=================================================== LOCHAN MANDAL SON OF BHAROSI MANDAL, RESIDENT OF VILLAGE- JARAWADIH, P.S.- KAWAKOLE, DISTRICT v. THE STATE OF BIHAR
Case Details
Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.35 of 1990 =================================================== LOCHAN MANDAL SON OF BHAROSI MANDAL, RESIDENT OF VILLAGE- JARAWADIH, P.S.- KAWAKOLE, DISTRICT- NAWADAH…………………………………..... .... APPELLANT/S Versus THE STATE OF BIHAR………………….... .... RESPONDENT/S with Criminal Appeal (DB) No. 36 of 1990 =================================================== 1. MISHRI YADAV SON OF DASO YADAV, RESIDENT OF VILLAGE- JORABARDIH, P.S.- KAWAKOLE, DISTRICT- NAWADAH 2. YADU MANDAL SON OF MISHREE MANDAL, RESIDENT OF VILLAGE- BHALUANA, P.S.- CHANDRADIP, DISTRICT- MUNGER ……………………………...... .... APPELLANT/S Versus THE STATE OF BIHAR………………….... .... RESPONDENT/S =================================================== AGAINST THE JUDGMNT OF CONVICTION AND ORDER OF SENTENCE DATED 30TH NOVEMBER, 1989 PASSED BY SRI K. M. TOPPO, IST ADDITIONAL SESSIONS JUDGE, NAWADAH IN SESSIONS TRIAL NO. 4 OF 1989. =================================================== Appearance : For the Appellant/s : Mr. Tej Narayan Singh, Advocate Mr. Satyedra Prasd Singh, Adv. For the Respondent/s : Mr. Ajay Mishra, APP =================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 31-01-2013 Appellants namely Mishri Yadav, Yadu Mandal and Lochan Mandal who have been found guilty for an offence punishable under sections 302/34 as well as under section Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 2 364/34 of the Indian Penal Code vide judgment dated 30.11.1989 passed by the learned Ist Additional Sessions Judge, Nawadah in Sessions Trial No. 4 of 1989 and they each have been sentenced to undergo rigorous imprisonment for life under sections 302/34 of the Indian Penal Code whereas no separate sentence was passed for the offence punishable under sections 364/34 of the Indian Penal Code, have filed these appeals.
Legal Reasoning
2. PW 5 Bishun Mandal recorded first information report (Ext. 5) on 17.11.1988 at about 1.00 AM at Kawakole Police Station having accompanied by his co-villager Baleshwar Mandal (not examined), Mahendra Mandal (not examined), Moti Mandal (PW 4) as well as having dead body of his son deceased Ramresh Mandal and alleged that on 16.11.1988 at about 3.00 PM his son Ramresh Mandal left his place disclosing that he is
Legal Reasoning
going to Shekho Dewra for consuming liquor along with Mishri Yadav. When he did not return in the evening, PW 5 went in search towards Shekho Dewra and during said course he heard cry of his son coming towards Sheko Dewra Bhatti over which he ran and reached near Mokanwa Khanda bridge where he found his son lying in a drain near the bridge and further found Mishri Yadav, Lochan Mandal, Yadu Mandal assaulting his son with fist and slaps as well also pressing his neck by means of towel. On hearing cry, other persons also arrived seeing whom Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 3 the accused persons fled away. When he reached at the place of his son and lifted him, he found him dead. 3. On the basis of aforesaid First Information Report Kawakole P.S. Case No. 96 of 1988 was registered whereupon investigation commenced and after concluding the same, chargesheet was submitted in pursuance of which after taking cognizance, the appellants were put on trial wherefrom they faced the judgment of conviction and sentence which happens to be the subject matter of instant appeal. 4. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under section 313 Cr.P.C. is of complete denial of occurrence as well as of false implication on mere suspicion. However, neither any defence witness nor any exhibit has been brought on behalf of the defence. 5. While assailing the judgment of conviction and sentence it has been argued on behalf of the appellants that the learned trial court had acted in mechanical manner without appreciating the evidence in its right perspective. It has further been submitted that after going through the evidence of material witnesses, it is evident that none of the witnesses happens to be an eye witness to the occurrence rather they thrust themselves to become an eye witness and that is the reason behind Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 4 presence of material contradiction in their evidences and on account thereof these witnesses have become untrustworthy, uncreditworthy and unreliable. It has further been submitted that from the evidence of the Investigating Officer as well as PW 4, the witness of inquest as well as of seizure, it is evident that persisting inconsistency amongst them has virtually shacked the whole prosecution case with regard to place of occurrence as well as with regard to veracity of the evidence of the PWs. In likewise manner, the evidence of remaining material witnesses happens to be, so submitted that from the evidence so adduced on behalf of the prosecution, it is crystal clear that neither the place of occurrence nor the manner of occurrence as substantiated could be found to be witnessed by these witnesses. Therefore the judgment impugned is full of abrupt conclusion. 6. On the other hand it has been urged by the learned APP that the evidence of witnesses should not be taken into account in piecemeal manner, rather the evidence has to be considered in its totality and following the aforesaid principle when the evidence of each and every witness is taken into consideration, it is patently clear that the prosecution has succeeded in proving its case. It has further been submitted that the tune of those paragraphs of evidences of the witnesses which Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 5 has been categorized as material contradiction virtually happens to be minor contradiction without affecting upon the prospect of prosecution case. It has further been submitted that from the evidence of doctor, the murder of deceased has found to be fully proved. So far as complicity of appellants are concerned, that has properly been shown by the witnesses. Hence, the judgment of conviction does not require any sort of interference. 