Umesh Mandal v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 1408 of 2018 Umesh Mandal Versus The State of Jharkhand With .… …. .… .… Appellant …. …. Respondent Cr. Appeal (D.B.) No. 1329 of 2018 Premchand Mandal Versus The State of Jharkhand With …. …. …. …. Appellant …. …. Respondent Cr. Appeal (D.B.) No. 1410 of 2018 Nepali Mandal Versus The State of Jharkhand --------- …. …. …. …. Appellant …. …. Respondent (Against the Judgment of Conviction dated 04.10.2018 and Order of Sentence dated 05.10.2018 passed by the District & Addl. Sessions Judge-VIII, Giridih in S.T.No.158 of 2013) --------- P R E S E N T SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. For the Appellants For the State : Mr. Kaushik Sarkhel, Advocate : Mrs. Priya Shrestha, Spl. P.P. [In Cr. Appeal (D.B.) No. 1408/2018 & Cr. Appeal (D.B.) No. 1410/2018] : Mr. Sanjay Kumar Srivastava, A.P.P. [In Cr. Appeal (D.B.) No. 1329 of 2018] --------- C.A.V. on 19.06.2024 : Pronounced on 02.07.2024 Per Subhash Chand, J : --------- Since the instant Cr. Appeals arise out of the same impugned order, they are taken up together and are being disposed of by this common order. 2. The instant Cr. Appeals have been directed on behalf of the appellants/convicts Umesh Mandal, Premchand Mandal & Nepali Mandal against the Judgment of Conviction dated 04.10.2018 and Order of Sentence dated 05.10.2018 passed by the learned District & Addl. Sessions Judge-VIII, Giridih in S.T.No. 158 of 2013, arising out of Ahilyapur P.S. Case No. 20 of 2012 whereby the appellants were convicted for the offence under Sections 302/34, 342/34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 2,000/- each and in default of payment of fine, S.I. for three months for the offence under Sections 302/34 of I.P.C. The appellants/convicts further sentenced to undergo R.I. for one (1) year and fine of Rs.500/- each and in default of payment of fine S.I. for 3 months for the offence under Section 342/34 of the I.P.C. All the sentences were directed to run concurrently. 3. The brief facts of the prosecution case leading to this Cr. Appeals are that the “fardbeyan” of informant Pinky Devi was recorded on 26.08.2012 at 5:30 in the morning before the Head clerk of Ahilyapur Police Station at the place of occurrence that on previous day of Saturday she had come to her parental house with her husband. Her sister Rekha Devi and Putul Devi had also come there before her. Her father Arjun Mandal had killed a duck on arrival of all the sisters, the same was being cooked up. Her father along with Gouri Sharma and Laxman Mandal was sitting in the courtyard of the house and in the front Verandah Sunpati Mandal and the brother Bajrangi Mandal were also sitting and the informant was sitting in the Verandah along with her husband and brother then at about 6 p.m. her cousin Nepali Mandal came 2 and abused and went away. Thereafter at 9 O’ clock Nepali Mandal, Umesh Mandal and Prem Chand Mandal all came there. Nepali Mandal and Prem Chand Mandal both caught hold of her father Arjun Mandal and Umesh Mandal stabbed her father in abdomen and on account of stab wound the intestine came out. Her aunt Ketki Devi had also caught hold of her father. After that all the accused fled away. Her father was taken to the Hospital at Giridih where he died during course of treatment. This occurrence took place on account of dispute regarding the partition and old enmity. On this “fardbeyan” case crime No. 20 of 2012 was registered under Section 342/326/307/302 read with 34 of I.P.C. with the Police Station Ahilyapur against the accused Nepali Mandal, Umesh Mandal. Prem Chand Mandal and Ketki Devi. 4. The Investigating Officer after having concluded the investigation filed charge-sheet before the Magistrate concerned who committed the case for trial to the Court of Sessions Judge, Giridih who further transferred the same to the Court of Additional Sessions Judge-III, Giridih. 5.
Legal Reasoning
The Trial Court framed charge against Nepali Mandal, Umesh Mandal and Prem Chand Mandal under Sections 342/302 of I.P.C. The charge was read over and explained to the accused persons who denied the charge and claimed to face the trial. 6. On behalf of prosecution to prove the charge against the accused persons in oral evidence examined altogether 15 witnesses P.W.1-Putul Devi, P.W.2-Rekha Devi, P.W.3-Pinky Devi, 3 P.W.4-Bajrangi Kumar Mandal, P.W.5-Shankar Mandal, P.W.6-Gulli Mandal, P.W.7-Vishwanath Mandal, P.W.8-Gulab Mandal, P.W.9-Laxman Mandal, P.W.10-Baleshwar Mandal, P.W.11-Kamal Mandal, P.W.12-Sunita Devi, P.W.13- Dr. Ashok Kumar Deo, P.W.14-Kolej Mandal and P.W.15-Saman Kujur and in documentary evidence filed Ext.1-signature of Pinky Devi on written report, Ext.2-signature of Bajrangi Kumar Mandal on carbon copy of postmortem report, Ext.3-signature of Gulab Mandal on seizure list, Ext.4- P.M. report, Ext.1/1-Endorsement on “fardbeyan” Ext.5-F.I.R., Ext.3/1-seizure list and Ext.2/1 Inquest report. 