CRIMINAL APPEAL No.261 OF 1993(SJ) *** Against the judgment and order dated 2nd September, 1993, passed by Sri S. S. Sharma, 8th Additional Sessions Judge, Purnea, in connection with Sessions Trial No.258 of 1983 *** 1. Ganauri Mandal, son of Late Mohan Mandal, 2. Babu Lal Marandi son of Sri Bauku Marandi, (Dead) 3. Budhu Mandal son of Gujai Mandal (Dead) Sl. No. 1 to 3 resident of village- Hansaili Kunti, Police Station- Krityanand Nagar, District- Purnea 4. Uttam Lal Mandal, son of Late Uchit Lal Mandal 5. Shyama Marandi son of Bauku Marandi Sl. No. 4 & 5 Resident of village- Hansaili Kunti, Police Sation- Kritya Nand Nagar, District –Purnea 6. Bauku Marandi @ Santhal son of Monu Manjhi, (Dead) 7. Ram Bilas Mahto son of Late Gultan Mahto (Dead) & 8. Ram Sewak Mahto, son of Gultan Mahto Sl. No. 6 to 8 resident of village- Debi Nagar, Police Station-Kritya Nand Nagar, District-Purnea … Appellants Versus STATE OF BIHAR ...Respondents *** For the appellants : Mr. Ajay Kumar Thakur, Advocate For the State : Mr. S. N. Prasad, A.P.P. *** P R E S E N T HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The appellants have been convicted for the offence under sections 436/149, 324/149, 379/149 and 148 of the Indian Penal Code and sentenced them to rigorous imprisonment for five years, two years, two years and one year respectively by the 8th Additional Sessions Judge, Purnea, in Sessions Trial No. 258 of 1983. 2. As many as 26 accused were put on trial, out of whom, apart from the present eight appellants the rest were acquitted of the charges. Out of the present eight appellants, appellant no.2 Babu Lal Marandi, appellant no.3 Budhu Mandal, appellant no.6 Bauku Marandi @ Santhal and appellant no.7 Ram - 2 - Bilash Mahto died during the pendency of this appeal and appeal in their regard abated by order dated 26.2.2009. 3. The prosecution case is that on 27.2.1979 at 3.00 PM about 100-150 Santhals variously armed came in a mob and set fire to the houses of Bichala Tola and took away cattle with them. In the mob, 14 persons were identified by the informant and others, who were named as accused in the first information report. The occurrence is said to have taken place on account of some dispute between Ram Sewak Mahto and Bishundeo Mandal. In course of investigation, it transpired that one injured had succumbed to the injuries and, therefore, chargesheet was submitted under section 302/149 of the Indian Penal Code against the present appellants as well as those put on trial. Charge was also framed under section 302/149 of the Indian Penal Code against all the accused persons for having caused death of Md. Issa but the accused persons were acquitted of the said charge in absence of any evidence that the death of Md. Issa had occurred in the present transaction. 4. The prosecution in all examined 20 witnesses out of whom, P.W. 1 Mobarak Hussain, P.W.2 Sheikh Belal, P.W.3 Muzaffar Ali, P.W.4 Sirajuddin, P.W.5 Riyazuddin, P.W.6 Maqbool Hussain, P.W.7 Abdul Rahman, P.W.9 Abdul Gaffur, P.W.10 Sheikh Zainul, P.W.11 Sikandar Ali, P.W. 12 Mozibur Rahman, P.W. 13 Nimani Hussain, P.W 14 Mansoor, P.W.15 Niyazuddin, P.W. 16 Ali Hussain and, P.W. 17 Amjad Ali deposed as eye witnesses to the alleged occurrence. P.W.19 is Dr. Kishna Pd. Modi, who held post mortem of Md. Issa, whereas, P.W. 20 Dr. Gaya Prasad Diwakar examined the injured. P.W. 18 Kamaldeo Prasad Yadav is a formal witness and P.W.8 Md. Rafique has been declared hostile by the prosecution since he did not support the case of the prosecution. - 3 - 5. On going through the evidence of the eye witnesses specially, P.W. 9, the informant of the case, it appears that the entire prosecution has been fully reiterated and corroborated on material particulars by all the witnesses. P.W.9 has stated in his evidence that on the date of occurrence at 3 PM when he was loading his paddy on the bullock cart he saw a mob of Santhalis at the door of BabuLal Marandi, who stated beating the drums. On the beating of the drums, others also assembled and they started shooting arrows hitting several persons. The mob thereafter set fire to the houses of the area and fled away with the cattle, food grains and cash belonging to several persons of one community. All the prosecution witnesses, who deposed as eye witnesses, have consistently stated about this occurrence and even though there was disparity in identification of the accused persons and the specific role by each of them is totally immaterial in the facts of this case. P.W.1 is said to have identified two of the appellants, namely, Siyaram Mushar and Babu Lal Santhal, whereas P.W.2 identified Bouku Santhal, Babu Lal and Ganouri Mandal, P.W.3, who was injured in the transaction, identified Babu Lal, Shyama Santhal, Rama Santhal and Siya Ram Mushar, whereas, P.W.4, also an injured, identified Ram Sewak Mahto. P.W.5 an injured witness identified Majhia Manjhi, Ramrai Manjhi and Saligram Manjhi. P.W.6 an injured witness identified Rama, Shyama, Babu Lal and Bouku. P.W.7 also identified the very same four appellants, whereas, P.W.9, the informant has identified the appellant Rambilash, Ramsewak, Ganouri, Uttam Lal Mandal and Budhu Mandal. P.W.12 has identified appellant and Ram Sewak in the mob and having indulged in the burning of the huts. P.W.13 also identified Babulal. P.W.14 identified appellant Babulal and Shyama as member of the mob and P.W.15 identified Shyama and Siyaram participating in the occurrence. P.W. 17 identified Babulal as member of the mob. - 4 - 6. From the aforementioned discussion about the identification, it is apparent that the appellants were consistently identified by all the witnesses and there was no reason for any false implication. No doubt, the roles assigned to each of them may be not consistent with each other but it can be explained that if large number of 100-150 persons were participating in an occurrence, it would be very difficult to pin point exactly as to which of the accused was committing what particular act. 7. Under the circumstances, complicity of the appellants in the present occurrence cannot be ruled out and the prosecution has discharged its duty in proving its case beyond all reasonable doubt against the present appellants. However, it appears that the occurrence is of the year 1979 i.e. almost 30 years from now and the appellants are on bail and if they are sent behind the bar now after the lapse of 30 years, it will result in untold misery upon them and their family members. 8. Considering the same, I am of the view that it will be sufficient if the conviction of the appellants is maintained but the sentence is altered to one which is already undergone by them during trial. 9. In the result, the appeal is dismissed with modification in the sentence as stated above. (Anjana Prakash, J.) Patna HighCourt Patna. Dated the 29th October, 2009 NAFR / JA/-