7. In order to substantiate its case, the prosecution had examined altogether 7 witnesses out of whom PW 1 is Muneshwar Mandal @ Bhuneshwar Mandal, PW 2 is Uday Mandal, PW 3 is Jiyalal Mandal, PW 4 is Moti Lal Mandal, PW 5 is Bishun Mandal the informant, PW 6 is Dr. Anil Kumar and PW 7 is Biendra Prasad Yadav the Investigating Officer. Side by side also exhibited signature of the witnesses over different documents (Ext. 1 series), Seizure list (Ext. 2), inquest report (Ext. 3), Post Mortem Report (Ext. 4) and First Information Report (Ext. 5). 8. Before coming to the occular evidence, first of all we would like to deal with the medical evidence. PW 6 had conducted post mortem on the dead body of Ramresh Mandal on 18.12.2008 at 9.30 AM and found the following ante mortem injuries:- “(i) horizontal 10” x 1 ½” depressed ligature mark Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 6 in front of neck extending from exteriomastoid muscle of left side to exteriomastoid muscle of right side- lying below thyroid cartilage (ii) Swelling 2” x 1’ over left parietal and frontal region of scalp (iii) Swelling 2” x 1” over occipital region conjunctivae congested. On dissection there was blood clot behind ligature marks in subcutamous tissue and muscle. Cornna of the hyoid bone fractured. Larynx and trachea congested and contained froathy muious. Cranial cavity contained blood clots in left parietal, frontal and occipital region. Brain was congested. lungs were congested showing haemmorhagic paches and exuding dark fluid blood on section.” Cause of death happens to be Asphyxia due to above injuries caused by hard and blunt substance. 9. In the opinion of the doctor, the time elapsed since death between 36-48 hours. That means to say that the time of death happens to be in between 9.30 AM to 9.30 PM of 16.12.1988 and that covers the date and time of occurrence as narrated in the First Information Report. From cross- examination, it is evident that the defence has failed to elicit anything from the mouth of this prosecution witness which Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 7 could go adverse to the prosecution case. 10. Therefore, from the evidence of doctor, it has become crystal clear that the deceased had died on account of ante mortem injury found over his person. 11. Now, coming to the occular evidence, PWs 1, 2 3 and 5 came forward and have tried to depose to the effect that these appellants are responsible for causing injury over the person of deceased resulting his death. 12. PW 5, the informant, deviating from his earlier statement wherein he had shown departure of the deceased on his own for consuming liquor in the company of Mishri Yadav whose presence was not at all shown, stated that Mishri Yadav, Lochan Mandal and Yadu Mandal took him away and then narrated the event.. In cross-examination of the paragraph 6 he had denied the suggestion that he had not made his earlier statement to the fact that his son had left on his own for Sheko Dewara to consume liquor along with Mishri Yadav. Apart from PW 5 there happens to be no other witness on this score. This part has purposely been introduced during course of trial, so that one could pin point these appellants before the occurrence who took away deceased and got him murdered. This part, in the aforesaid background, appears to be shaky one introduced with a purpose. Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 8 13. As per the first information report, it is evident that the informant PW 5 had gone to Police Station along with the persons named therein carrying the dead body of his son Ramresh Mandal but again sanctity of the first information report become suspicious on account of disclosure made in paragraph 3 of the cross-examination of the informant PW 5, wherein he has disclosed that he had met with Sarpanch Saheb near the dead body. Sarpanch Saheb had advised him to institute a case. Sarpanch Saheb had gone to Police Station and returned back accompanying Darogajee. He had narrated the incidence at the bridge itself before the Darogajee in presence of Sarpanch Saheb. At that very time, mob of thousand persons were present. He does not remember the exact time when Darogajee had come but subsequently disclosed that it was 8.00 or 10.00 PM. Presence of aforesaid disclosure clearly suggests that there was recording of fard-beyan at an earliest than the present one which has purposely been withheld by the prosecution with ulterior motive. Apart from the informant happens to be firm on this score, presence of Darogajee before the present FIR (Ext. 5) at the spot has further been found supported with paragraph 4 of the cross-examination wherein he had disclosed that there was some water as well as mud at the place of occurrence. Darogajee got the dead body extracted Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 9 therefrom. It was a moonlit night and then he carried away the dead body on a cot which was brought by his brother Baleshwar. Chappal and towel was there which was also taken away by the Police. When this evidence is taken together with the evidence of PW 4, Sarpanch Saheb, version of prosecution became more doubtful with regard to the status of the witnesses to be an eye witness to the occurrence. Although