Jharkhand High Court
Shankar Mandal Son Of Saitabi Mandal vs The State Of Jharkhand on 3 April, 2025
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,
P.S.-Sahibganj(M), District-Sahibganj
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Pankaj Kumar Ravi, Advocate
For the State : Mr. S.K. Srivastava, A.P.P.
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PRESENT
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
1. The present appeal is directed 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 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.
FACTUAL MATRIX
2. 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.
3. 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.
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.
4. 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 informant-
cum-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.
5. On the other hand, learned additional public prosecutor for the
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.
6. 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.
7. It appears that altogether 8 witnesses have been examined in
this case.
P.W.1 is Dr. Mahesh Prasad, who has examined the
injured-cum-informant and found two lacerated wounds:-
(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.
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.
P.W.2 Abdul Hamid and P.W.3 Md. Israil have been
declared hostile by the prosecution and expressed their no
knowledge about the said occurrence.
P.W.5 Dwarika Nath Sinha is an advocate clerk, who
has proved the fardbayan of the informant recorded in the
hand writing of S.I., marked as Ext.2.
P.W.6 Navin Kumar Singh, ASM of Sahibganj
(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.
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.
P.W-8 Dhanai Murmu is also a formal witness who
happens to be an advocate clerk. He has proved the signature
of Judicial Magistrate, 1st Class, Pankaj Kumar on T.I.P. chart
as Ext.3 and had no knowledge when and how it was
prepared.
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.
In his cross-examination, this witness admits in clear
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
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.
8. 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.
9. 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.
10. 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.
11. The appellant is on bail, hence, he is discharged from liability
of bail bond. The sureties are also discharged.
12. Pending I.A(s), if any, is also disposed of accordingly.
13. Let a copy of this judgment along with Trial Court Records be
sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 03/04/2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.1087 of 2006
