Atwa Marandi @ Aitwa Marandi ..… v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 873 of 2008 Atwa Marandi @ Aitwa Marandi ..…… Appellant Versus The State of Jharkhand ……. Respondent With Cr. Appeal (SJ) No. 888 of 2008 Brij Lal Manjhi @ Benilal Manjhi ..…… Appellant Versus The State of Jharkhand ……. Respondent ------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the Respondent -------- : Mr. Atanu Banerjee, Advocate : Mr. Suman Kr. Ghosh, Advocate : Mr. Naveen Kumar Ganjhu, APP ------- Judgment 12/Date: 21st February, 2024 1. Both the criminal appeals being Cr. Appeal (SJ) No.873 of 2008 and Cr. Appeal (SJ) No.888 of 2008 have been heard together and are being disposed of together, since, both have arisen out of common judgment dated 11.06.2008 passed in S.T. No.137 of 2006 (arising out of Gomia P.S. Case No.93 of 2005, G.R No.835/2005) passed by Sri Mahesh Chandra Verma, learned Additional Sessions Judge, F.T.C-I, Bermo at Tenughat. 2. Both the appellants i.e. appellant-Atwa Marandi [Cr. Appeal (SJ) No.873 of 2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888 of 2008] have been convicted vide judgment of conviction dated 11.06.2008 and sentence dated 16.06.2008 passed by Sri Mahesh Chandra Verma, learned Additional Sessions Judge, F.T.C-I, Bermo at Tenughat for the offences under Sections 395 of the I.P.C and have been 2 sentenced to under R.I for five (05) years and R.I. for five (05) years each respectively and to pay fine of Rs.1,000/- and Rs.1,000/- each respectively for the offences under Section 395 of the IPC. 3. The prosecution case, in brief, is that on 07.10.2005 on receiving a O.D slip from Gomia hospital, regarding injured Jailal Manjhi, the then Officer-in-charge of P.S. Gomia with S.I Indrapal Oraon and other staff went to said hospital and fardbeyan (Ext-2) of Jailal Manjhi was recorded by Officer-in- charge Sri Mohan Pandey and the F.I.R. being Gomia P.S. Case no.93/2005 for the offences under Sections 395 and 397 IPC was registered at Police Station, Gomia. The informant Jailal Manjhi had stated that in previous night when he with his wife and child was sleeping in the house then at around 11.00 p.m., some persons after knocking his door, asked to open the door and as soon as he awoke, by that time the door was found broken and 8-10 persons had entered his house and they started assaulting him and those persons repeatedly asked as to where money and silver coin have been kept and on his reply that he was having no money one of the intruders gave blow on his head by the Gun. Thereafter the miscreants in order to trace the money started digging the ground of his house at two places but when they did not find the money they caught hold of his eight (08) years son Bablu and threatened them to take his son. Then his wife Devanti Devi embracing the son in arms, requested him to save the son and then he informed the miscreants that an amount of Rs.4000/- which he managed to purchase the Ox, was lying in the box and upon receiving this information, the miscreants had broken the lock of the box and removed cash of Rs.4000/-, Silver Chain 3 and Silver Payal of his wife from that box and while leaving they caused explosion like of a bomb. He further stated that on hearing sound some of his neighbours came and in morning he learnt that the dacoity was also committed in 2-3 other houses of the village including the house of his neighbour Mohan Murmu and that some houses were locked from outside by the miscreants. He also claimed to identify the miscreants in the light of Lantern and he recognized two of them whose names are Aitwa Marandi and Pradip Manjhi and he can identify the other also and stated that Aitwa Marandi was wearing Lungi and Vest and Pradip Manjhi was wearing Fulpant and white Chekdar (i.e. striped) full sleeve shirt. He also stated that the miscreants were of blackish complexion, were of general height and were speaking in Manjhi language and that three dacoits were wearing Sando Ganji (i.e. Vest) and Gamchha (i.e. Towel) and who were having pistol and one of them was wearing black colour shirt and pant and was having a long Bandook i.e. the Gun in his hand and the other miscreants were having a long Gun in his hand and the other miscreants were having Lathi and Farsa and all of them were of the age group of 20-30 years.
Legal Reasoning