7. The statement of the accused was recorded under Section 313 of Cr.P.C. All the accused persons denied the incriminating circumstances in evidence against them and stated themselves to be innocent. 8. The learned trial court after hearing the rival submission of learned Counsel of parties, passed the impugned Judgment of Conviction and Sentence against the accused Umesh Mandal, Prem Chand Mandal and Nepali Mandal under Section 302/342 read with 34 of I.P.C. and sentenced with imprisonment for life and fine of Rs.2000/- each and in default of payment of fine S.I. for 3 months for the offence under Section 302/34 of I.P.C. and the appellants/convicts further sentenced to undergo R.I. for one (1) year and fine of Rs.500/- each and in default of payment of fine S.I. for 3 months for the offence under Section 342/34 of the I.P.C. 4 9. Aggrieved from the impugned Judgment of Conviction and Sentence, the Cr. Appeal (D.B.) No. 1408 of 2018 was preferred on behalf of Umesh Mandal, Cr. Appeal (D.B.) No. 1329 of 2018 was preferred on behalf of Prem Chand Mandal and Cr. Appeal (D.B.) No. 1410 of 2018 was preferred on behalf of Nepali Mandal. 10. We have heard the learned Counsel of appellants in all the three appeals and the learned A.P.P. for the State and perused the material on record. 11. In order to decide the legality and propriety of the impugned Judgment of Conviction and Sentence passed by the learned court-below, we would like to appreciate the evidence on record which is reproduced hereinbelow: 11.1 P.W.1-Putul Devi. This witness in her Examination-in-chief says the occurrence was of 25.08.2012. She was at her parental house. Her sister Rekha Devi and elder sister Pinky Devi were also there. Her brother-in-law Shankar Mandal was also there. Her father Arjun Mandal, brother Bajrangi Mandal was also there. At 6 O’ clock in the evening Nepali Mandal came and abused to her father and went away. About 9 O’ clock in the night Umesh Mandal, Nepali Mandal, Prem Chand Mandal, Ketki Devi and Usha Devi came there. Nepali Mandal, Prem Chand Mandal, Ketki Devi caught hold of her father. Umesh Mandal brought the knife from his waist and stabbed the same in the stomach of her father. The intestine came out. Her father while falling on the ground had stated that Umesh Mandal had assaulted him with knife. Shankar 5 Mandal, Pinky Mandal and Bajrangi Mandal took her father to the Giridih hospital where he was declared dead. She identified the accused Umesh Mandal and Nepali Mandal in the dock and also stated that she can identify the others also. In cross-examination this witness says Umesh, Nepali, Prem Chand all are her cousin brother. Ketki is her aunt and Usha is her Bhabhi. There is a land dispute between us and them. Her father worn the Gamchha and the whole of the body was open. The under pant of him was blood stained. The police was informed by her brother-in-law Shankar Mandal. The Police had interrogated her. Her father was taken by Shankar Mandal, Bajrangi and the 4 to 5 persons of the village. 11.2 P.W.2-Rekha Devi in her Examination-in-chief says her parental house is Chamliti village P.S. Ahilyapur. The occurrence was of 25.08.2012. She along with her younger sister Putul Devi were in parental house. Pinky Devi and her brother-in-law had also come there. Her father Arjun Mandal and brother Bajrangi Mandal were also there. At 6 O’ clock in the evening Nepali Mandal came hurled abuse to her father and went away. Again at 9 O’ clock in the night Nepali Mandal, Umesh Mandal, Ketki Devi, Usha Devi, Prem Chand Mandal all came to the courtyard of the house. Nepali Mandal, Prem Chand Mandal, Ketki Devi and Usha all caught hold of her father and Umesh Mandal stabbed her father in the stomach whereby his intestine came out. Her father was taken to the Hospital by Pinky Devi, brother-in-law Shankar Mandal, brother Bajrangi Mandal and other persons of the village to Giridih 6 Hospital where he was declared dead. In cross-examination this witness says when Nepali Mandal abused her father at that time Laxman and Gouri were also sitting with her father. At that time no fight took place. At 9 O’ clock in the night the father was alone in the courtyard. She was cooking food. Hearing alarm she came out. Father had fallen on the ground. Her hands, cloths also stained with blood. Police did not take in possession her cloths which she had burnt. Her father had worn the under pant and had also Gamchha on his body. Under Pant and Gamchha were blood stained. She is not aware whether Police took them in possession or not. They had raised alarm. 