MADANLAL AGARWALLA Vs. STATE

JUDGEMENT

(1.) THIS appeal was heard on 2 -10 -1958 and at the dose of the hearing I was of opinion that the prosecution failed to prove the offences with which the Appellant was charged. I accordingly ordered that the Appellant be acquitted and the convictions and the sentences be set aside and directed that he be set at liberty forthwith observing that reasons would follow. The reasons are as follows.

(2.) THE Appellant Madanlal Agarwalla who was the first accused before the trial court filed this appeal against his convictions and sentences under Section 3 of the Explosive Substances Act and under Sections 326 and 324 of the Indian Penal Code by Shri B.R. Rao, Assistant Sessions Judge, Balangir. He was sentenced to five years rigorous imprisonment for the offence under Section 3 of the Explosive Substances Act, to three years' rigorous imprisonment and a fine of Rs. 1001/ - in default to rigorous imprisonment for one month more for the offence under Section 326, I.P.C. and to one year's rigorous imprisonment for the offence under Section 324, I.P.C. The sentences for the offence under Section 3 of the Explosive Substances Act and Section 326, I.P.C. are to run consecutively while the sentence for the offence under Section 324, I.P.C. shall run concurrently with the sentence for the offence under Section 326, I.P.C.

(3.) THE prosecution case is that the first three accused, Madanlal Agarwalla, Dungarmal Agarwalla and Parameswari Agarwalla are Marwaris and hail from village Biwani in Hissar district of the Punjab (India) and the other accused persons Kuber Sahu belongs to the village Sargiguda in Balangir district. It is stated that these four accused persons got down together at Muribahal Railway Station from the train coming From Titlagarh in the evening of Saturday, 9 -1 -1954. They then proceeded by walk upto the village Gudighat, followed by Makhna Harpal (P.W. 13) who is a resident of village Gudighat and who also got down from the same train. These accused persons, according to the prosecution, were seen by Bansidhar Singh Majhi (P. W. 9) and Sitaram Bindhani (P. W. 11) at Gudighat before the sunset time near the betel shop of Sitaram (P. W. 11), going towards Tikarpara. Accused Parameswari went to the betel shop and asked P.W. 11 for tea but was told that no tea was prepared in the shop. P.W. 11 enquired from the accused Kuber Sahu where they were all going and was told that the accused Dungarmal was a Truck Driver and that they were all going for Patnagarh in a case for overloading a truck with rice. The prosecution case further is that later in the night of that day these four accused persons were seen by the villagers of (sic) in a room in the incomplete new house of Anaba Mahanand (P. W. 1) of that village. They were first found in that room talking in whispering tones, by Matwali Majhi (P. W. 4) who was the Halia of Anaba (P. W. 1) while P.W. 4 was going to the Khala to sleep. On hearing those whispering sounds he went and informed his master (P. W. 1) who then called his other Halias P.W. 5 and another and went to that new house with a lantern. When questioned by P.W. 1 as to who they were and where they were going, it is stated, the Appellant replied that they were going to Patnagarh to engage a lawyer in a case matter. But according to P.W. 1 as some suspicion arose ill his mind, he sent his Halia Mahanti Mugri and Matwali Majhi (P. W. 4) to call the choukidar, the Jhankar and other villagers. The Markand Jhankar (P W. 3), Tengnu Mugri (P.W. 10), Laxmidhar Chinda (P.W. 18) and some other villagers came there to know who these strangers were. It appears that the Appellant also told the villagers on enquiry that the accused persons were going to Patnagarh in a case matter. But the villagers also, according to the prosecution case, suspected the accused persons and at the suggestion of P.W. 1, the Jhankar (P. W. 3) went in that night to Tikarpara Outpost to report the matter to the Police. Some of the villagers kept watch over the accused persons throughout that night. P.W. 3 reported the matter at Tikarpara Outpost to the constable Gangadhar Nayak (P. W.26) who was then in charge of the outpost due to the absence of the Assistant Sub -Inspector K.C. Nanda (P. W. 23) who went to Titlagarh for giving evidence. But the constable simply asked the Jhankar to watch the accused persons and to bring them to the outpost if anything suspicious was found or to leave the accused persons after entering their names in the Kunua Bahi (Stranger's Register) if nothing suspicious was found. P.W. 3 returned to the village in the next morning of Sunday 10 -1 -1954. He and the other villagers took the four accused persons from P.W. 18 new house to the ex -Gountia Minaketan Pujhari (P. W. 2) for the purpose of interrogating and search. They met the Gountia on the way in the outer courtyard of Tengnu Mugri's (P. W. 10) house. It is stated that accused Parameswari was holding the bag (M.O. I.) in his hand. P.W. 2 asked the Jhankar (P.W. 3) to search the contents of that bag and proceeded to enquire from the accused persons about their names and addresses for noting in the Strangers Register (M.O. VII). The Jhankar took the bag from the accused Parameswari and opened it. He found a smaller bag (M.O. II) inside the bigger bag (M.O. I). On opening the smaller bag he brought out from it five round articles appearing like balls of jute thread. He placed four of those balls on the ground and was examining the fifth one by holding it in his hand.