meeting, as alleged, was in the night and was only for some fleeting moments. Para-17:- In Subash v. State of U.P. [Subash v. State of U.P., (1987) 3 SCC 331 : 1987 SCC (Cri) 573] , the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this Court in paras 8 and 9 as under: (SCC pp. 335-36) “8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. 9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Ext. Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had “sallow” complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ext. Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras [Muthuswami v. State of Madras, 1951 SCC 1020 : AIR 1954 SC 4 : 1954 Cri LJ 236] where an identification parade was held about 24 In case Mohd. 2½ months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. Abdul another Hafeez v. State of A.P. [Mohd. Abdul Hafeez v. State of A.P., (1983) 1 SCC 143 : 1983 SCC (Cri) 139 : AIR 1983 SC 367] it was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.” 51. It has been held in the case of Gireesan Nair and Others vs. State of Kerla reported in (2023) 1 SCC 180 at para-31, 32 and 48 as follows:- “Para-31:- In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) (Cri) Supp 489] 12 SCC 554 and Suryamoorthi v. Govindaswamy [Suryamoorthi v. Go vindaswamy, (1989) 3 SCC 24 : 1989 SCC (Cri) 472] ). : 2004 SCC Para-32:- If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra [Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ). Even a TIP conducted in the presence of a police officer is inadmissible in light 25 (Chunthuram versus
Arguments
4. Heard Mr. Atanu Banerjee, learned counsel for the appellants in both the Cr. Appeal (SJ) No.873/2008 and Cr. Appeal (SJ) No.888/2008 and Mr. Naveen Kumar Ganjhu, learned APP for the State. 5. Learned counsel for the appellants has submitted that the judgment of conviction dated 11.06.2008 and the sentence dated 16.06.2008 passed by the learned Court below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below has passed the impugned judgment and sentence only on surmises and conjectures. It is submitted 4 that the learned Court below has failed to appreciate the evidence of P.W-2-Devanti Devi and P.W-5-Jailal Manjhi minutely as they were the interested witnesses. It is submitted that the learned Court below has failed to consider the major contradiction between the evidence of P.W-2 and P.W-5 who have claimed to be eye-witnesses of this case. It is submitted that the learned Court below had failed to consider that other witnesses were the hearsay witnesses. It is submitted that P.W-2 and P.W-5 have specifically stated that the alleged night of occurrence was dark and only P.W-5 has claimed to identify the appellant in light of lantern but P.W-2 has not stated anything regarding the source of light as deposed by P.W-5 nor I.O (i.e. P.W-6) has recovered any lantern at the alleged P.O and as such there is no corroboration of this fact. It is submitted that the P.W-5 had not disclosed the name of the appellants to his neighbours who have arrived at his house just after the occurrence when he narrated whole alleged occurrence to them and those neighbour have been examined as P.W-3 and P.W-4. It is submitted that the learned Court below has failed to consider that the appellants are the residents of same mohalla where P.W-2 and P.W-5 are residing and some enmity had developed between P.W-5 (Informant) and the appellant no.1- Aitwa Marandi prior to the alleged occurrence. It is submitted that no residue of the bomb was seized or recovered by the I.O (P.W-6) from the alleged place of occurrence to corroborate this fact although it was alleged that after committing the dacoity the accused persons had also exploded the bomb at the alleged P.O and ran away. It is submitted that no occurrence had taken place at that night as have been stated by the defence witnesses. It is submitted that the doctor (P.W-1) has also stated that the 5 injuries were found on the persons of P.W-5 can also be possible by fall. It is submitted that the P.W-3 and P.W-4 namely Govind Murmu and Mohan Manjhi are not the eye witnesses of the occurrence. 6. It has been submitted that both the appellants have got no criminal antecedent and nothing has been recovered from the possession of both the appellants. It has been submitted that the appellant-Atwa Marandi [Cr. Appeal (SJ) no.873/2008] has remained in custody for around two years and three months and the appellant Brij Lal Manjhi [Cr. Appeal (SJ) no.873/2008] has remained in custody for around two years and ten months. However, the learned Court below has convicted both the appellants i.e. appellant-Atwa Marandi [Cr. Appeal (SJ) no.873/2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) no.873/2008] merely on the basis of evidence of P.W-2 and P.W-5 respectively. It has also been alternatively submitted that the appellants have remained in custody for a sufficient long period and as such lenient view may be taken against them and the period of sentence may be reduced. 