======================================================== PASUPATI MANDAL SON OF DHANESHWAR MANDAL, RESIDENT OF PATUWR, P.S.- SAHEBGANJ, DISTRICT- SAHEBGANJ v. THE STATE OF BIHAR
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.216 of 1990 ======================================================== Against the judgment of conviction and order of sentence dated 11th April, 1990 passed by Sri Nawal Kishore Prasad, Ist Additional Sessions Judge, Bhagalpur in Sessions Case No. 380 of 1987 / Tr. No. 186 of 1987. ======================================================== PASUPATI MANDAL SON OF DHANESHWAR MANDAL, RESIDENT OF PATUWR, P.S.- SAHEBGANJ, DISTRICT- SAHEBGANJ. ………………………………………………………………………..Appellant/s Versus THE STATE OF BIHAR …………………………...... .... Respondent/s ======================================================== Appearance : For the Appellant/s : Mr. T. N. Maitin, Sr. Advocate Mr. Rajeev Kumar Sinha, Advocate 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: 18-03-2013 Initially two appeals bearing Cr. Appeal No. 191 of 1990 (DB) and Cr. Appeal No. 216 of 1990 (DB) were filed against the judgment dated 11.4.1990 passed by the learned Ist Additional Sessions Judge, Bhagalpur in Sessions Trial No. 380 of 1987 / 186 of 1987 convicting the appellants that means to say the appellant Rajendra Singh @ Badri Mandal of Cr. Appeal No. 191 of 1990 (DB) as well as Pasupati Mandal appellant of Cr. Appeal No. 216 of 1990 (DB) for an offence punishable under sections 302/34 of the Indian Penal Code. They each were directed to undergo rigorous imprisonment for life. However, during pendency of the these two appeals for hearing, on account of death of sole appellant Rajendra Singh @ Badri Mandal, Cr. Appeal No. 191 of 1990 (DB) abated Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 2 about which this Court took cognizance vide order dated 29.1.2013 on account of which now Cr. Appeal No. 216 of 1990 (DB) survives. 2. Shorn of unnecessary details, the case of the prosecution as comes out from the fard-beyan (Ext. 3) of Dilip Kumar Mandal (PW 8) recorded on 15.3.1985 at about 1.30 PM near the house of Doman Sah at village Sermari before the Police Officials of Pirpainti alleging inter alia that on same day at about 9.15 AM his brother Tarni Prasad Mandal aged about 15 years proceeded to Dadauli High School for registration along with Kanahiya Prasad Mandal and Naresh Mandal, his co-villager. Just after an interval of 15-20 minutes one Laxmi Prasad Mandal (not examined) came to his house and informed him that his brother Tarni Prasad Mandal was shot at and he is lying by the side of Salempur Ghat in an injured condition. On this information, he along with his younger brother Ashok Kumar Mandal (not examined) and maternal uncle Anant Lal Mandal (not examined) rushed to Salempur Ghat and found his brother Tarni Prasad Mandal lying on earth in injured condition. He found blood coming out from his head as well as his hand. On query, he (Tarni) disclosed that Pasupati Mandal and Badri Mandal son of Dhaneshwar Mandal resident of Patuwr, P.S.-
Legal Reasoning
Sahebganj, district- Sahebganj have shot at. Srikant Mandal along with other villagers have also disclosed that they had chased Pasupati and Badri to some distance but they managed to escape. Thereafter, he with the help of his brother, maternal uncle and others took his injured brother Tarni Prasad Mandal to Pirpainti Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 3 Hospital where first aid was given and then, thereafter, while he was proceeding towards Bhagalpur as per instruction of the doctor, his brother Tarni succumbed. He had further disclosed that on account of long standing animosity relating to land with Pasupati and Badri, they had caused murder. 3. On the basis of aforesaid fard-beyan, Pirpainti P.S. Case No. 32 of 1985 was registered whereupon investigation commenced and concluded by way of submission of chargesheet and on account thereof appellants have faced trial and met with ultimate consequence resulting filing 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 innocence as well as complete denial of the occurrence. It has also been pleaded that on account of land dispute appellants have been falsely implicated. To support certain documents have been exhibited in their defence. 5. While assailing the judgment of conviction and sentence recorded by the learned Trial Court it has been submitted that the learned trial court failed to appreciate the ocular as well as documentary evidence in its right perspective. To support the same, it has been argued that informant himself is not an eye witness to the occurrence so his status happens to be that of hear say witness. In likewise manner, the other two witnesses Kanhaiya Prasad Mandal (PW 3) and Naresh Prasad Mandal (PW 6) whose presence along with deceased since before occurrence had been admitted by Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 4 the informant himself and on account thereof, during course of their examination have claimed to be an eye witness to the occurrence have completely ruled out complicity of these two appellants (Rajednra @ Badri Mandal since deceased). In likewise manner it has also been submitted that PW 1 Sakaldeep Mandal who happens to be younger brother of PW 8, came at Pirpainti and therefore, his status also happens to be that of hearsay witness. As per fard- beyan, Srikant Mandal PW 2 has got no appearance. In likewise manner, the evidence of identification of appellant through PW 4 Chedi Ram and PW 6 Doma Ram is fit to be outrightly rejected in the background of the fact that not only they have claimed identification in the court for the first time rather their evidence did not inspire confidence on that very score. 