LALUA DOM Vs. STATE

JUDGEMENT

(1.) The three appellants before us were tried by the Sessions Judge of Midnapore sitting with a jury on charges under Section 396, Penal Code, and also alternatively under Section 395 read with Section 397, Penal Code. The jury found the accused persons unanimously guilty under Section 395, Penal Code, but they unanimously found them not guilty of the remaining charges. The learned Judge accepted the verdict of the jury and convicted the accused persons under Section 395, I. P. C., and sentenced each of them to undergo rigorous imprisonment for a period of five years. The present appeal is directed against the above conviction and sentence,

(2.) The prosecution case, briefly stated, is as follows: One Bejoy Pal of village Ellaboni within district Midnapore is a person of some affluence. The village is 13 miles sway from Midnapore Kotwali P. S. On the night of the 16th Bhadra 1360. B. S. corresponding to the small hours of the morning of 3-9-1953 there was a dacoity at the house of Bejoy Pal between 1 A. M. and 1-30 A. M. According to the case of the prosecution Bejoy Pal and his wife Provabati were sleeping with their daughter Sandhyarani in their bed room on the first floor of the three storeyed mud-built house. At about 1 A. M. Bejoy Pal went out of his house through the western khirkee door for answering a call of nature and then he heard sounds of knocking at the sadar door on the opposite side. Bejoy Pal then challenged the persons who were knocking at the sadar door of the house and he was asked peremptorily to open the door. Bejoy Pal then realised that his house had been attacked by dacoits and he went away westwards into the village and raised a hue and cry for assembling the villagers. A number of villagers gradually assembled from all directions and they took their stand on various sides of the house for the purpose of apprehending the dacoits. Sasanka Pal, P. W. 5 who is an agnatic paternal uncle of Bejoy Pal and Sasanka's elder brother deceased Sankar Pal tried to approach the Sadar door of the house but they were threatened by the dacoits who pelted stones at them. While the villagers were assembling in the house of Bejoy Pal the dacoits had forced their entrance into the house and had looted some properties including cash and ornaments. Bejoy Pal's wife Provabati (P. W. 2) went up to the second floor of the house for taking shelter but she was followed there by some of the dacoits. She was forced by two dacoits to give away her car tops and four gold plated 'churis' and a ring. Similarly Sandhyarani, daughter of Bejoy Pal and Probhabati who was left alone in the bed room was forced to part with her necklace. After having looted the properties the dacoits came out and they were confronted by the villagers who numbered 15 or 16 including prosecution witnesses Sasanka Sekhar Pal (P. W. 5), Hemanta Kumar Pal, (P. W. 14), Atul Krishna Maity (P. W. 15), and Khudiram Chowdhury (P. W. 16). The dacoits attempted to effect their escape and they were chased by the villagers and a free fight took place between the two parties Sankar Pal who was one of the villagers who chased the dacoits hit a dacoit with a lathi and felled him to the ground. Thereupon several dacoits turned round and flashed torches on the pursuers and one of them also shot an arrow at Sankar which pierced him in the abdomen. After this the villagers lost heart and they gave up the chase. Sankar was brought to the village in a seriously injured condition. Before the dacoits could make good their escape a half shirt fell off from the head of a dacoit while he was passing under the branches of a bamboo clump. This was picked up by Sasanka Pal (P. W. 5) and carried to the village and subsequently made over to the police. At about 3 A. M. on the same night a party of villagers set out for Midnapore town with the wounded Sankar in a bullock cart. Information was lodged at the thana in due course and Sankar Pal was admitted in a hospital at Midnapore. Unfortunately Sankar died in the hospital soon after his admission. A police investigation followed and the three appellants before us were arrested on different dates and after the completion of investigation a chargesheet was submitted against them. There was a preliminary enquiry in the Court of a Magistrate and as a prima facie case was said to have been established against the accused persons they were committed to the Court of Sessions and tried and convicted and sentenced as stated above.

(3.) It has already been stated that although the dacoity was committed by a large number of persons only three persons were sent up for taking their trial. The case of these three accused persons has been dealt with separately by the learned Sessions Judge in his charge to the jury. Mr. Banerjee appearing on behalf of the appellants also placed the case of each accused separately before us. Before doing that, however, he made one or two general comments on the charge delivered by the learned Sessions Judge. He contended in the first place that two witnesses deposed rather in favour of the defence before the committing Magistrate and the evidence of these witnesses were withheld from the jury by the learned Public Prosecutor who conducted the prosecution. These two persons who were examined at the commitment stage, but were not examined during the sessions trial were Kalipada Mahato & Dilbodh Mahato. Mr. Banerjee contended that if these witnesses had been examined in the Sessions Court the jurors might have given their verdict in a different manner because the evidence of these persons would have been favourable to the accused. Mr. Banerjee, therefore, contended that the learned Sessions Judge should have asked the jurors to make a presumption against the prosecution and in favour of the accused on account of the non-examination of these two persons, and the omission to have done so amounts to a misdirection. This argument of Mr. Banerjee would have found favour with us if the prosecution had intentionally withheld the evidence of these two witnesses from the Sessions Court. But the order-sheet of the Sessions Court dated 10-3-54 would show that as a matter of fact these two witnesses were produced in the Sessions Court. But the Public Prosecutor who conducted the prosecution did not examine them apparently because he was not satisfied that the witnesses were witnesses of truth. As the witnesses were produced in the Sessions Court the defence could easily have put questions to these witnesses. As that was not done and the opportunity given to the defence was not availed of by the accused it cannot be said that the prosecution intentionally withheld the evidence of Kalipada and Dilbodh. That being the case the learned Sessions Judge did not certainly commit any misdirection by omitting to tell the jurors that an adverse inference should have been drawn against the prosecution for not bringing Kalipada and Dilbodh in in the witness box. The first objection taken by Mr. Banerjee to the charge delivered by the learned Sessions Judge, therefore, fails.