15 to 20 persons of the village had come there. But on account of the night no one went to the Police Station. Mukhiya was also not informed in the night. 11.3 P.W.3-Pinky Devi informant in her Examination-in-chief says the occurrence is of 25.08.2012. On that day she along with her husband Shankar Mandal had gone to her father’s house. Her sister Rekha and Putul had also come there and in the parental house her father and brother Bajrangi were also present there. At 6 O’ clock Nepali Mandal came abused her father and went away. At 9 O’ clock Nepali Mandal, Prem Chand Mandal, Umesh Mandal, Ketki, Usha Devi came to her house. Prem Chand, Nepali, Ketki and Usha all caught hold of her father and Umesh Mandal gave the stab wound in the stomach of her father whereby the intestine came out. Father was taken to Giridih Hospital where he was declared dead. In the morning in Ahilyapur Police Station Daroga 7 Ji had recorded he statement. She put her signature thereon identifies the same marked Ext.1. In cross-examination this witness says that Police was informed by her husband Shankar Mandal also in the night itself. But the Police did not come in the night. They reached to the Hospital at 11 or 11:30 O’ clock in the night. Police recorded her “fardbeyan” in the morning and again 1 O’ clock in the day time recorded her statement. She is not aware whether the blood stained Gamchha and under pant of the father were taken in custody by the Police. In the “fardbeyan” she did not mention the name of Usha Devi. All the persons of the locality came after raising alarm. 11.4 P.W.4-Bajrangi Kumar Mandal in his Examination-in-chief corroborated the prosecution story and also the statement of his sister Rekha, Putul and Pinky and he also says that inquest report was prepared of the dead-body of his father. He identifies his signature on the carbon copy of the same marked Ext.2. Police had interrogated him. In cross-examination this witness says he has not stated the name of Usha Devi along with other co-accused to the Police. The land dispute between them and the accused persons is old one. He is not aware whether the blood stained Gamchha and the under pant of his father was taken by the Police in custody or not. The Police did not make demand the cloth so same was not given. Prior to burnt those cloths, same had been thrown. His cloths were also bloodstained. Police did not demand them from him. Before he reached there the accused persons had 8 fled away having given the stab wound. He had seen them fleeing away. Shankar Mandal had given information to the Police Station over the phone. 11.5 P.W.5-Shankar Mandal in his Examination-in-chief also corroborates the prosecution story and in cross-examination this witness says his brother-in-law Bajrangi Mandal was in Verandah. The occurrence took place in the courtyard. It was electric light there. He did not nab any of the accused. They fled away within 10 to 15 minutes after committing the occurrence. The knife was 6”. It was bloodstained. Her father-in-law had worn the under pant and Gamchha of red colour. All the cloths were burnt with the dead-body. He also gave the “fardbeyan”. Bajrangi Mandal had also put the signature thereon. 11.6 P.W.6-Gulli Mandal in his Examination-in-chief says he knows nothing in regard to the occurrence. Police did not interrogate him. This witness was declared hostile and in cross-examination by the prosecution he denied the statement under Section 161 of Cr.P.C. given to the I.O. 11.7 P.W.7 is Vishwanath Mandal. He also in his Examination-in-chief says he knows nothing in regard to the occurrence. Police did not interrogate him. He was also declared hostile and in cross-examination by the prosecution he denied the statement under Section 161 of Cr.P.C. given to the I.O. 9 11.8 P.W.8-Gulab Mandal is the witness of the seizure memo. He identifies his signature on the seizure memo marked Ext.3. In cross-examination he says he put his signature on the plain paper. 11.9 P.W.9-Laxman Mandal also says that he knows nothing in regard to the occurrence. Police did not interrogate him. He was declared hostile and in cross-examination by the prosecution he denies the statement under Section 161 of Cr.P.C. given to the I.O. 11.10 P.W.10-Baleshwar Mandal also says he knows nothing in regard to the occurrence. Police did not interrogate him. He is declared hostile and in cross-examination by the prosecution he denies the statement under Section 161 of Cr.P.C. given to the I.O. 11.11 P.W.11-Kamal Mandal also says he knows nothing in regard to the occurrence. Police did not interrogate him. He is declared hostile and in cross-examination by the prosecution he denies the statement under Section 161 of Cr.P.C. given to the I.O. 11.12 P.W.12-Sunita Devi in her Examination-in-chief says the occurrence is of 05 years ago. She was in her parental house and came to know that