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2001 DIGILAW 123 (PAT)

Umesh Mandal v. State Of Bihar

2001-02-12

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad and A.K.Sinha JJ. 1. The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The prosecution case is that Damodar Mandal gave his fardbeyan on 22.12.1985 at 5.30 P.M. that at about 4.30 P.M. he was coming from Larha Bahiyar with his cattle. When he reached near the house of Ganesh Mandal, appellant Umesh Mandal came abusing him and fired from behind which hit on his back due to which he fell down. On hearing sound of firing Ramroop Mandal, Kishan Mandal, Chakardhar Mandal and many others came and tied his injury with Gamchha. The motive of the occurrence was that Domi Mandal, Umesh Mandal and Kailu Mandal were grazing his Kalai crops in the night of Friday. He caught the buffaloes. Panchayati was held and a fine of Rs. 500/- was imposed. 3. On the aforesaid fardbeyan, formal first informant report was drawn. Investigation was taken up. The informant, however, died. On completion of investigation chargesheet was submitted against three persons. The court took cognizance and committed the case to the court of sessions for trial. The trial court acquitted Kailash Mandal @ Kailu Mandal and Doman Mandal from the charges levelled against them, however, convicted the appellant as indicated above. 4. The defence of the appellant was that he was innocent and was falsely implicated in the case out of enmity. 5. The prosecution in support of its case examined ten witnesses. P.W. 1, P.W. 2 and P.W. 6 claimed to be eye witnesses to the occurrence. P.W. 3, P.W. 7 and P.W. 8 have been tendered. P.W. 4 reached the place of occurrence after the occurrence. P.W. 5 came at the place of occurrence and saw the accused persons running away. P.W. 9 is a doctor, who held postmortem over the dead body. P.W. 10 has proved the first information report. 6. All the witnesses stated that firing was made from behind causing injury on the back of the deceased. The aforesaid aspect is falsified by the evidence of the doctor, P.W. 9, who held postmortem over the dead body. He stated that injury on the person of the deceased suggested that firing was made from front. 6. All the witnesses stated that firing was made from behind causing injury on the back of the deceased. The aforesaid aspect is falsified by the evidence of the doctor, P.W. 9, who held postmortem over the dead body. He stated that injury on the person of the deceased suggested that firing was made from front. He stated that he found injury on the stomach of the deceased which was wound of entry and also on the back which was wound of exit. The wound of entry was inverted and wound of exit was everted which falsifies the case of the prosecution that firing was made from behind which caused injury on the back. P.W. 9 further stated that on dissection lungs and hearts were decomposing. On tracing the track of the wound fire arm was found to have entered from injury no. 1 and had passed through the mesentry, stomach, right side of the liver and descending aorta and other blood vessels and touching 12th rib came out from the back via injury no. (ii). Liver was found ruptured. The injury found by P.W. 9 makes it clear that vital organ of the deceased was damaged. Liver was found ruptured. In such a situation, a person who received such injury would not be able to speak or make coherent statement but the prosecution has come with a case that the deceased himself gave fardbeyan before the police which appears to be absurd. Except P.W. 6 no one stated that the deceased had given statement before the police. P.W. 1 has stated that after receiving injury the deceased was taken at his house and his dead body was taken in the night. The medical evidence, as discussed above, does not support the oral evidence of prosecution, witnesses. The evidence indicates that Damodar died soon after the occurrence and he was not in a position to give statement/fardbeyan before the police. 7. The occurrence is alleged to have taken place at 4.30 P.M. The fardbeyan of Damodar Mandal, the injured, was recorded at about 5.30 P.M. He, however, died on the same day i.e. on 22.12.1985. P.W. 1 is wife of the deceased and P.W. 2 is mother of the deceased. They claimed to have seen the occurrence but have given different version of the occurrence. P.W. 1 is wife of the deceased and P.W. 2 is mother of the deceased. They claimed to have seen the occurrence but have given different version of the occurrence. In the fardbeyan it was stated that only the appellant came and fired from behind but P.W. 1 stated that Domi Mandal and Kailu Mandal surrounded the deceased and Umesh Mandal fired on the back causing injury to the deceased. P.W. 2 stated that Domi and Kailu gave order to kill on which the appellant fired from behind causing injury to the deceased. P.W. 1 and P.W. 2 did not say in their evidence that the deceased had given any statement before the police. P.W. 1 and P.W. 2 