7. On the other hand, learned APP for the State has submitted that the impugned judgment of conviction and sentence are fit and proper and no interference is required from this Court. It is submitted that this is a case of robbery in the house of the Informant who has been examined as P.W-5. It is submitted that P.W-2 is the wife of the informant and P.W-5 is the informant himself and they have fully supported the prosecution case and they have identified the appellants. It is submitted that P.W-3 namely Govind Murmu and P.W-4 namely Mohan Manjhi have also supported and corroborated the prosecution case. It is 6 submitted that P.W-3 had also identified appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888 of 2008]. It is evident from the FIR that accused persons came without covering their face and as such they were identified by the informant and his wife in the light of Lantern. It is submitted that P.W-6 namely Indrapal Oraon is the Investigating Officer (i.e. the I.O) of this Case and who had arrested both the appellants and he has also supported and corroborated the prosecution case. It is submitted that in view of the above there is no infirmity in the impugned judgment and sentence passed by the learned Court below hence this Criminal Appeal may be dismsised. 8. Perused the Lower Court Record and considered the submissions of the learned counsel for both the sides. 9. It transpires that the FIR was lodged on 07.10.2005 by the informant under Sections 395 and 397 of the IPC against the appellants and several other unknown persons (sic). 10. It transpires that the police had submitted charge sheet under Sections 395 and 397 of the I.P.C on 09.01.2006 before the learned ACJM, Bermo at Tenughat against the appellants and the one another person namely Sunder Manjhi and the learned ACJM, Bermo at Tenughat had taken cognizance against the appellants and said Sunder Manjhi for the offence under Sections 395 and 397 of the I.P.C on 09.01.2006. 11. After supplying the police papers to the appellants, the case was committed to the Court of Sessions. 12. The charges were framed under Sections 395 and 397 of IPC against the appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888 of 2008] and one Pradip Manjhi on 21.07.2006 by Sri Sushil Kumar Jha, learned Addl. Sessions Judge, FTC-II, Bermo 7 at Tenughat and to which they pleaded not guilty and claimed to be tried. 13. It transpires that the charge was framed under Section 395 IPC against the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873 of 2008] on 01.02.2007 by Sri Sushil Kumar Jha, learned Addl. Sessions Judge, FTC-II, Bermo at Tenughat and to which he pleaded not guilty and claimed to be tried. 14. It transpires that both the Sessions Trial were clubbed together on 22.03.2007 by the learned Court below. 15. During trial the prosecution has got examined six (06) witnesses, who are as follows: (i) (ii) (iii) (iv) (v) (vi) P.W-1 is Dr. Gajendra Prasad Singh, the Doctor, P.W-2 is Devanti Devi i.e. the wife of the informant, P.W-3 is Govind Murmu, P.W-4 is Mohan Manjhi, P.W-5 is Jailal Manjhi, is the informant and P.W-6 is Indrapal Oraon i.e. the Investigating Officer. 16. The prosecution has got marked the following documents as the Exhibits in support of its case, which are as follows:- (i) Exhibit-1 is the injury report of Jailal Manjhi (i.e. the informant), (ii) Exhibit-2 is the fardbeyan and (iii) Exhibit-3 is the formal F.I.R. 17. Thereafter the appellants were examined under section 313 Cr.P.C on 13.03.2008 by the learned Additional Sessions Judge, F.T.C-I, Bermo at Tenughat and to which they denied the circumstances put forth before them. 18. The defence in support of his case got examined three (03) witnesses, who are as follows:- (i) D.W-1 is Ramjee Lal Manjhi, (ii) D.W-2 is Kullu Manjhi and (iii) D.W-3 is Khirudhar Sao. 8 19. However, no documents have been exhibited on behalf of the defence side. 20. Thereafter the learned Court below, after considering the case of the parties, has convicted the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873 of 2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888 of 2008] and sentenced them to undergo imprisonment on different counts as mentioned above. Hence, this criminal appeal has been filed. Therefore, appreciation of evidence of both the sides is required. 21. P.W-1 is Dr. Gajendra Prasad Singh i.e. the Medical Officer (Doctor) who had examined the injured-informant Jailal Manjhi, aged 35 years and found the following injuries on his person: “(i) Lacerated wound on the forehead ¼” x ¼”; (ii) Swelling on the left ankle joint 1” x 1”; Nature:- Both simple in nature caused by hard and blunt substance. An injury within 12 hours. He has proved injury report of informant marked as Exhibit-1. During cross-examination, he stated that he has not mentioned colour of injury. However, he also pointed that such injury is also possible due to fall on the stone. Thus, from scrutinizing the evidence of P.W-1 i.e. the Doctor, it is evident that he had examined the injured-informant P.W-5 and had found two injuries which were found to be simple in nature. 