Dr. Kanai Lal Mitra, Hrishikesh Mahapatra, Nagendra Nath Jana, Narendra Nath Mandal, Jatindra Maity, Ananta Mandal, Gajendra Maity and also Sripati, Atul Chandra Mahapatra, Iswar Mandal and Dhiren Bhuiya.