Shankar Mandal Vs State of Jharkhand

2025:JHHC:10296

Cr. Appeal (S.J.) No.1087 of 2006

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[Against the judgment and order of conviction and sentence dated 22.03.2006 and 23.03.2006 passed by learned Additional Sessions Judge, FTC, Sahibganj in S.C. No.183 of 1996/S.T. No.53 of 2005]

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Shankar Mandal Son of Saitabi Mandal, resident of Narishdiara,

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P.S.-Sahibganj(M), District-Sahibganj

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Versus

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The State of Jharkhand .... .... .... Respondent ------ For the Appellant : Mr. Pankaj Kumar Ravi, Advocate For the State : Mr. S.K. Srivastava, A.P.P.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGEMENT

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CAV On 06/01/2025 Pronounced On: 03/ 04 /2025 Per-Pradeep Kumar Srivastava

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The present appeal is directed against the judgment and order

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of conviction and sentence dated 22.03.2006 and 23.03.2006 passed by learned Additional Sessions Judge, FTC, Sahibganj in S.C. No.183 of 1996/S.T. No.53 of 2005 whereby and whereunder, the sole appellant has been held guilty for the

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offence under section 395 of Indian Penal Code and sentenced to undergo R.I. of 7 years.

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FACTUAL MATRIX

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Factual matrix giving rise to this appeal is that on 08.07.1995 at about 8:45 PM, the informant Bhola Yadav has got reported his fardbayan at Sahibganj (T) Police station stating inter alia that while he was returning by Kiul Sahebganj passenger train 324 down and coming to Sahibganj from Mirzachawki, meanwhile 10-12 miscreants entered into the said passenger train and started committing robbery with the passengers. It is further alleged that one of the miscreants pointed pistol towards the informant and started demanding money then due to fear, he delivered Rs.30,000/- to the miscreants then the miscreants taking the money in his hand opened fire with the intention to kill the informant which caused injury on his back left side and he failed down. It is further alleged that all the miscreants are aged about 20-25 years and were talking in hindi. They have plundered with other passengers also and alighted from the train at Karamtola. The informant could identify the miscreants.

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Fardbayan, the informant, Bhola Yadav was recorded by A.S.I. Harihar Singh at Sadar Hospital, Sahibganj in operation

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theatre room on 08.07.1995 at about 20:45 hours and on the basis of above information Rail Sahebganj P.S. Case No.09 of 1995 dated 09.07.1995 was registered against unknown dacoits.

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Charge of investigation was undertaken by S.I. Bhupesh Kumar and after conclusion of the investigation; charge-sheet was submitted against two accused persons namely Shankar Mandal (appellant) and Chandra Shekhar Mandal. The case of Chandra Shekhar Mandal was split up by the concerned trial court due to his absconding during trial. The case of present appellant was committed to the court of Sessions, where S.C. No. 183 of 1996 was registered and after conclusion of the trial, the appellant has been held guilty and sentenced as stated above.

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Learned counsel for the appellant assailing the impugned judgment and order has vehemently argued that the prosecution has examined altogether 8 witnesses in this case and except the informant, none has supported the prosecution story as regards the presence and participation of present appellant in the alleged offence. The informant-cum-injured, who was examined as P.W.4 has completely gone by earlier statement (fardbayan) recorded by the police wherein he has neither stated the name of any miscreants nor has given any

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description of the miscreants except their age. It is further submitted that the investigating officer in this case has also not been examined, therefore, on what basis, the accusation against the appellant has come into light in this case, have not been proved beyond doubt. The informant was twice called for Test Identification Parade and he had opportunity to know the name of the appellant from the police, and thereafter again he was called upon for T.I.P and claimed to identify the present appellant in the T.I.P but surprisingly the original T.I.P chart has not been brought on record and the Magistrate, who has conducted the T.I.P has also not been examined in this case. It is further submitted that the identification of the present appellant before the court for the first time with his name, actual participation and overt act is absolutely an improvement during trial of the case. The learned trial court has miserably failed to appreciate the claim of identification of the informant and has further stated that two miscreants fired upon him on different parts of the body are also inconsistent with his earliest statement. The informant has also not produced his complete medical examination report and the said report was admittedly proved by P.W.1, which shows the nature of injuries to be simple without mentioning any case of

