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2001 DIGILAW 329 (PAT)

Battis Mandal v. State Of Bihar

2001-04-11

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The appellants have preferred this appeal against the judgment and order dated 28.6.1994/ 29.6.1994 passed by 5th Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 114/88 whereby the appellants have been convicted for the offence under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Battis Mandal and Vakil Sah have further been convicted for the offence under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. 2. The informant Babulal Mandal gave his fardbeyan on 18.9.1995 at about 2 p.m. at his village that at about 7 a.m. he was going to purchase a Lid. His father was also with him, who was going to Bahiyar to see the field. When they reached in front of the shop of Chotelal Sao, the appellants and two others came from the side of the shop of Chotelal Sah. Appellant Battis Mandal caught waist of his father. Appellant Vakil Sah put a scissor like lathi on his neck and pressed the same. His father fell down on the ground. Appellants Vakil Sah, Ganna Bhandari and Raj Kumar Sah began to press the lathies. Other appellants also assaulted him with lathies and smashed his chest and stomach. Battis Mandal assaulted his father with khantt. His father died there. His dead body was dragged by the appellants to the disputed field. Ramcharan Mandal, Gayatri Devi and other people of the village had seen the occurrence. The motive of the occurrence was litigation with Chotelal Sah, Vakil Sah and others for the land. 3. On the aforesaid fardbeyan a formal FIR was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted. The Court took cognizance on receipt of the charge-sheet and committed the case to the Court of Sessions for trial. The trial Court convicted the appellants, as indicated above, however, the trial Court acquitted Chotelal Sah and Bimla Devi. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case out of old enmity. 5. The prosecution in support of its case has examined 11 witnesses, out of whom, PW 1 proved the writing of the fardbeyan (Ext. 1). PW 2 proved the FIR (Ext. 2). PW 5 is a doctor who held post-mortem over the dead body. 5. The prosecution in support of its case has examined 11 witnesses, out of whom, PW 1 proved the writing of the fardbeyan (Ext. 1). PW 2 proved the FIR (Ext. 2). PW 5 is a doctor who held post-mortem over the dead body. PW 7 is a choukidar, who took the dead body for post-mortem. PW 8 is also a choukidar and has been tendered. PW 9 is a witness to the inquest. PW 10 is an Investigating Officer. PW 11 proved the signature over the inquest (Ext. 3). PWs 3 and 6 claimed to be the eye-witnesses to the occurrence. PW 4 is the informant and also claimed to have seen the occurrence. 6. PWs 3, 4 and 6 are the witnesses to the occurrence. PW 4, the informant, is the son of the deceased. The death of Kalicharan Mandal is not in dispute. Dispute is with regard to participation of the appellants. His evidence is that on the date of occurrence at about 7 a.m. he was going to purchase a Lid. His father was also with him. When they reached in front of the shop of Chotelal Sah, the appellants and two others came armed with lathies and khanties. Chotelal instigated to commit the murder. Appellant Battis Mandal caught waist of his father. Appellant Vakil Sah put a scissor like lathi on the neck of his father. The witness explained the weapon that two lathies were tied with pressure, ie. called scissor like lathi His father fell down. The appellants started assaulting him with their weapons. Appellants Battis Mandal, Ganga Sah and Raj Kumar Sah assaulted with Khanties: His father died due to assault. Battis and Vakil put rope round the neck and dragged him to the disputed land. Blood had fallen at the place of occurrence but Bimla Devi put water over the blood. Still some blood was there. The occurrence was witnessed by his mother (PW 6), Uncle (PW 3) and people of the village. The police came and recorded the fardbeyan. In the cross-examination this witness stated that he was reading in a school. His father was, doing the cultivation. His father was going to Bahiyar. His father told him that after purchase of Lid he would go to see the field. Police came at about 1 p.m. Blood was coming from the mouth and the leg. In the cross-examination this witness stated that he was reading in a school. His father was, doing the cultivation. His father was going to Bahiyar. His father told him that after purchase of Lid he would go to see the field. Police came at about 1 p.m. Blood was coming from the mouth and the leg. The dead body was sent for post-mortem. He denied the suggestion that he was not with