this prosecution witness has not been produced by the prosecution as an eye witness to the occurrence, rather he happens to be the witness of FIR attesting witness, along with witness of inquest. From paragraph 3 of his examination-in-chief, like the evidence of PW 5, paragraph 4, he had categorically stated that inquest was prepared at the place of occurrence in his presence as well as in the presence of Suresh Kumar Singh over which they have put their signature. He had also disclosed supporting the disclosures made by PW 3 in paragraph 4 that the Investigating Officer had seized one pair of Hawai Chappal and one printed towel from the place of occurrence in his presence as well as in presence of Yadu Narayn Prasad. However, very cunningly he had narrated the event of recording of FIR in his presence at the instance of PW 5 without disclosing the place where it was recorded and that certainly happens to be on account of discrepancy visualizing from the evidence of PW 5 who, in cross-examination Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 10 at paragraph 5, had admitted that he was the person who had informed the Police. The Police party came thereupon at the place of occurrence and then followed the relevant process. In paragraph 6, he has further disclosed that on 17.11.1988 at about 7.30 AM, Darogajee had seized one pair of hawai chappal as well as one towel, for which seizure list was prepared at the police station itself. 14. The aforesaid theme is found much more confused when the evidence of PW 7 Bijendra Prasad Yadav I. O. is gone through. He had virtually scrapped the evidence of PW 5 as well as PW 4 with regard to his presence at the place of occurrence as well as manner of recording of the First Information Report. According to his deposition, the informant PW 5 had come to Police Station along with dead body of his son Ramresh Mandal at about 1.00 AM on 17.11.21988. He recorded his statement and then, thereafter, inquest was prepared at the Police Station itself. Thereafter, he proceeded to the place of occurrence at about 3.00 AM and then had narrated the place of occurrence. He had not disclosed about presence of towel around the neck of the deceased rather from paragraph 4 of his examination-in-chief, the same was found at the place of occurrence. In paragraph 6 of his cross-examination, he has denied the claim of PW 5 as well as PW 4 that PW 4 had gone to Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 11 inform him whereupon he had come to place of occurrence. He had also controverted the evidence of PWs 4 and 5 to the effect that inquest was prepared at the place of occurrence as well as the dead body was carried by him over a cot. He had further disclosed in paragraph 7 of his cross-examination that he had found one towel around the neck of the dead body during the course of inspection of the dead body. From the seizure list (Ext. 2), it is evident that PW 5 or PW 4 is a liar and there is some sort of slackness or perfunctory investigation at the hands of this PW 7 as in paragraph nos. 9, 11 and 12 he admitted that he had wrongly mentioned in the seizure list with regard to recovery of Gamcha from the place of occurrence and in likewise, manner, there happens to be presence of towel around the neck of the deceased. 15. Now, coming to the status of remaining three witnesses that means to say that PWs 1, 2 and 3 less said is better. PW 3 although tried his best to pose himself as an eye witness to the occurrence but from paragraph 4 of his cross- examination, it appears that his status at the earlier occasion was that of hear-say witness as supported by PW 7 (paragraph 10 of his cross-examination). With regard to presence of PWs 1 and 2 they are inconsistent to each other and make their presence doubtful as an eye witness to the occurrence. PW 1 in Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 12 his cross-examination at paragraph 2 had narrated that he had gone to Sheko Dewra at 3.00 PM from his village along with Uday to the place of Keshar Pandit. They remained there for about one and half hours. They returned back therefrom at about 5.30 PM. When the evidence of PW 2 Uday Mandal has been gone through, from paragraph 2 of his cross-examination, it is evidence that he along with PW 1 had stayed in a field to keep watch over harvested crop. PW 1 Muneshwar had gone to place at about 3.00 pm while he had joined him at 3.30 PM and they both remained there up till 6.30 PM. On disclosure made by PW 1 that now night has fallen, both left. PW 2 failed to give location of the field wherein they have stayed and inconsistency on that very score makes the statements of PWs 1 and 2 suspicious with regard to their status as an eye witness to the occurrence during course of returning from Sheko Dewra. 16. Apart from having the aforesaid deficiencies persisting in the evidences of prosecution witnesses, we have tried our best to reconcile the evidence of each and every prosecution witnesses in its totality in isolation of others to appreciate its reliability, even then, we have not been able to identify any of the prosecution witnesses to be credible on the factum of eye witness to the occurrence. 17. Giving our anxious consideration to the facts Patna High Court CR. APP (DB) No.35 of 1990 dt.31-01-2013 13 and circumstances of the case, we are of the view that the prosecution has miserably failed to substantiate its case. Consequent thereupon, judgment of conviction and order of sentence as recorded by the trial court is set aside. Accordingly, these appeals are allowed. The appellants are on bail, they are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) Patna High Court, Patna Dated 31st January, 2013 Avin/N.A.F.R.