6. Hence, in the aforesaid background it has been submitted that after taking into account the evidence on record, it is evident that neither any of the witness has been able to identify the appellant as an assailant of the deceased nor from the evidence, theme of oral dying declaration is found substantiated. The evidence of informant PW 8 on this score also happens to be improbable. When the aforesaid deficiencies are taken together with the evidence of PW 7 Dr. Kailash Jha who had conducted post mortem, it is crystal clear that manner of occurrence is found to be completely demolished and in likewise manner the factum of oral dying declaration. It has further been submitted that objective finding of the Investigating Officer is not going to improve the case Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 5 of the prosecution in any way. As such, the finding recorded by the learned trial court is fit to be set aside. 7. On the other hand learned Additional P.P. while supporting the finding recorded by the learned trial court submitted that the evidences whatsoever have been adduced on behalf of the prosecution are sufficient enough to justify the finding given by the learned trial court. Had there been any attempt on behalf of the prosecution to falsely implicate the appellant, their presence would have been right from the beginning when information with regard to assault over person of deceased by Laxmi Prasad Mandal was made to informant PW 8 Dilip Kumar Mandal. The informant did not name the appellant till it was disclosed by the deceased on query at the spot where he was lying in an injured condition. The aforesaid theme finds support from the evidence of other independent witnesses who though to some extent lean in favour of appellant. It has further been submitted that identification for the first time in the court should not be treated as inadmissible piece of evidence because of the fact that there happens to be no requirement of holding of TIP as per Evidence Act. The process of TIP is only to facilitate the identification of the accused for just investigation and not that in each and every case it should be mandated compulsory that too, when complicity of the accused found to be conclusively pointed out. . 8. It has also been submitted that the ocular evidence is fully supported with medical evidence which also Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 6 additionally probablised the factum of oral dying declaration. In likewise manner, it has also been submitted that the objective finding of the Investigating Officer found to be additional ground on this score. 9. In order to substantiate its case, the prosecution had examined altogether nine witnesses, out of whom PW 1 is Sakaldip Mandal, PW 2 is Shrikant Mandal, PW 3 is Kanhaiya Lal Mandal, PW 4 is Chedi Ram, PW 5 is Doman Ram, PW 6 is Naresh Prasad Mandal, PW 7 is Dr. Kailash Jha, PW 8 is Dilip Kumar Mandal and PW 9 is Md. Muslim. Side by side also exhibited Ext. 1- Post mortem report, Ext.2- signature of informant over fard-beyan, PW 3- fard-beyan, Ext.4- inquest report, PW 5- formal FIR, Ext.6- chargesheet with regard to Sahebganj P.S. Case No. 26 of 1984, Ext.7- order dated 20.3.1984 passed in GR No. 51 of 1984, Ext. 8- Chargesheet relating to Sahebganj P.S. Case No. 88 of 1984, Ext.9- order dated 20.3.1984 in passed in GR No. 190 of 1984, Ext. 10- Chargesheet relating to Sahebganj P.S. Case No. 2 (1) of 1985, Ext. 11- order dated 20.3.1989 passed in GR No. 26 of 1989, Ext. 12- Order dated 16.5.1987 passed in Cr. Misc. No. 109 of 1987 and Ext. 13- Order passed in RMA No. 91 of 1986-87. 10. Defence had also got exhibited certain documents. They are: Ext. A- Order sheet dated 23.7.1984 and Ext. B- Order sheet dated 11.12.1986. 11. After hearing both sides as well as going through materials available on the record, it is evident that the Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 7 prosecution had adduced evidence falling into two categories. The first happens to be that of eye witness and second happens to be the oral dying declaration. Some of the witnesses, as is evident, stood over both counts. 12. Firstly, we would like to refer the evidence of Dr. Kailash Jha PW 7 first who had conducted post mortem over the dead body of the deceased Tarni Prasad Mandal on 16.3.1985 at about 11.15 AM and found following injuries:- “(i) Fire arm wound of entry on forehead right side ½” x ¼” x skull cavity situated at ½” above midjoin of eye brow tattooing on right side face and neck. The projectile passed postero lateral to left side lacerating fore-brain and mid-brain of left hemisphare. The bullet was lodged between skull bone and menizes at temporo occipital junction. Skull bone fractured at multiople places. Blood clot subdural and intradurally at left side. (ii) Fire arm wound of entry at right arm anteromedially at lower part of deltoid 2/3” x ½”. The conical bullet lodged inside armbone numerous. 