his father and had not seen the occurrence. He said that he had disclosed about the occurrence to the choukidar before the police came. There was dispute for land with Chotelal Sah. 7. PW 3 is the younger brother of the deceased. At the relevant time he was cutting fodder in his house. He heard alarm raised by his elder brother and nephew, the informant. He went near the house of Narain Mandal and saw that 8 to 10 persons had surrounded his brother Kalicharan. They were assaulting him. Chotelal Sah was instigating to commit the murder. He named the appellants and two others as participants in the occurrence. Battis Mandal, Ganga Sah and Raj Kumar Sah had khanties in their hands and rest of the appellants except Vakil Mandal had lathies. Vakil had scissor like lathi Vakil and Raj Kumar Sah pressed the neck of his brother with scissor like lathi. Appellants assaulted with lathies and khanties. His brother died there. Appellants Battis Mandal and Vakil put rope on the neck and dragged the dead body to the disputed field. Blood had fallen at the place of occurrence. Bimla put water over the blood. In cross-examination the witness stated that his son Soso Mandal was made accused in a case of dacoity at the instance of the appellants. Ganesh Bhandari and Battis Mandal had deposed against him. Ganesh Bhandari, Diaesh Bhandari, Umesh Bhandari and Battis Mandal are related to each other. The blood had fallen where the dead body was kept. PW 8 had gone to the police station. Chotelal Sah was the teacher at the relevant time. Title Suit was going on with his brother for about 10-12 years. 8. PW 6 is the wife of the deceased. At the relevant time she was at her house. Her husband was going to see the crops in the field. Her son, the informant, asked him to purchase the Lid. Chotelal Sah was the teacher at the relevant time. Title Suit was going on with his brother for about 10-12 years. 8. PW 6 is the wife of the deceased. At the relevant time she was at her house. Her husband was going to see the crops in the field. Her son, the informant, asked him to purchase the Lid. Her husband and her son both had gone together. She heard alarm- She went to the place of occurrence and saw 10 to 12 persons assaulting her husband. Chotelal Sah was instigating to commit the murder. Vakil had scissor like lathi Raj Kumar and Ganga had khanties in their hands. Her husband died due to assault. The dead body of the deceased was dragged to the disputed field by Battis Mandal and Vakil Mandal. Blood had fallen at the place of occurrence. Litigation was going on between Chotelal Sah and the deceased. In cross-examination the witness stated about the enmity. The place of occurrence was at a distance of 10 steps from her house. She went to the Sarpanch and disclosed about the occurrence. The Sarpanch had written her statement. She did not do anything on that paper. The Sarpanch also did not do anything. The Sarpanch had sent choukidar to the police station. The witness stated that her husband had three brothers. Harangi Mandal was one of his brothers. There was litigation with Harangi. Gango had deposed in the said litigation against her husband. 9. On consideration of the evidence of the eye-witnesses it is evident that the evidence of the eye-witnesses is consistent on the material points, i.e. the place of occurrence, time of occurrence and manner of occurrence. They have categorically stated that in front of the shop of Chotelal, the crime was committed by the appellants. The witnesses were cross-examined at length but nothing cogent was found to doubt their testimony. The Doctor, who held post-mortem over the dead body has found 16 injuries on the person of the deceased. He found incised wounds, fracture of traches and hyoid bone in the neck, limbs broken and also lacerated wounds. The injuries found by the doctor corroborate the prosecution case. The doctor has found that injuries were ante-mortem, incised and stab wounds were caused by sharp cutting weapon may be khanti. Lacerated and bruises wounds were caused by hard and blunt substance like lathi. The injuries found by the doctor corroborate the prosecution case. The doctor has found that injuries were ante-mortem, incised and stab wounds were caused by sharp cutting weapon may be khanti. Lacerated and bruises wounds were caused by hard and blunt substance like lathi. The injuries on the neck could be caused by pressure by lathies. Cause of death was shook and haemorrhage. The time elapsed since death was 24-36 hours. 