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firearm injury and has simply opined on the basis of statement of the injured that it was caused by firearm. No concrete evidence has been brought on record to establish that any firearm was used in causing injuries to the informant (P.W.4). The informant has also admitted that there was crowd of 150 miscreants in the bogi of the train and he was not knowing by their names and was also not acquainted with them earlier. It is further submitted that the informant has claimed in the FIR that he has delivered Rs.30,000/- to the miscreants due to fear but in his evidence during trial, he has stated that one of the miscreants snatched his bag containing the said rupees. It is an admitted case of prosecution that there was no recovery of any firearm or any looted money or its part from the conscious possession of the appellant. Learned trial court has taken sympathetically views only on the testimony of the informantcum-sole injured in this case for the basis of conviction of the appellant, which is not justified under law. As such, the impugned judgment and order of conviction and sentence of the appellant may be set aside, allowing this appeal.

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On the other hand, learned additional public prosecutor for the

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State defending the impugned judgment and order of conviction and sentence of the appellant has submitted that the

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learned trial court has rightly relied upon the testimony of the informant-cum-injured of this case, who has categorically identified the presence and participation of the present appellant in the alleged offence of dacoity along with other miscreants and has clearly stated about the overt act of the present appellant and also identified him not only in T.I.P but also during trial. Therefore, there is no reason to disbelieve the testimony of the injured witness, who had particularly seen the accused at the time of commission of offence. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellant. There is no substance in the points of argument raised on behalf of the appellant and no merits in this appeal, which is fit to be dismissed.

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I have gone through the impugned judgment and order in the light of rival submissions of the parties and perused the record of the case.

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It appears that altogether 8 witnesses have been examined in this case.

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P.W.1 is Dr. Mahesh Prasad , who has examined the

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injured-cum-informant and found two lacerated wounds:-

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(i) On left scapular region joint;

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(ii) On right scapular region and multiple black spots at his face and right and left shoulders’ region and in the back.

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It is opined that the injury caused by firearm and opinion regarding nature of injury was reserved till the report of expert opinion, which is marked as Ext.1.

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P.W.2 Abdul Hamid and P.W.3 Md. Israil have been

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declared hostile by the prosecution and expressed their no knowledge about the said occurrence.

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P.W.5 Dwarika Nath Sinha is an advocate clerk, who

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has proved the fardbayan of the informant recorded in the hand writing of S.I., marked as Ext.2.

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P.W.6 Navin Kumar Singh, ASM of Sahibganj

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(Railway ) has also stated that he was posted at Sahibganj at Railway Station at the relevant date and time and got telephonic message that one person has been injured, then he informed the doctor Vijay but he could not say whether the message was received by him or not. Later on, he came to know that one Bhola Yadav was injured but he has not reduced in writing the said information. He came to know from the police that one Bhola Yadav was injured but from the control room, he had not received information about any

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occurrence. This witness has not been factually cross-examined by the prosecution as he has simply replied that since 1986, he had been working as ASM.

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P.W.7 Ranjit Kumar Ghosh was posted as ASM at Karamtola Railway Station on 08.07.1995. According to him, he was on duty from 16 hours to 24 hours; Train No.324 down has arrived at the Karamtola Railway Station, where an injured person met him, who told his name as Bhola Yadav and also stated about robbery committed in the train. Thereafter, the train proceeded further and he also informed to ASM, Sahibganj Railway Station through telephonic message. There is nothing else in his evidence.

