INDESH MAHTO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the Judgment dated 28.2.2004 passed by the IIIrd Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 348 -B of 1988, whereby the learned Additional Sessions Judge has convicted the appellant for the offence under Sec.395 of the Indian Penal Code and sentenced him to undergo R.I for a period of ten (10) years and also to pay a fine of Rs. 10,000.00 (Rupess Ten Thousand) only, in default to undergo R.I. for a further period of one year.

(2.) AS it appears that initially this appellant and other five accused persons were jointly charged for the offence under Sec.395, Indian Penal Code in Sessions Trial No. 348 -B/98. After examination of almost all the prosecution witnesses, the present appellant Indesh Mahto and other three accused persons absconded, whereas one other co -accused Keshwar Singh died during the pendency of the trial and therefore, the only remaining accused Sarjug Sah faced the full trial and then he was acquitted on 30.4.2001.

(3.) ON 5.6.1986, at 5.30 a.m., on the basis of fardbeyan of Ishwari Sao (PW 3), a case was registered under Sec.395 Indian Penal Code against the appellant and one another namely Akhilesh Prasad and also 20 -25 unknown persons. In fardbeyan, it was alleged that on 4.6.1986, at about 11.00 p.m. the informant was sleeping in his house and his children were studying in the outer shop. At that time, he heard a sound of opening of door and then he saw from the window that 20 -25 persons were standing outside. The children came out of the shop saying dacoits have arrived. The informant 'swife saw some persons were armed with gun and then she awoke the informant and told that dacoits have come. The informant and his family members raised alarm. The villagers were also raising alarm of "dacoit dacoit ' upon which dacoits made 2 -3 firings. The information directed his son to carry the woman and children to the adjacent house of his elder brother and the informant stood in the courtyard with garasa. The dacoits were trying to break the door of the house. Some dacoits climbed over the roof, hearing the sound thereof, the informant handed over the garasa to his child and jumped over the roof and started pelting tiles towards the dacoits. Thereupon, the dacoits started firing. It is said that the informant identified one of the dacoits by voice as Indesh Mahto son of Munsaf Mahto. The informant slept over the roof and looked outside and then in the electric light, he saw the appellant was armed with a gun and wrapped his face by 'galmochha '. Some of the dacoits had not wrapped their faces. The dacoits were 20 -25 in numbers. Since the miscreants were firing on the roof and as such, the informant came out of the courtyard and along with his son jumped in the house of his brother and from there, he started fleeing away, upon which one of the dacoits namely Akhilesh Prasad who was the brother -in -law of the present appellant, fired upon the informant causing injury on his right hand. Thereafter, the dacoits after breaking the doors of the house of the informant, entered and committed dacoity. It is further said that the informant climbed over the roof of his house and went towards the village and at that time, the villagers assembled and started chasing the dacoits. The dacoits shot fire towards the mob causing injuries on 3 -4 persons and after about 45 minutes, the dacoits fled away after committing dacoity. When the informant came back to his house, his wife and daughter - in -law told him that the dacoits have looted away gold and silver ornaments, cash amounting to Rs.