both were in their house. They stated that they came after hearing the sound of firing. P.W. 1 stated that 5-6 persons came after death of her husband. She went to the place of occurrence on hearing the sound of firing and found her husband lying on the ground. He did not talk to her. The dead body of her husband was taken in the night. The police came next day of the occurrence. P.W. 2 came after the death of her husband. She also stated about the motive of occurrence; the incident which took place a day before the occurrence. P.W. 2, the mother of the deceased, stated in her evidence that police came after two days of the occurrence and her statement was recorded after five days. Her son died while he was being taken to the hospital. The witness also stated about the motive of the occurrence that on the same day buffaloes of the accused persons were caught by the deceased in the morning and the occurrence took place in the evening which is quite different from the motive alleged in the first information report as well as stated in the evidence of P.W. 1. Neither P.W. 1 nor P.W. 2 has stated that the deceased had given statement before the police or his fardbeyan was recorded by the police. The evidence of the witnesses is also not consistent because of the fact that P.W. 1 stated that her husband fell down on the ground and he was taken for Panchayati but he died. Neither P.W. 1 nor P.W. 2 has stated that the deceased had given statement before the police or his fardbeyan was recorded by the police. The evidence of the witnesses is also not consistent because of the fact that P.W. 1 stated that her husband fell down on the ground and he was taken for Panchayati but he died. The dead body was taken in the night whereas P.W. 2 stated that while the deceased was being taken to the hospital he died. P.W. 1 stated that P.W. 2 reached the place of occurrence after the death of the deceased. Neither P.W. 1 nor P.W. 2 stated that the deceased was taken to the police station. Therefore, evidently the evidence of the witnesses is contradictory to each other. Moreover, both the witnesses do not appear to be eye witnesses to the occurrence as they were in their house and came out from the house after hearing the sound of firing. 8. P.W. 6 is father of the deceased. The witness stated that Domi, Kailu and Umesh killed the deceased but subsequently stated that Domi and Kailash surrounded the deceased and Umesh fired from behind and they ran away. He stated that he was 15 steps behind the deceased. The witness stated that wound on the person of the deceased was tied with Gamchha. He stated that the deceased was taken to the police station where his fardbeyan was recorded. The witness in cross examination stated that there was no witness to the fardbeyan. Domi and Kailu came from south and Umesh came from north. Suggestion was given to the witness that Damodar did not give any statement before the police which he denied. His attention was drawn to the statement made before the police that he had not stated before the police that the deceased was taken to the police station where his fardbeyan was recorded and he was at his house at the time of occurrence, which he denied. The evidence of the witness is inconsistent to the evidence of P.W. 1 and P.W. 2 on the relevant point such as taking of the deceased to the police station and recording of his fardbeyan at police station as except this witness no witness has stated in his/her evidence that the deceased was taken to police station where his fardbeyan was recorded. Participation of the accused persons is also not consistent to the first information report as in the first information report only participation of Umesh Mandal has been mentioned whereas this witness stated about three persons. The witness stated that all the three persons killed the deceased but subsequently stated that Umesh Mandal fired from behind causing injury on the person of the deceased. Thus, on consideration it is evident that his evidence does not inspire confidence. 9. It is a fact that for proving the case number of witnesses is not required. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of any fact. Therefore, the fact can be proved by a single witness. In this regard the evidence of P.W. 6 has already been discussed and we have come to a conclusion that his evidence does not inspire confidence. Moreover, there is no corroborative evidence of P.W. 6 which is necessary in such situation. It appears from the evidence of P.W. 6 that his attention was drawn to the statement made before the police with respect to material point but unfortunately investigating officer has not been examined and as such the defence case has been prejudiced. 10. Thus, we find that the prosecution has failed to establish its case beyond all reasonable doubts. Accordingly, the appeal is allowed. The judgment and order of conviction and sentence are hereby set aside. The appellant is directed to be released forthwith if not required in any other case.