NARENDRA NATH TIWARI,J. - (1.) THE appellant along with one Moharlal Mirdha were tried for the charge under Section 395 of the Indian Penal Code (for short IPC) whereas, Moharlal Mirdha was acquitted, the appellant has been convicted under Section 395 IPC and sentenced to undergo rigorous imprisonment for ten years.
(2.) THE fact which led to this appeal in brief is that on 19/20.2.2001 at about 11:30 PM. Pitamber Mandal, the younger son of the informant, Jiyadhar Mandal, who was sleeping in the Varandah called him and requested to open the door saying that the miscreants are threatening to kill him and his wife. The informant at first did not open the door, he peeped through the window and saw that 5/6 miscreants were catching hold of his son and were assaulting him. The informant' raised alarm but no -body turned up. The miscreants then brought kerosene oil and poured on his son, who cried that the miscreants were going to set fire on him if the door is not opened. When the informant opened the door, one miscreant gave fist blow over his face and asked to disclose whereabouts of the cash. They, thereafter, entered into the room of Hari Mohan Mandal, the father of the informant and took away Rs. 10,000/ - from his Almirah. They also took away H.M.T. wrist watch and utensils from his house. When the miscreants were leaving the house after committing dacoity, the informant followed them and successfully pushed one of the miscreants into the well near his house. Subsequently, the miscreant was taken out of the well who disclosed his name as Diwakar Prasad Singh of village Gangara, P.S. Pathargawa, District Godda. He also disclosed the name of other miscreants. On the basis of the fardbeyan of the informant, case was registered under Section 395 IPC against the appellant, Diwakar Prasad Singh and seven others and was investigated into. After investigation, the police submitted charge -sheet under Section 395 IPC against the accused appellant Diwakar Prasad Singh and one Moharlal Mirdha while investigation continued against other accused persons. Both the accused persons were questioned under Section 313 Cr.P.C. They denied the charge and faced the trial.
(3.) THE prosecution altogether examined ten witnesses. One witness was examined on behalf of the defence. Out of the prosecution witnesses P.Ws. 1, 2, 3, 6, 7 and 8 deposed that the appellant was taken out of the well and was trying to flee away. P.W. 1 is the father of the informant. He stated in paragraph -3 of his deposition that the appellant was taken out of the well in the next morning. In paragraph -6 of his deposition, he stated that he had handed over Rs. 10,000/ - to a dacoit but he is unable to identify him. In paragraph -14 he stated that when the appellant was caught hold, no looted articles were recovered from his possession. P.W. 2 is the uncle of the informant. He has stated in paragraph -1 of his deposition that on the day of occurrence, when he reached to the informant's house, he saw about 500 persons already assembled. He saw -that one dacoit came out of the well and was about to run away but he along with others caught hold of him. He disclosed his name as Diwakar Prasad Singh (appellant). P.W. 2 is one of the witnesses of the FIR lodged by the informant, Jiyadhar Mandal (P.W. 4). He has proved his signature on the FIR (Ext. 1). P.W. 3, Dinesh Mandal is the nephew of the informant; he has stated in paragraph -1 of his deposition that he heard Halla and rushed to the place of occurrence. He saw that one dacoit came out of the well and was about to run away but the people caught hold of him. He disclosed his name as Diwakar Prasad Singh. P.W. 4 is the informant. He has stated in paragraph -1 of his deposition that when the miscreants were running away after committing dacoity in his house, he chased them and pushed one of the dacoits into the well. The miscreant gave out his name as Diwakar Prasad Singh (appellant) and tried to run away after coming out of the well but was caught hold by the people assembled there, The informant has also stated in paragraph -7 of his deposition that he could not identify any dacoit who committed dacoity in the informant's house. P.W, 5 is the son of the informant. He has not stated anything about pushing the appellant into the well or his coming out of the well. P.W. 6, Vishnu Marik has stated in paragraph -1 of his deposition that the occurrence took place at about 12:00 O'clock in the mid night. After hearing Halla, he went to the place of occurrence and saw the persons catching hold of the appellant who was said to have fallen into the well. P.W. 7 also rushed to the place of occurrence on hearing Halla and saw that the appellant was being caught hold by some persons. P.W. 8 also repeated the same story of detaining the appellant by some persons. P.W. 9 is the Investigating Officer. He has staled that the villagers caught hold of one dacoit, named, Diwakar Prasad Singh. P.W. 10 proved the FIR (Ext. 3). ;