Nepali Mandal, Umesh Mandal had given her husband Arjun Mandal knife blow. On receiving this information she went to the Giridih Hospital and found her husband in injured condition. Her son-in-law Shankar Mandal told her that Umesh had stabbed him. The persons of village also told that Nepali had caught hold of him and Umesh Mandal stabbed him. There was land dispute between the two. 10 11.13 P.W.13-Dr. Ashok Kumar Deo in his Examination-in-chief says that on 26.08.2012 he was posted at Sadar Hospital Giridih as a Medical Officer. At 11:20 he conducted the postmortem of the body of deceased Arjun Mandal and found the following injures: I) Rigour Mortice present on all four limbs and surgical tap on abdomen was found. II) On examination following antemortem injury was found- i. 3” x ¼” x deep to abdominal cavity near left iliacfossa. ii. On dissection of skull-NAD, Chest-lungs pale, heart-left side empty, right side contains blood. iii. On dissection of abdominal cavity it was filled with excessive blood, rupture of descending colon, rupture of left illiac artery and vein. iv. Cause of death-excessive bleeding from above injuries caused by sharp edge mentioned weapon like Bhala and Chaku. v. Time of death 8-12 hours approx. This postmortem report is in his pen and signature which is marked as Ext.4. 11.14 P.W.14-Kolej Mandal also says he knows nothing in regard to the occurrence. Police did not interrogate him. He was declared hostile and in cross-examination by the prosecution. He denies the statement under Section 161 of Cr.P.C. given to the I.O. 11.15 P.W.15 is Saman Kujur in his Examination-in-chief says that on 26.08.2012 he was Station Officer of Ahilyapur Police Station. He recorded the “fardbeyan” of Pinky Devi which in his pen and signature which bears signature of Pinky Devi as well. He made the endorsement thereon identifies the same marked Ext. 1/1. The formal F.I.R. was prepared by local 11 Chaukidar Gobardhan Mallah which is in his pen and signature. He identifies the same marked Ext.5. The investigation of Ahilyapur P.S. Case No. 20 of 2012 was done by him on 26.08.2012. He recorded the restatement of informant and inspected the place of occurrence which is in village Chamliti wherein the tiled house of deceased Arjun Mandal. In the East of the place of occurrence is the house of deceased and in West is the house of cousin brother Nakul Mandal and in North and South is of him the bloodstained soil was taken by him prepared the seizure memo which is in pen and signature marked Ext.3/1. He also recorded the statement of Putul Devi, Rekha Devi, Bajrangi Mandal, Shankar Mandal, Gulli Mandal, Gulab Mandal. The inquest report is in handwriting of S.I. Ramswaroop. He identifies the hand writing and signature marked Ext. 2/1. After recording the statement of all the witnesses, he was transferred and investigation of this case was handed over to Rajeev Kumar. He had also received the postmortem of deceased which is on record. In cross-examination this witness says the blood-stained soil was not sent to F.S.L. by him. The same was not sealed by him wherein the apparel of the deceased he did not seize. No one witness had told the name of Usha Devi to him in the occurrence. 12. The learned Counsel for the appellant has submitted that the impugned Judgment of Conviction and Sentence of all the appellants is based on wrong appreciation of the evidence. P.W.1-Putul Devi, P.W.2-Rekha Devi, P.W.3-Pinky Devi, 12 P.W.4-Bajrangi Kumar Mandal, P.W.5-Shankar Mandal all these five have posed themselves to be the eye-witness though they are not the eye-witness of the occurrence and they are the close relative of deceased and are interested witness. The enmity between the appellants and the informant is admitted to all the prosecution witness as land dispute. As such the appellants have been falsely implicated in this case. The weapon which is alleged to be used in commission of the murder was not seized and same was not produced. The blood-stained apparels of the deceased were not sent to the F.S.L. Therefore, contended to set aside the impugned Judgment and to allow the appeal acquitting all the
Legal Reasoning