1 ½” below neck the right numrous bone fractured upper part. The bullet was recovered and sealed.” In the opinion of the doctor, the time elapsed since death happens to be 24-30 hours and virtually covers the time of so alleged occurrence. The doctor had also found that the aforesaid injuries were sufficient in ordinary course of nature to cause death. The doctor had also narrated that injured might have been in a position to speak but queried within ‰ an hour to 1 hour from the time of sustaining of the injuries. From his cross-examination Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 8 though he had reiterated the aforesaid view, shown the presence of injury on account of firing of shot from close range that means to say, presence of tattooing mark is indicative of the fact that the deceased was assaulted within five feets. 13. In a way to scrutinize the evidence on record, first of all veracity of ocular evidences have to be seen in the background of medical evidence. Surprisingly prosecution witness no. 1 to 6 and 8 failed to say anything during their examination in chief. They had failed to disclose the distance in between the victim as well as the assailant. However, some of the witnesses were cross- examined on this very score. PW 2, claimed himself to be an eye witness to the occurrence, had stated in paragraph 12 that the firing was made from 20-25 hands which was again corrected by him 6-10 hands. That means approximately 12 feet to 15 feet. 14. PW 5 in paragraph 9 had stated that firing was made by the accused persons from the distance of 3-4 hands. This means to say 5 to 6 feet approximately. 15. Now coming to the other aspect, it is evident that PW 1 was informed by Prasadi and Ayodhi regarding the occurrence committed by Pasupati and Badari over which he came to Pirpainti and found his brother at the clinic of Dilip Doctor. He had not disclosed the theme of dying declaration nor that he was however, informed by informant Dilip Kumar Mandal or by any other witness regarding the occurrence committed at the hands of accused above named. On account of non-examination of Prasadi Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 9 and Ayodhi, his evidence became inadmissible in the eye of law because of the fact that he does not satisfy his status as hearsay witness on account thereof. 16. PW 2, though does not find his place in the fard-beyan to have accompanied the deceased to school and further he also kept mum how he was able to arrive at the place of occurrence from his house Madhubani Diyara, claimed himself to be an eye witness to the occurrence by stating that on 15.3.1985 at 9.30 AM while he was going from Girija Chouki to Madhubani Diyara and reached on southern flank of Salempur Ghat, he found Tarni Prasad Mandal coming along with Kanahai and Naresh followed by Pasupati and Badri who over took him and then both of them shot at Tarni Mandal causing injury over his hand and well as on the eye and on account thereof he fell down. On hue and cry he along with other resident of Salempur village chased both of accused who managed to escape. He came to the place of occurrence where Tarni Mandal had divulged names of his assailants to Dilip Mandal and Ashok Mandal. Tarni was later on taken to hospital. During cross-examination, he admitted that he is the brother-in-law of eldest brother of the deceased. He also disclosed that he was going for registration of Tarni at Dubauli High School. He also disclosed that Tarni was going along with Kanahai and Naresh. Then he had said that first of all Dilip had inquired from Tarni and then from him. Paragraph 9 happens to be the contradiction. In paragraph 12, he had stated that other two Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 10 friends of Tarni were proceeding ahead, so from his evidence it transpires that he had not claimed to have inquired form deceased at the other hand he claimed identification of Pasupati and Badri. It is also evident from his deposition that what ever disclosure by way of oral dying declaration was made by Tarni, it was to Dilip and Ashok. 17. PW 3 had stated that on the alleged date and time of occurrence while he along with Naresh and deceased Tarni were going towards Dubauli High School and as soon as reached near Salempur village, they gone ahead while Tarni remained behind. Two persons had shot at Tarni. On account of sustaining injuries Tarni fell down. The assailants in spite of being chased, managed to escape. They returned back and reached near Tarni where his brother Dilip inquired from him. Tarni had stated that Badri and Pasupati Mandal have shot at him. During cross- examination he had admitted that Badri and Pasupati were known to him since before the occurrence. He had not identified the assailant. Litigation in between the prosecution party as well as Badri and Pasupati is going on. Because of the fact that assailants were unknown to them, he could not identify them. Dilip had arrived at the place of occurrence at about 10.00 to 10.30 AM. Whatever Tarni had narrated Dilip he also heard. Then, thereafter, he had gone to school. In paragraph 7 he had also narrated that when he came near Tarni Mandal he found him unconscious. He had sustained injury over his right hand as well as right side of Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 11 head. Therefore, presence of appellant at the spot as an assailant was negativated by this prosecution witness. 