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P.W-8 Dhanai Murmu is also a formal witness who

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happens to be an advocate clerk. He has proved the signature of Judicial Magistrate, 1^st Class, Pankaj Kumar on T.I.P. chart as Ext.3 and had no knowledge when and how it was prepared.

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The most important witness in this case is the informant-cum-injured, Bhola Yadav (P.W.4) . According to his evidence, on 08.07.1995 at about 8 PM, he was returning from Kahal gaon to Sahibganj by down local passenger Train No. 324. When the train reached near Mirza Chowki and departed

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there from, 10-12 miscreants entered into train compartment, who were armed with country made pistols and they started plundering with the passengers. Out of them, two miscreants armed with pistol came towards him and he identified in the light of train, who is Shankar Mandal(appellant) and Chandra Shekhar Mandal. Both the miscreants pointed pistol on him and demanded money, meanwhile, his bag containing Rs.30,000/- was snatched by Shankar Mandal(appellant) and both the accused persons fired upon him by their pistols one by one. He sustained one firearm injury on shoulder and second on his backside. When the train reached near Karamtola Station, then all the accused persons fled away towards north side. He has further stated that when the train reached at Sahibganj Railway Station, then he went to Sadar hospital, where his treatment was going on and his statement was recorded by police but due to injury, he could not sign upon it rather he put his left thumb impression. He further states that T.I. Parade was conducted in the jail, where he has identified both the accused persons. Thereafter, for better treatment, he was sent to Bhagalpur and Kolkata.

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In his cross-examination, this witness admits in clear

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terms that he delivered the bag to Shankar Mandal(appellant)

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at the corridor of the compartment, not from seat and the accused persons did not come to his seat and they have not put the pistol on his chest. He has stated that prior to the occurrence, he was not acquainted with the accused persons. He further admits that he has given statement before the police that one of the miscreants pointed a pistol towards him and asked money, then he delivered Rs.30,000/- to him. Thereafter, the miscreants fired upon him which cause injuries on his back side. He further claims that he identified the accused persons twice in T.I. Parade. His clothes were stained with blood but

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not seized by the police. He could not produce the medical examination report of Bhagalpur and Kolkata. He has also not sated about any description of the miscreants at the time of recording his fardbayan. There were more than 100 miscreants in the said compartments. He also admits that he went for T.I. Parade twice and on the first date, he returned because T.I. Parade could not be conducted.

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From the aforesaid evidence relied upon by the prosecution, it is crystal clear that except the informant-cum-injured, no other witness has been able to prove the involvement and participation of the present appellant in the alleged offence. The appellant has been convicted on the basis of solitary

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evidence of the informant-cum-injured. From the evidence of P.W.4, the informant cum-injured, it is crystal clear that it suffers from material contradictions and infirmities and his claim for identification of the appellant appears to be extremely doubtful. In view of the fact that T.I.P. Chart has not been proved, the Investigating Officer has also not been examined to get the contradictions explained. Admittedly, this informant-cum-injured was not acquainted with the appellant prior to the occurrence and he has not given any description of the present appellant to form the basis of his identification. It is simply stated in the fardbayan that the accused persons were in between 20-25 years age and nothing else. None examination of Investigating Officer in this case, has also caused prejudice in the defence of the appellant. Therefore, it is not safe to convict the accused on the solitary evidence of P.W.4, which suffers from material improvement, contradictions and infirmities.

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In view of the above discussion and reasons, I find that learned trial court has not properly appreciated the evidence of P.W.4 in the right perspective in the light of attending circumstances of the case and other materials available on record. Therefore, the impugned judgment and order of conviction and sentence

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of the appellant is not justified under law and is liable to be set aside.

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Accordingly, the judgment and order of conviction and sentence of the appellant dated 22.03.2006 and 23.03.2006 passed by learned Additional Sessions Judge, FTC, Sahibganj in S.C. No.183 of 1996/S.T. No.53 of 2005 is hereby, set aside and this appeal is allowed.

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