appellants. The learned Counsel for the appellants also submitted that there are two “fardbeyan” one is of Pinky Devi and another is of Shankar Mandal. There cannot be two “fardbeyan” of the same occurrence and there is also discrepancy in the contents of both the “fardbeyan” which is fatal to prosecution case and makes the whole prosecution story doubtful. 13. The learned A.P.P. opposed the contentions made by the learned Counsel for the appellants and submitted that the impugned Judgment is based on the proper appreciation of the evidence on record needs no interference. The case is based on the direct evidence. As such the production of the weapon cannot be said to be fatal to the prosecution case. 14. So far as the contention of the learned Counsel for the appellants in regard to the two “fardbeyan” is concerned, it is 13 evident from the record that the first “fardbeyan” was recorded of Pinky Devi on 26.08.2012 at 5:30 in the morning by the Bara Babu of Police Station Ahilyapur at place of occurrence and the second “fardbeyan” is of Shankar Mandal which was recorded on 26.08.2012 at 8:30 O’clock at the Sadar Hospital Giridih. 14.1 The first “fardbeyan” which was of Pinky Devi on the basis of the same the formal F.I.R. was prepared which was registered on Ahilyapur P.S. Case No. 20 of 2012 on the very date on 26.08.2012 under Sections 342/326/307/302 read with 34 I.P.C. against Nepali Mandal, Umesh Mandal, Prem Chand Mandal and Ketki Devi as well. The contention of the learned Counsel for the petitioner that these two “fardbeyan” are fatal to the prosecution case is not accepted because on the first “fardbeyan” of Pinky Devi, the formal F.I.R. was prepared. So far as the second “fardbeyan” is concerned that can be only the written statement of Shankar Mandal in regard to the same it was incumbent upon the defence counsel to cross-examine the witness Shankar Mandal in order to contradict and corroborate the contents of this written statement of Shankar Mandal during cross-examination by showing the same in view of Section 145 of the Evidence Act. From the perusal of the statement of P.W.5 Shankar Mandal it is found that the attention of the witness during cross-examination was not drawn to his written statement and he was not cross-examined showing this written statement under Section 14 145 of Evidence Act. Therefore, the plea raised by learned Counsel for the appellants is not found to be tenable. 15. The prosecution case is based on direct evidence. The place of occurrence is the courtyard between the house of the deceased and the house of the accused persons. The time of occurrence is 9 O’ clock in the night. The prosecution witness P.W.1 Putul Devi, P.W.2-Rekha Devi, P.W.3-Pinky Devi, P.W.4-Bajrangi Kumar Mandal, P.W.5-Shankar Mandal all are the close relative of the deceased and they all were present at the time and date of occurrence in the house of deceased. Admittedly, the land dispute is between the accused persons and the informant side. But simply on the basis of the old enmity and being the relative of the deceased, the testimony of these witnesses cannot be discarded. 15.1 It is the settled law that the enmity is a double-edged weapon on account of which the possibility of commission of the offence are the same as that of false implication. 15.2 The Hon’ble Apex Court held in Kunwarpal vrs. State of Uttarakhand (2014) 16 SCC 560 at para 16 as under: litigation 16. According to the complainant there was between them and the accused persons leading to enmity. PW 3 Atmaram has also stated that there was litigation between them and it culminated in the occurrence. Animosity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime (Ruli Ram v. State of Haryana5 and State of Punjab v. Sucha Singh6). In the instant case there is no foundation established for the plea of false implication advanced by the accused and on the other hand evidence shows that enmity has led to the occurrence. 15 15.3 So far as the testimony of interested witnesses are concerned, since all these witnesses are the inmates of the house and their presence at the place of occurrence is not shaken at all during the cross-examination. However, being the interested witnesses, their testimony is to be evaluated cautiously. 15.4 P.W.1-Putul Devi, P.W.2-Rekha Devi, P.W.3-Pinky Devi these three are the daughters of the deceased. All had come to the house of her father on the fateful night. P.W.4-Bajrangi Kumar Mandal is the son of deceased. He was also inside the house at the time of occurrence. P.W.5-Shankar Mandal was also present in the Verandah at the time of occurrence which is adjoining to the courtyard wherein the occurrence took place. All these six witnesses have categorically stated that on 25.08.2012 at 6 O’ clock the deceased Arjun Mandal along with Gouri and Laxman Mandal were sitting in the courtyard. The son Bajrangi Kumar Mandal and the son-in-law Shankar Mandal were in the Verandah and all the three daughters were in the house. Putul Devi was cooking duck which has been hunted by deceased Arjun Mandal. At 6 O’clock Nepali Mandal came there he abused Arjun Mandal and went away. 15.5 Again at 9 O’clock in the night Nepali Mandal, Umesh Mandal and Prem Chand Mandal all the three came along with Usha Devi and Ketki Devi. The Investigating Officer filed 16 charge-sheet only against the three Nepali Mandal, Umesh Mandal and Prem Chand Mandal. Charge was also framed during trial against the