18. PW 4 had stated that on the alleged date and time of occurrence while he was at his Khalihan which lies 70-80 hands eastern southern corner of the place of occurrence, his servant came and said that one firing has been made and a student got injured. He rushed to the spot and found one student in injured condition lying at the road while two persons were fleeing towards eastern direction who were being chased by 20-25 persons. He also joined but could not succeed in apprehending them. He then claimed identification by face and had also identified both the appellant (Rajendra @ Badri Mandal since deceased) in dock. During cross-examination at paragraph 6, he had disclosed that they returned back near injured after an hour. He had also narrated that he had not gone to identify the accused in TIP. He had seen the accused after the occurrence for the first time in court. In the aforesaid background it is difficult to accept his version so far identification of appellants are concerned as he failed to divulge how he was able to see face of the accused, apart from the fact that his evidence was recorded after four years of occurrence. 19. PW 5 had stated that while he was carrying bundle of wheat over his head, he found Badri and Pasupati crossing him rapidly and identified both of them. Three students were going. These two stood up in front of one student and then shot at on account of which the student sustained injury and fell Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 12 down. Thereafter, he threw the bundle from his head and raised alarm. He including others also chased but could not succeed in apprehending the accused. Then he returned back and came near the place of occurrence. The student was saying something and was conscious. His family members were also present. He identified the injured as Tarni Prasad Mandal. During cross-examination at paragraph 6, he had disclosed that he was knowing the accused persons for the last two to three years as both worked together. At that very time Badri was aged about 10-12 years while Pasupati was aged about 15-16 years. In paragraph 8 he had disclosed that when he had seen the accused persons for the first time they were 2-3 hands behind from him while the students were 15-20 hands ahead from him. In paragraph 10, he had stated that he had already informed to the persons assembled there that the assailants are from village Kudarjanna. From his evidence it is apparent that manner of identification was improbable on account of having bundle over his head. In that eventuality, it was not possible for this witness to identify the appellant for the first time while they were behind him as well as he had also shown his evidence to be unreliable so far source of identification since before the occurrence is concerned. In the background of the fact that on the date of his examination 31.7.1988, he had not stated the of age of both the appellants but deducting 2 or 3 years of age, Pasupati was estimated to be aged about 15 years and Badri was aged about 10- 12 years. Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 13 20. PW 6 happens to be the another witness who had accompanied the deceased in the way to school along with PW 3 Kanhaiya Lal Mandal. He had stated that while he along with Kanhai and Tarni was going Dubauli High School and reached near south of Salempur Ghat two persons shot at Tarni causing injury over his hand as well as near temporal region. Tarni fell down. Assailants managed to escape although were chased. Then he returned back and found Tarni uttering to his brother Dilip but he could not hear. Later on Dilip said that Tarni had said that Badri and Pasupati had shot at him. He also stated that he had made statement before the Police that Tarni was saying to Dilip that Badri and Pasupati had shot at him. During cross-examination, he had stated that Dilip had divulged the name of assailant then and there when Tarni had stated to Dilip although he had not heard the same. He was not knowing the assailant since before. Neither he inquired from Tarni nor Tarni on his own had disclosed the names of his assailant. In paragraph 6 he failed to identify the accused and further disclosed that he had not seen these persons at any moment since before. 21. PW 8 is the informant. Admittedly he does not happen to be the eye witness to the occurrence. He had stated that he had informed Srikant Mandal to come for registration of his brother Tarni but as he failed to arrive therefore, his brother Tarni proceeded towards school along with Kanahi and Naresh. His elder brother was not present at the house. Laxmi Mandal came on Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 14 bicycle just after 15-20 minutes after departure of Tarni and divulged that Tarni was shot at south of Salempur Ghat and is lying. Then, he along with others had gone to Salempur Ghat where he found Tarni Mandal in an injured condition. He had also found injury over his head, hands and temporal region. On query, Tarni had stated that Pasupati and Badri Mandal had shot at him. At that very time Srikant, Naresh and Kanhai and others were also present. Srikant had also disclosed that Pasupati and Badri escaped after shooting