SHIVA MANJHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) SHIVA Manjhi and Jagdish Dom, both appellants before us, are aggrieved by the judgment and order dated 9th July, 1987 of XIIIth Additional Sessions Judge, Patna passed in Sessions Trial No. 595 of 1986 convicting and sentencing both of them to undergo imprisonment for life under Section 395, Indian Penal Code.

(2.) THE case of prosecution, in short, is that on the night intervening between 5.2.1986 and 6.2.1986, informant Kamla Devi (PW-1) posted at that time as a clerk in Bikram Block Office, after taking meal was sleeping in her official residence situated in Bikram Block campus alongwith her family members. She was sleeping alongwith her daughter Sandhya Kumari (PW-5) in the central room of her residence and in the adjoining eastern room, her younger son Raju Kumar (PW-4) was sleeping and in the adjoining western room on the entrance side, her elder son Manoj Kumar (PW-2) was sleeping. At about 1 o'clock, the door of room of informant was opened by a push and at the same time, a firing was made in the courtyard of the house of informant on the sound of which informant awoke and she wanted to rise from her bed when three miscreants suddenly entered her room and two of them caught hold of her and threw her on the bed and the third one put a pistol on her neck and ordered his two companions to take out boxes kept beneath the bed. On this, the two miscreants, after taking out boxes from the room, proceeded towards courtyard and when the boxes were taken out of the room, the miscreants who had put pistol on the neck of informant, dragged her and brought her in the courtyard and started assaulting her. Raju Kumar (PW-4), after hearing the voice of miscreants, managed to come out of the house after removing the iron rods of window and raised alarm of Chor Chor and elder son of informant also followed him. THE miscreants, carrying pistol, snatched ear tops from the ears of informant and1 handed those ear tops alongwith the boxes to two or three other miscreants who were standing outside the house near the northern wall of the house whose presence was felt by informant by their voices. When the neighbours started assembling there, all the miscreants, through the northern door of the house, fled away towards western side and they also opened fire. A mufflerr of one of the miscreants was left at the bed of informant. THE miscreants took away the articles from the house of informant. All the miscreants were identified by informant and her family members because at the time of occurrence, electric bulbs were lighting in the entire portion of the house of informant. M.A. Fatmi (PW-8), the then Inspector of Police, posted in Bikram Block, was on patrolling duty in the night and when he was crossing Bikram Bazar at about 1.45 hours, he heard sound of firing from the side of Bikram Block and also heard hulla and he then went to Block compound where he came to know that dacoity had taken place in the house of informant. He then went to the house of informant, saw the situation and came to know that dacoits had fled away towards northern canal and in the meantime, other police officers from Bikram Police Station also reached the place of occurrence and he ordered them to record the fardbayan of informant and he himself proceeded to chase the miscreants. In her fardbayan the informant raised suspicion on one Bigan Ram to whom she had given a sum of Rs. 40 as loan and on the morning of 5-2-1986, she had.gone to his house for taking back her money on which some altercation had taken place. According to informant, he used to visit her house and had knowledge about her house. Informant also gave a list of articles stolen in dacoity and this list includes different types of ornaments, different types of clothes, silver coins of Rs. 1000 and a cash sum of Rs. 500. On the basis of fardbayan of informant, a case under Section 395, Indian Penal Code against six unknown was drawn. MA Fatmi (PW-8) took up the investigation of the case. He visited place of occurrence and seized a muffler left by miscreants and an empty cartridge alongwith a broken latch of back door of the house. In the morning at about 7.50 a.m.,. he came to know that towards northern side of house of informant, some boxes, clothes and papers were found scattered under a tree and he then, alongwith Manoj Kumar, son of informant, went there and Manoj Kumar identified those articles. He seized those articles also. He squad of sniffer dogs, after smelling the muffler, first went to the place where scattered articles were found and thereafter, went to village-Naghar and entered the house of appellant Jagdish Dom who was arrested and thereafter the sniffer dog went to Raghopur Mushari and entered the house of appellant Shiva Manjhi and caught him and he was also arrested. Later on both appellants were put on test identification parade and were identified by informant and her daughter Sandhya Kumari (PW-5). On 18.3.1986, Investigating Officer was informed by Assistant Sub-lnspectorBashishtha Pandey (PW-7) that during the investigation of Bikram Police Station Case No. 73 of 1986 under Section 395, Indian Penal Code, some articles from the house of Manik Dom and Naresh Dom were recovered and who had been arrested. Manik Dom and Naresh Dom were remanded in this case and articles recovered from their house were put on test identification parade and some articles were identified by informant. THE police, after investigation, submitted charge-sheet against both the appellants as well as against Manik Dom and Naresh Dom under Section 395, Indian Penal Code.

(3.) RAJENDRA Prasad Yadav (PW-3), in his evidence, has said that on 18.2.1986, he was posted as Judicial Magistrate, 1st Class Danapur and on that day he conducted test identification parade of both the appellants and they were identified by informant and her daughter Sandhya Kumari (PW-5). He has proved test identification chart which is in his pen and certificate and which is marked Exhibit 2. From the evidence of informant, her son Raju Kumar and daughter Sandhya Kumari (PW-5) we find that a dacoity in the house of informant was committed in the night between 5.2.1986 and 6.2.1986 in which articles such as ornaments clothes etc. were taken away from her house. The evidence of Dr. Amrendra Narain Jha, who was a neighbour of informant and who had reached the place of occurrence after hearing the sound of firing the evidence of MA Fatmi (PW-6), the Investigating Officer of this case, who at the relevant time, was posted as Police Inspector in Bikram Police Station and had reached the house of informant after hearing the sound of firing, the evidence of Bashishtha Pandey (PW-7), (PW-5), he then Assistant Sub-Inspector of Police of Bikram Police Station who had also reached the house of informant on hearing the rumours of dacoity, further support that a dacoity in the house of informant was committed on the night between 5.2.1986 and 6.2.1986. The evidence of informant and her daughter Sandhya Kumari (PW-5) that they both identified both the appellants in test identification parade coupled with the evidence of RAJENDRA Prasad Yadav (PW-3), Judicial Magistrate who held test identification parade proves that appellants were identified among those dacoits who committed dacoity in the house of informant. The learned Counsel for the appellants has argued that the informant, him her evidence has admitted that some articles said to have been recovered from the joint house of co-accused Naresh Dom and Manik Dom were shown to her by calling her to police station before those articles were put on test identification parade and this conduct of police does not rule out the possibility that the appellants, in similar way might have been shown to informant and her daughter before they were put on test identification parade, there was no occasion for her not admitting the fact that appellants had been shown to her, had it been done so. Considering her admission that those articles which she identified in test identification parade were shown to her before test identification parade, two other co-accused persons Naresh Dom and Manik have already been granted acquittal by the Court below. The basis of acquittal of these two co-accused is the admission of informant. So, in absence of any evidence or circumstance, that appellants were shown to informant and her daughter before they were put on test identification parade it cannot be presumed that they were shown to them before they were put on test identification parade. There is no scope of any conjecture or surmises in this regard. Beside this had the police shown the appellants to informant or her daughter before they were put on test identification parade, at least appellant Jagdish Dom must have stated this fact in his examination under Section 313, Code of Criminal Procedure because when a specific question was put to him that he was identified in test identification parade; he simply replied that he used to visit the block office, therefore, he was well known to all persons and at that time, he did not say that he was shown to informant and her daughter before he was put on test identification parade.