three. All these witnesses stated that the accused Nepali Mandal and Prem Chand Mandal had caught hold of the deceased and it was Umesh Mandal who had stabbed to the deceased in the abdomen and all the accused persons immediately fled away after committing the offence and the injured Arjun Mandal was rushed to the Sadar Hospital Giridih where he was declared dead. 15.6 Therefore, in regard to the date time and place and manner of the occurrence there is no discrepancy in the statement of all these eye-witnesses of the occurrence. As per testimony of the Investigating Officer P.W.15-Saman Kujur the place of occurrence is the courtyard and adjoining to the same is the house of Arjun Mandal. The house of the deceased is also adjoining to the courtyard which also comprises the Verandah. Soon after the occurrence all these accused persons came to the courtyard of the house and the injured Arjun Mandal had fallen on the ground having sustained stab wound in his abdomen. Accused persons fled away and he was taken to the Hospital. 15.7 Therefore, no contradiction is found in regard to the commission of the offence in testimony of all these witnesses and also in the statement given to the I.O. during investigation under Section 161 of Cr.P.C. There is also inter se consonance in the statement of all these five eye-witnesses whose presence is 17 found to be natural and same is also established from the prosecution evidence. No contrary contradiction could be drawn by the defence witnesses in regard to their presence at the place of occurrence. 15.8 The Hon’ble Apex Court held in Ravishwar Manjhi & Ors. Vrs. State of Jharkhand 2009 AIR SCW 757 at para 24 as under: 24. Out of seven eye-witnesses, P.W. 7 was not believed by the courts below. P.Ws. 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eye-witnesses were related to the deceased. However, we do not hesitate to add that only on that ground their evidences should not be disbelieved. 16. The contention of Appellants’ learned Counsel that the independent witnesses have turned hostile, as such the prosecution case becomes doubtful. This contention is not sustainable because merely becoming hostile of P.W.6 Gulli Mandal, P.W.7 Vishwanath Mandal, P.W.8 Gulab Mandal, P.W.9 Laxman Manda, P.W.10-Baleshwar Mandal and P.W.11 Kamal Mandal, P.W.14 Kolej Mandal who are the independent witness but are not the eye witness of occurrence; the testimony of prosecution eye witnesses P.W.1-Putul Devi, P.W.2- Rekha Devi, P.W.3-Pinky Devi, P.W.4 Bajrangi Mandal & P.W.5 Shankar Mandal cannot be discarded whose testimony is found trustworthy and is corroborated with medical evidence P.W.13 Dr. Ashok Kumar Deo and evidence of P.W.15 Saman Kujur, the Investigating Officer. As such the hostility of independent 18 hearsay witnesses cannot be ground to disbelieve the testimony of eye-witnesses. 161. The Hon’ble Apex Court held in Ravasaheb @ Ravasahebgouda vrs. State of Karnataka 2023 LiveLaw S.C. 225 at para 21 as under: 21. Merely because no recovery was made from anyone apart from accused Nos.2 and 4 would not mean that others were not present at the scene of the crime; simply because a number of witnesses had turned hostile, does not on its own give a ground to reject the evidence of PW-1; and that PW-1 being the brother of the deceased and therefore, is an interested as well a chance witness, are untenable submissions. It is in the backdrop that we do not find favour with the submissions of Mr. Nagamuthu S., and Dr. K. Radhakrishnan, learned senior counsel appearing for the appellants that the conviction of eight persons based on solitary evidence is not justified, particularly when there is no vagueness in his testimony with respect to the role ascribed to each one of the accused. 17. So far as the testimony of all these five eye-witnesses are concerned, same is also corroborated with the medical evidence. P.W.13 Dr. Ashok Kumar Deo has shown the one antemortem injury 3”x ¼”x deep to abdominal cavity near left iliacfossa and cause of death is also shown excessive bleeding. The injury is likely to be caused by the Bhala and Chaku. The learned Counsel for the appellant had vehemently contended that all these five witnesses who are so-called inmates of the house have stated that the intestine had come out; but the same is not mentioned by the Doctor while conducting the postmortem report. This contention is not found tenable in view of the testimony of P.W.13 Dr. Ashok Kumar Deo who has also stated that on 19 dissection of the abdominal cavity it was filled with the excessive blood, rupture of descending colon, rupture of left illiac artery and vein. Therefore, the statement of all these five eye-witnesses who are the rustic witness as they observed at the time of occurrence that the intestine had come out, same cannot be said to be in contradiction of medical evidence. As such the ocular evidence is also being corroborated with the medical evidence. 