Tarni. Then, thereafter, he took Tarni to Pirpainti Hospital where first aid was given. At that very time Tarni was alive and was able to speak. From Referral Hospital Pirpainti he shifted the deceased to the clinic of Dr. Dilip where his eldest brother Srikant Mandal had arrived. As per instruction, while Tarni was to be shifted then he succumbed. Long standing animosity has been shown to be the motive of the occurrence. From paragraph 6 of his cross-examination, it is evident that the appellant belongs to one branch while the prosecution party belongs other. Because of the fact that first branch had no male descendants and mother of these two appellants advanced her ‰ share in the property which led to dispute and on account thereof series of litigation cropped up amongst the parties. Paragraph 10 happens to be the contradiction with regard to his fard-beyan. While paragraph 11 happens to be with regard to his further statement. In paragraph 13 he has stated that when he reached at the place of occurrence his brother was lying and was moaning. He took his head in his lap and then talked Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 15 with him. He also stated that Srikant Mandal arrived there after his arrival. He had talked with them. This witness had deposed mainly over oral dying declaration. 22. PW 9 is the investigating authority who had recorded fard-beyan of the informant (PW 8) and then took up the investigation. During course of investigation, he had sent the dead body for post mortem, inspected the place of occurrence, found copious blood over road, took statement of the witnesses as well as necessary information with regard to litigation pending between the parties and after concluding the investigation had submitted chargesheet. During cross-examination, he had admitted that he had not gone to referral hospital to inquire whether the deceased was conscious, admitted, treated and in likewise manner also not gone to the clinic of Dr. Dilip Kumar. 23. From the evidence on record, it is evident that neither the own brother of the informant namely, Ashok Kumar Mandal nor the maternal uncle Anant Lal Mandal have been examined nor there happens to be any explanation for their non- examination whose presence like informant was shown at the place of occurrence had made oral dying declaration. In likewise manner the FIR attesting witness Ganesh Yadav and Jai Prakash Suman have also not been examined. Long standing animosity amongst the parties are also admitted one. In the aforesaid background when the evidence of PW 3 Kanhaiya Lal Mandal and PW 6 Naresh Prasad Mandal, whose presence along with deceased Tarni Prasad Mandal Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 16 happens to be an admitted one is gone through, it is evident that they have completely ruled out presence of these two appellants at the spot although admitted with regard to oral dying declaration. That means to say, at one side the presence of appellants happens to be shrouded and doubted while at the other hand theme of oral dying declaration happens to be. In likewise manner when the evidence of PWs 4 and 5 have been minutely gone through, the story of identification of appellant by them became doubtful and that happens to be also with regard to evidence of PW 2. That means to say the proper identification of the appellant at the spot during commission of crime to be as assailant have become doubtful. With regard to presence of oral dying declaration whereunder names of appellant along with Badari cropped up, also became doubtful as the version of dying declaration to the extent of disclosing names of assailant are found contradicted by PW 6 while PW 3 ruled out presence of appellant along with Badari at the spot. Further more, the requirement over admissibility of oral dying declaration is also found missing in terms of principle laid down by the Hon’ble Apex Court in the case of Waikhom Yaima Singh V. State of Manipur reported in 2011 Cr. Law Journal page 2673: “15. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, Patna High Court CR. APP (DB) No.216 of 1990 dt.18-03-2013 17 where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said too have heard it. In the present case also, the exact words are not available. They differ from witnesses to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not.” 24. From the evidences on record, it is apparent that none of the prosecution witnesses have been able to utter the exact word of oral dying declaration whatever was made by the deceased Tarni Prasad Mandal during course of its divulgence before PW 8 Dilip Kumar Mandal on query. Not only this, from the evidence of PWs it is evident that none of the witnesses are consistent on this score, so far as exact word used during oral dying declaration is concerned. Therefore, applying the principle as referred above, it is apparent from the evidence of the prosecution witnesses that prosecution had not fulfilled the criteria. On account thereof, the sanctity of the oral dying declaration is found to be daunted one. 25. Thus, judgment of conviction and sentence recorded by the learned trial court is set aside. The appeal is allowed. Appellant Pasupati Mandal is on bail. Hence, he is discharged from its liabilities. (Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) Avin/N.A.F.R.