22. P.W-2 is Devanti Devi, the wife of the informant and she stated during her evidence that the occurrence took place around two years ago at around 12.00 p.m. in the night and at that time she along with her husband and her son Babloo aged around 6-7 9 years were sleeping and the door of the house was closed, then suddenly 10-12 persons after knocking the door, had entered into the house and demanded Silver and money to which they denied and then they threatened to take away the boy and thereafter she disclosed that there is Silver Chain and Rs.4,000/ in the box and upon which the miscreants looted Rs.4,000/- and Silver Chain from the box and they had also assaulted her husband by the Gun on his head and due to which her husband sustained head injuries. She also identified the miscreants namely Pradeep and Atwa Marandi-appellant [Cr. Appeal (SJ) No.873/2008] and one another person also. Though she could not disclose the name but she pointed out towards the accused Pradeep, accused Atwa and accused Brij Lal. She further stated that on the next date, her husband had gone to the Police Station. 23. During cross-examination, she stated that she is acquainted with appellant-Atwa [Cr. Appeal (SJ) No.873/2008] and one Pradeep two years prior to the occurrence as both were residents of village Chellia. She has shown ignorance for having acquaintance with one Dasai Manjhi. She also stated that when she awoke, she found that the doors of her house were knocked and pushed and two miscreants having Bandook i.e. Gun and the accused Pradeep and accused Atwa were having Bandook i.e. the Gun and the other miscreants having Lathi and the Dacoits had not concealed their face and at that time it was dark night. However, the Dacoits had not tied them but they made him to sleep on the land and one accused-Pradeep had dig the land of her house by the Sabbal and said Sabbal was brought by the accused-Pradeep and the land was dig for around one hand in around half an hour and at that time she along with her husband were sleeping. She further stated that the door of her house is 10 wooden having a lock on the door. She further stated that the third person (other than Pradeep and Atwa as noted by the court) i.e. the accused appellant- Brij Lal Manjhi (Cr. Appeal (SJ) No.888/2008) and when accused Pradeep was digging the land then all the persons were standing there. They have no agricultural field but they earn. However, the accused Atwa and Pradeep never came to her house prior to the occurrence. Her husband does the work of labour during day time and they used to save Rs.4,000-5000/ in a year and they used to keep the cash, cloth and jewellery etc. in the box and the box is not locked. 24. Thus, from scrutinizing the evidence of P.W-2 it would appear that although she has supported the prosecution case and has identified three persons including both the appellants i.e appellant Atwa Marandi [Cr. Appeal (SJ) No.873/2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008] and also on miscreant Pradeep for having gun in their hand and for looting her household articles, cash and jewellery in association with other miscreants. Even she has identified both the appellant Atwa Marandi [Cr. Appeal (SJ) No.873/2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008] and one Pradeep Manjhi in the Court. However, her evidence does not appear to be satisfactory because it is improbable that the appellants, being known to her, would commit dacoity without concealing their face. Even she has not disclosed the name of the appellant to her nearby neighbours after the occurrence. Thus, P.W-2 is an interested witness and her evidence will be again tested. 25. P.W-3 is Govind Murmu, who stated during evidence that on 06.10.2005 while he was in the house at night then he heard alarm and he tried to come out from the house then found that his door has been locked from outside and alarm was being 11 raised from the house of Jailal (i.e. the informant) and the house of Jailal is situated after three house from his house. After around two hours some villagers had opened the lock from the outside then he learnt that the dacoity had taken place in the house of Jailal-P.W-5 (i.e. the informant) and the he went to the house of Jailal and found him in a pool of blood and blood was oozing out from his head and by that time the Dacoits had fled away and at that time no Doctor had arrived. Thereafter they had taken the informant Jailal to Gomia Hospital at around 7.00 a.m in the morning and the police also arrived in the hospital and had recorded the fardbeyan of Jailal. 