18. The learned Counsel for the appellants has also contended that role of giving stab wound has been attributed to Umesh Mandal. The only role of catching hold is given to Prem Chand Mandal and Nepali Mandal. They were empty handed. They had no intention in commission of the said offence. All these five witnesses have assigned the role of catching hold along with these two accused Prem Chand Mandal and Nepali Mandal to Usha Devi & Ketki Devi as well. Usha Devi was not charge-sheeted; while Ketki Devi has been acquitted. Therefore, the role of the two appellants Prem Chand Mandal and Nepali Mandal also becomes doubtful in implicating in commission of this offence. 18.1 From the F.I.R. version and also from the testimony of five witnesses P.W.1-Putul Devi, P.W.2-Rekha Devi, P.W.3-Pinky Devi, P.W.4-Bajrangi Kumar Mandal and P.W.5-Shankar Mandal it is proved that it was Umesh Mandal who had given the stab wound with the knife in the abdomen of deceased Arjun Mandal and other named accused in the F.I.R. have been 20 attributed role of catching hold and the I.O. did not find the role of Usha Mandal so she was exonerated for the allegations made against her and the charge-sheet was filed against the three Umesh Mandal, Nepali Mandal and Prem Chand Mandal & Ketki Devi as well. From the evidence on record, it is found though Prem Chand Mandal and Nepali Mandal both were the empty handed, yet they have actively participated in commission of the murder which was caused by Umesh Mandal by giving knife blow, while catching hold of the deceased at the place of occurrence. All these five witnesses have categorically stated that these two accused Prem Chand Mandal and Nepali Mandal had also caught hold of the deceased. If the Ketki Devi and Usha Devi both have been exonerated by the I.O. on exoneration of them it cannot be accepted that Prem Chand Mandal and Nepali Mandal have also been falsely implicated. 19. It is the settled law that in committing the offence in furtherance of common intention it is not necessary that all the accused persons should have inflicted injury or it is also not necessary that all the accused persons should be armed with the weapon. The common intention is to be inferred from the presence of the accused persons at the place of occurrence, their conduct, act done by them at the time of commission of offence. The common intention may arise at the spur of the moment by the act and conduct of the co-accused at the place of occurrence. In the case in hand, it 21 was Nepali Mandal who first of all came three hours ago from the commission of murder who had abused to the deceased and went away. Again, he came along with Prem Chand Mandal and Umesh Mandal. Though Nepali Mandal and Prem Chand Mandal both were empty handed, but they caught hold of the deceased and it was Umesh Mandal who was armed with the knife stabbed in the abdomen of deceased-Arjun Mandal. From the conduct, act and actual participation in commission of the offence shows that all these three accused persons had the common intention in commission of the murder. Therefore, for the act of Umesh Mandal who has given the stab wound, these two accused persons Prem Chand Mandal and Nepali Mandal who had also actively aided in commission of the offence by catching hold of the deceased are also equally liable for the offence of the murder of the deceased-Arjun Mandal. 19.1 The Hon’ble Apex Court held in Ramesh Singh vrs. State of A.P. (2004) 11 SCC 305 at para 16 as under: 16.……………………………….When these accused persons summoned the deceased to come out of the house, obviously they had some common intention which their second visit, timing of the visit and calling of the deceased indicates. Once the prosecution evidence tendered through PWs 1 to 3 is accepted, then it is clear that when A-2 and A-3 held the hands of the deceased, they had some intention in disabling the deceased. This inference is possible to be drawn because the appellants in their statement recorded under Section 313 CrPC did not give any explanation why they held the hands of the deceased which indicates that the appellants had the knowledge that A-1 was to assault the deceased. The fact that the appellants continued to hold the deceased all along without making any effort to prevent A-1 from further attacking, in our opinion, leads to an irresistible and an inescapable 22 conclusion that these accused persons also shared the common intention with A-1. In these circumstances, what was the intention of A-1 is clear from the nature of weapon used and the situs of the attack which were all in the area of chest, penetrating deep inside and which caused the death of the deceased. It