10. The Investigating Officer (PW 10) deposed that he heard rumours about the commission of murder. He went to the place of occurrence at about 2 p.m. He recorded the fardbeyon of PW 4. He inspected the place of occurrence. It is katchi road going towards the shop of Chotelal. He found trampling mark and blood at the place of occurrence. He also found sign of washing of blood by putting water but some blood was also found there. The house of the informant is situated at a distance of about 50 yards from the place of occurrence. He found dragging marks at the place of occurrence. He also seized blood from the place of occurrence. He recorded the statements of the witnesses including PWs 6 and 3. He sent the dead body for post-mortem. No person from the vicinity came forward to give his statement. In cross- examination the witness stated that he did not remember, who had given the information of the murder. The choukidar came after recording the fardbeyan. He had no knowledge whether any written report was given to Ratanganj Crime Centre with regard to the commission of murder. Thus, it is evident from the evidence of I.O. that his evidence also corroborates the place of occurrence and recording the fardbeyan at the relevant time. 11. Learned counsel for the appellants, however, contended that PWs 3, 4 and 6 are not the eye-witnesses to the occurrence which is evident from the evidence of PW 9, who had gone to the place of occurrence. PWs 6 and 3 came thereafter and as such there was no occasion to see the occurrence. PW 9 is the witness to the inquest. Inquest report was prepared in his presence. The witness in his evidence did not say when he reached the place of occurrence and whether PWs 3 and 6 had come at the place of occurrence for the first time in his presence. PW 9 is the witness to the inquest. Inquest report was prepared in his presence. The witness in his evidence did not say when he reached the place of occurrence and whether PWs 3 and 6 had come at the place of occurrence for the first time in his presence. In such a situation, it cannot be said that PWs 3 and 6 came for the first time at the place of occurrence after reaching PW 9. Thus, on consideration we find that the submission of the learned counsel for the appellants has no force at all. 12. Learned counsel for the appellants next contended that the Sarpanch had written the statement of PW 6 but the said document was not brought on the record and as such the prosecution case cannot be accepted. In this regard/it is pertinent to mention herein that PW 6 has stated in her evidence that she had gone to the Sarpanch. The Sarpanch had recorded her statement. She did not do anything on the written paper. The Sarpanch had also done nothing thereafter. The Sarpanch had sent the Choukidar to the police station. Therefore, it is evident that there is no evidence that the said written paper was sent to the police station. The investigating officer (PW 10) has categorically stated that he came to the place of occurrence on hearing rumour about the murder and recorded the fardbeyan of the informant. There is no other evidence on the record to indicate that any written report was sent to the police station. The witness (PW 6) herself has stated in her evidence that she neither put her signature over the paper nor it was sent to the police station. In such a situation non-production of such paper, in our opinion, will not affect the prosecution case. 13. Learned counsel for the appellants next contended that the witnesses are related to each other and no independent witness came to support the prosecution case and as such their evidence is fit to be discarded. In this regard it would be pertinent to mention herein that it is well settled rule of law that evidence of Mnimical witnesses or the related witnesses is not required to be thrown out rather their evidence has to be scrutinised with care and caution. It is admitted position that PW 3 is the younger brother of the deceased. In this regard it would be pertinent to mention herein that it is well settled rule of law that evidence of Mnimical witnesses or the related witnesses is not required to be thrown out rather their evidence has to be scrutinised with care and caution. It is admitted position that PW 3 is the younger brother of the deceased. PW 4 is son of the deceased and PW 6 is the wife of the deceased. We have considered their evidence with care and caution, as discussed above, their evidence appears to be trustworthy in such a situation their evidence cannot be thrown out merely because they are related to the deceased and as such the submission of the learned counsel for the appellants has no force at all. 14. Thus, on consideration we find no merit in this appeal. Accordingly this appeal is dismissed. Except Bhola Mandal, other appellants have been granted bail and as such their bail bonds are cancelled. They are directed to surrender before the Court below to serve out the remaining period of sentence.