26. During cross-examination, he stated that the occurrence of dacoity had not taken place during his presence and the accused Brij Lal-appellant [Cr. Appeal (SJ) No.888/2008] is his brother in-law in relation and one Dasai is his father in-law and the accused Brij Lal and Dasai are co-parceners/partners in the landed property. He has denied the suggestion that a dispute is going on between his father in-law and the father of Brij Lal with regard to land. 27. Thus, form scrutinizing the evidence of P.W-3, it is evident that he is a hearsay witness and had not seen the occurrence and had went to the place of occurrence after two hours. But he had seen the informant in the pool of blood and he had also taken the informant to the hospital at Gomia. The defence has pointed out that due to land dispute between the father in-law witness (P.W-3) on the one hand and the father of the appellant-Brij Lal on the other hand with regard to the land dispute. Thus, the P.W-3 is an interested witness and it is evident that P.W-2-Devanti Devi had not disclosed the names of 12 both the appellants before him when the lock of door of her house was opened by him and one Mohan Manjhi. 28. P.W-4 is Mohan Manjhi, who stated during his evidence that he woke up on hearing alarm coming from the house of Jailal i.e. the informant and he tried to come out from the house after opening the door but it was found locked from the outside and the door was not opened. Later on he learnt that a dacoity had taken place and even some Bomb was hurled and after two hours the villagers had opened the door of his house then he went to the house of informant Jailal and found that blood was oozing out from his head and Jailal disclosed him that 10-12 dacoits had arrived at his house and he also found that the land of his house was dig at 1-2 places. However, the informant Jailal had not disclosed the name of the dacoits. During his cross-examination, he has stated that he had not seen the dacoity from his eyes and he had gone to the house where dacoity had taken place around 11.00 p.m. 29. Thus, from scrutinizing the evidence of P.W-4, it is evident that although he had supported the prosecution case on the point of the occurrence but he had not supported the prosecution case that the appellant Atwa Marandi and Jailal and other ten persons had done dacoity in the house of the informant. Thus, P.W-4 has not supported the prosecution case against both the appellants on the point of their participation and hence his evidence is not reliable. 30. P.W-5 is Jailal Manjhi (i.e. the Informant), who has stated during his evidence that the occurrence had taken place in the 10th month in the year 2005 in the night of 6/7 and at that time he was sleeping in his house at Cheriatand and his wife Devanti and son Babloo were also sleeping then in the meantime around 13 8-10 persons entered into his house at 11.00 p.m in the night after opening the door of his house and started assaulting him and were demanding cash and Silver Jewelries and Silver Coins and upon which he stated that he has no Silver Coin then they took out a big Pistol and assaulted on his head due to which he sustained head injury and the blood started oozing out and they also started searching Silver Coin by digging the land of his house but nothing could be found as he had no Silver Coin. Thereafter they asked him to give the money i.e. cash otherwise they will abduct his child and they caught hold of the hand of his son Babloo and tried to drag him but his wife caught hold of her son and started weeping and in order to save his child she disclosed before the dacoits that Rs.4,000/- cash has been kept in the box for purchasing the Ox and the Silver Payal and Chain of his wife were also in the said box. Thereafter the dacoit took away Rs.4,000/- cash and Silver Payal and Silver Chain from the box and threatened him of dire consequence and while moving outside they also hurled the Bomb. He had identified the miscreants in the light of lantern who had assaulted him and he can identify them. He has further stated that he had identified one of the accused Pradeep Marandi and the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873/2008] at the place of occurrence on the spot and had identified one another accused- appellant Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008] after one month during TIP in the jail. He has identified all the three accused persons including both the appellants before the Court below and stated that they in association with other associates had committed dacoity in his house. Thereafter he had gone to the hospital on the next day after the occurrence and he had got severe head injury and the police had also arrived at the hospital 14 and had recorded his statement there and he had put his thumb impression on the fardbeyan whereas one Govind Murmu-P.W-3 had put his signature as a witness. 