is very difficult to accept the defence version that the fight either took place suddenly, or these appellants did not know that A-1 was carrying a knife, or that these appellants did not know by the nature of injuries inflicted by A-1, that he did intend to kill the deceased. At this stage, it may be useful to note that A-1 did not have any motive, apart from common intention to attack the deceased. In such circumstances if A-1 had decided to cause the injury and A-2 who had a direct motive had decided to hold the hands of the deceased with A-3, in our opinion, clearly indicates that there was a prior concert as to the attack on the deceased. We also notice that thereafter the accused persons had all left the place of incident together which also indicates the existence of a common intention. 19.2 The Hon’ble Apex Court held in Surinder Singh vrs. State of Punjab (2006) 13 SCC 533 at para 12 as under: Some accused persons were armed with deadly weapon. Two of them were not armed but they restricted moment of the deceased when there was quarrel. All the accused persons came together left the place of occurrence together. They have the common intention to cause the offence under Section 304 part II read with 34 I.P.C. 12. When the factual scenario is seen the application of Section 34 IPC appears to be inappropriate so far murder of the deceased is concerned. In addition, the appellants were not armed. But the evidence is clear that they restrained movement of the deceased when there was a quarrel. There is, however, no definite evidence that the common intention was murder. But the fact that two co-accused were armed with knife and lathi is of relevance and significance. They came together and left together. That being so, the conviction is altered applying the principle set out above. Appropriate conviction will be under Section 304 Part II IPC read with Section 34 IPC. Custodial sentence of seven years would meet the ends of justice. 23 19.3 The Hon’ble Apex Court held in State of Rajasthan vrs. Gurbachan Singh & Ors. 2022 LiveLaw S.C. 1028 at para 11: 11. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by inference from the facts proved. Constructive drawing intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention. that 20. The learned Counsel for the appellants has also submitted that the testimony of these so-called eye-witnesses is not corroborated with any independent witness. This contention is not found tenable because taking into consideration the time of occurrence which was 9 O’ clock and place of occurrence is the courtyard of the house of deceased, there was no presence of any independent witness. 21. The plea raised by the learned Counsel for the appellants that the weapon used in commission of the murder is not produced and same was not seized and was also not sent to F.S.L., also the blood-stained soil was also not sent to the F.S.L. 24 and the blood-stained Gamchha and under pant of the deceased were also not taken in custody and not sent to F.S.L., the same is fatal to prosecution. 21.1 It is the settled law that if the case is based on the ocular evidence, the non-production of the weapon or non-sending the same to the F.S.L. cannot be said fatal to the prosecution case, if the case is otherwise proved from the trustworthy testimony of the eye-witnesses. In the case in hand the prosecution case is well proved from the testimony of the eye-witness which is corroborated with the medical evidence. Therefore, non-production of the knife and non-sending the same to the F.S.L. also the non-sending the blood-stained cloths of the deceased cannot be said to be fatal to the prosecution case. 22.
Decision
In view of the above analysis of the evidence on record, we are of considered view that the impugned Judgment of Conviction and Sentence passed by the learned court-below needs no interference. Accordingly, the Cr. Appeals deserve to be dismissed. 23. These Cr. Appeals are dismissed. The impugned Judgment of Conviction and Sentence passed by the learned court-below is affirmed. 24. The appellant-Premchand Mandal (in Cr. Appeal (D.B.) No. 1329 of 2018) and appellant-Nepali Mandal (in Cr. Appeal (D.B.) No. 1410 of 2018) were on bail during the pendency of the appeal, their bail bonds are hereby cancelled. The Trial Court is 25 directed to ensure compliance by sending the appellants Premchand Mandal & Nepali Mandal to Jail to serve out the sentence. The appellant-Umesh Mandal in Cr. Appeal (D.B.) No. 1408 of 2018 is already in Jail, he will serve out the sentence. 25. Let the record of court-below be sent back along with the copy of the Judgment. 26. Pending I.A., if any, also stands disposed of. I agree (Subhash Chand, J.) (Ananda Sen, J.) Jharkhand High Court, Ranchi Dated the 02.07.2024 P.K.S./A.F.R. (Ananda Sen, J.) 26