31. During cross-examination, he stated that there is house of one Budhan Manjhi (i.e. cousin brother of the informant in front of his house) and there is house of one Mohan Murmu (i.e.P.W-4) adjacent to his house. The dacoits had asked him to open the door then he raised alarm but no one came and the witness himself states that dacoits had put lock on the door of 8- 10 locks which is adjacent to his house and the dacoits remained in his house for around two hours. He also stated that his Basti Mukhiya of his caste is called „Mahto‟ and there are two society in village Cheriatand and there are two Mahto. He further stated that Tejo Manjhi is „Mahto‟ of his society and he happens to be son of his Mama (i.e. Maternal Uncle) whereas Barhan Manjhi is second „Mahto‟ of Basti who is from the society of accused appellant-Atwa. He denied the suggestion that he used to put pressure upon the appellant-Atwa [Cr. Appeal (SJ) No.873/2008] to join his society. He denied that due to not changing the society, the accused-appellant Brij Lal and one Pradeep, used to take side of the accused Atwa. He also denied that there was an altercation with accused appellant-Atwa on this aspect of the society and for which he had threatened him to teach the lesson. The house of Mohan Manjhi and Budhan Manjhi are near to his house and two persons reside in family of Budhan whereas there are four children in the family of Mohan. He further stated that he is aware of Govind Manjhi but not aware with one Dasai, who is father in-law of said Govind Manjhi and the accused appellant-Brij Lal is nephew of said Govind Manjhi (i.e. P.W-3 Govind Murmu). He further stated 15 that his house consists of one room and one veranda and no one came from the village on alarm raised by him. He has denied the suggestion that due to dispute with said Barhan Mahto, he got falsely implicated the accused persons and no such dacoity has taken place in his house. 32. Thus, from the evidence of P.W-5, it is evident that he is the Informant of this case and he has supported the case of dacoity in his house and has identified all the three miscreants including both the appellants but his evidence is contradictory to evidence of P.W-3-Govind Murmu and P.W-4-Mohan Manjhi who have not named them after the occurrence when they had arrived at the residence of the informant. However, the defence has taken the plea of false implication of the accused persons on the ground of dispute between the two society of the informant and the accused persons and for not joining the society of the accused persons and this will be seen later on. 33. P.W-6 is the S.I.-Indrapal Oraon who stated during his evidence that he was posted as S.I at Gomia and the occurrence took place on 07.10.2005 and on that day he had received one O.D slip from Gomia hospital which related to injuries of the informant Jailal Manjhi. Thereafter the Officer in-charge asked him to do necessary works by going to hospital and then he along with the staff and the Officer in-charge had also accompanied with him and the fardbeyan of Jailal Manjhi was recorded by the Officer in-charge. However, he does not remember the name of Officer in-charge. Thereafter after recording the fardbeyan, they returned to the Police Station but he does not remember the FIR of this case, but instituted the case for the offence under Section 395 read with 34 IPC and the FIR was written by the Officer in-charge himself. But he does 16 not remember the name of said Officer in-charge but he says that his name was Mohan Pandey and he identifies his writing and signature on the fardbeyan marked as Exhibit-2 and FIR is marked as Exhibit-3 which is in writing of Officer in-charge, Mohan Pandey. Thereafter he had handed over the investigation of this case to him and then he had recorded the subsequent statement of the informant and had recorded the statement of other witnesses and had inspected the place of occurrence. However, he does not remember as to where the village of the informant was situated but it was a roof house and there was a veranda outside the house and there was a room inside the house and there were houses of Mohan Manjhi (i.e. P.W-4) and Govind Manjhi (i.e. P.W-3). Thereafter he tried to apprehend the miscreants and had firstly arrested the accused Pradeep in Court. But he does not remember his date of arrest and he had identified the accused Pradeep in the Court. Thereafter on the confessional statement of accused Pradeep he had arrested the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873/2008] and the appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008] and he had identified both the appellants in Court. Thereafter he got conducted TIP of the accused Brij Lal and the informant had identified the appellant-Brij Lal as a „Dacoit‟. However, no looted article of dacoity was recovered. Thereafter he obtained the medical report of the informant and after completing investigation he, on the direction of superior officer, he had submitted charge sheet against the accused persons. 34. During cross-examination, he stated that nothing was seized from the place of occurrence. The second house was attached with the house of the Informant and there was no vacant land between both the houses. He had arrested accused 17 Brij Lal [Cr. Appeal (SJ) No.888/2008] from his house and at that time the informant was not with him and the accused was brought before the Police Station in open face. He also stated that accused Brij Lal was brought in the Court in open face i.e. without covering his face but no one had come in the Police Station to see the accused persons. However, he admitted during further cross-examination that they had not maintained any precaution that the informant may not see the accused persons before Test Identification Parade i.e. TIP. He has denied the suggestion that the accused appellant-Brijlal (Cr. Appeal (SJ) No.888/2008) was shown to the witnesses before conducting the TIP. 35. Thus, from scrutinizing the evidence of P.W-6, it is evident that he is the I.O. of this case and he has made perfunctory investigation in this case. He had not seized even the Box from which the amount of Rs.4,000/ and Silver Chain and Silver Payal were looted from the place of occurrence. It is further evident that he had not maintained the precaution before conducting T.I Parade of both the appellants i.e. appellant-Atwa Marandi [Cr. Appeal (SJ) No.873/2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008]. He had admitted this fact in para-10 during his concluding portion of evidence of his cross-examination that he had brought the appellant-Brij Lal with open face in the Court and he had not maintained any precaution before conducting TIP so that the witnesses may not see the accused before the TIP. It is further evident that he has not even taken the confessional statement of the accused appellant- Brij Lal, though he has stated that he has recorded the confessional statement of accused appellant-Brij 18 Lal. It is further evident that the evidence of the I.O contradicts the evidence of the informant-P.W-5 on various aspects. 36. It further transpires that although the informant had lodged the F.I.R on 07.10.2005 at around 8.40 a.m. in the morning but he FIR was seen by the learned ACJM on 11.10.2005 i.e. after delay of four days and there is no explanation as to why the FIR was seen by the learned ACJM on 11.10.2005 although it was sent on 07.10.2005 to the ACJM and the prosecution has failed to give any plausible explanation to such delay and thus the FIR becomes doubtful. 37. The defence has also got examined three witnesses. D.W.-1 is Ramji Lal Manjhi, who stated that he lives in the same Cheriyatand village and no such dacoity has taken place in the village and no dacoity committed in the house of the informant-Jailal Manjhi. He also stated that Mukhiya of village is called „Mahto‟ and there were only one „Mahto‟ in his village but since last seven years there were two „Mahto.‟ He knows accused appellant-Atwa Marandi. He further stated that one Ramji Lal Manjhi was his earlier Mahto but since four years the appellant-Atwa Marandi has separated and now he again recognizes Ramji Lal Manjhi as „Mahto‟ and had left the Fazo Manjhi as his „Mahto‟. He also stated that Barhan Manjhi is „Mahto‟ and who is father of Ramji Lal Manjhi whereas Tejlal Manjhi is Mama of Jailal Manjhi (i.e. the informant). He pointed out that when the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873/2008] has changed the society and accepted Fazo Manjhi as his „Mahto‟ then there were internal talk as to why he had changed the „Mahto‟ and the informant-Jailal had threatened the appellant-Atwa of dire consequences. He also knows Govind Murmu and there is good relation between Govind Manjhi 19 (i.e. P.W-3) and the Informant Jailal and both belongs to society of informant-Jailal. He also stated that he is aware that father in- law of appellant-Brijlal and Govind Manjhi (i.e.P.W-3) both are brother to each other. During cross-examination, he denied the suggestion that he has any dispute and difference with informant-Jailal. 38. Thus, D.W-1 has denied the occurrence of dacoity in the house of the informant and had stated that due to dispute of recognizing „Mahto‟ of his village there were certain differences between the appellant-Atwa Marandi (Cr. Appeal (SJ) No.873/2008) and Barhan Manjhi, who is father in-law of the informant-Jailal. 39. D.W.-2 is Kullu Manjhi, who has stated during his evidence that he is aware of both appellant-Atwa Marandi and the informant-Jailal and both belong to his village and no dacoity had taken place in the village. He further stated that there are two „Mahto‟, (i.e. Barhan Majhi and Fazo Manjhi) in his village and „Mahto‟ becomes Mukhiya. Barhan Manjhi is „Mahto‟ of appellant-Atwa Marandi (Cr. Appeal (SJ) No.873/2008) for 6-7 years whereas Fazo Manjhi is „Mahto‟ of informant-Jailal. Earlier Fazo Manjhi was Mahto of the accused appellant-Atwa Marandi. However, when appellant-Atwa Marandi has changed Barhan Manjhi as his „Mahto‟ then Jailal had threatened him. He is not aware of any Brijlal but Govind Manjhi is not in relation of the informant-Jailal. He has denied the suggestion of giving false evidence. 40. Thus, from scrutinizing the evidence of D.W-2, it would appear that there is dispute between the appellant-Atwa Marandi (Cr. Appeal (SJ) No.873/2008) and informant-Jailal, took place due to change of „Mahto‟. However, the learned Court below 20 has not considered this aspect of the matter and the evidence of the defence witnesses. 41. D.W-3 is Khirudhar Sao, who has stated during his evidence that he is not aware as to ever any dacoity was committed in his village or not. The D.W-3 was discharged without cross-examination and hence evidence of D.W-3 is not being considered. 42. It transpires that the learned Court below has brushed aside the evidence of defence witness although it is well settled that evidence of defence witness had to be seen at par with the prosecution witness. 43. It has been held by Hon‟ble Supreme Court in the case of State of U.P vs. Babu Ram reported in (2000) 4 SCC 515 at para-21, 22 and 23 as follows:- “Para-21:- Shri N.P. Midha, learned counsel for the respondent submitted written submissions over and above the oral arguments addressed by him. One of the contentions adverted to by the learned counsel is pertaining to the evidence of the defence witness (DW 1 Moharam Ali). Counsel contended that if the evidence of DW 1 Moharam Ali can be believed it is sufficient to shake the basic structure of the prosecution evidence. Shri N.P. Midha invited our attention to the following observations contained in the decision of this Court in Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] : (SCC p. 173, para 19) “Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses.” Para-22:- We may quote the succeeding sentence also from the said decision for the sake of completion of the observations of their Lordships on that score. It is this: “Quite often they tell lies but so do the prosecution witnesses.” Para-23:- Depositions of witnesses, whether they are examined on the prosecution side or defence side or as 21 court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses. 44. It has been held by Hon‟ble Supreme Court in the case of Balwinder Singh (Binda) vs. Narcotics Control Bureau reported in (2023) OnLine SC 1213 at para-39 as follows:- “Para-39:- Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v. State of Uttar Pradesh [(1981) 2 SCC 166], State of Haryana v. Ram Singh [(2002) 2 SCC 426], Adambhai Sulemanbhai Ajmeri v. State of Gujarat [2014)7 SCC 716] and Jumi v. State of Haryana [(2014) 11 SCC 355 to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and different yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, but cannot take the case of the appellant - Satnam Singh any further inasmuch as the trial Court has carefully analysed the testimonies of the defence witnesses before drawing an adverse presumption against the accused. The High Court has also taken pains to go through the entire testimonies of the defence witnesses and only thereafter endorsed the view taken by the trial Court. There has been no arbitrariness or undue favour shown to the prosecution witnesses from the appellant-Satnam Singh to claim any bias. 45. It is further evident that the chart of TI Parade has not been marked as the exhibits on behalf of the prosecution and even the 22 learned Judicial Magistrate who conducted TIP, has neither been made a charge sheet witness, nor has been examined before the Court below. It is not clear as to who had conducted T.I. Parade. 46. It transpires from the record that the co-accused Pradeep Manjhi was arrested from his house by the I.O of this case. 47. It is further evident that both the appellant-Atwa Marandi [Cr. Appeal (SJ) No.873/2008] and appellant-Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008] and informant were known to each other and as such it is improbable that known person will conduct dacoity in the house of the informant who was known to him without covering their faces in open condition. 48. It transpires from the record that the appellant-Brijlal has filed petition on 22.12.2005 that no TIP has been held in jail since 19.10.2005. Thus, holding TIP after two months for verification of the accused is a lacuna on the part of the prosecution and has serious prejudice to the appellant Brij Lal Manjhi [Cr. Appeal (SJ) No.888/2008]. 49. Delay in TI Parade after three (03) weeks is found fatal by the Hon‟ble Supreme Court. 50. It has been held in the case of Md. Sajjad alias Raju alias Salim vs. State of West Bengal reported in (2017) 11 SCC 150 at para-16 and 17 as follows:- “Para-16:- In the case in hand, apart from the fact that there was delay in holding the test identification parade, one striking feature is that none of the prosecution witnesses concerned had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor had any special circumstances occurred which would invite their attention so as to register the features or special attributes of the accused concerned. Their chance 23