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2001 DIGILAW 779 (PAT)

Mantoo Mandal v. State Of Bihar

2001-08-24

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment B.N.P.Singh, J. 1. Appellants suffered conviction under Section 302/ 149 of the Indian Penal Code (IPC) and were sentenced to suffer rigorous imprisonment for life. Appellant Chhatish Sharma was also convicted under Section 436, IPC, however, no separate sentence was awarded on that count. 2. Factual matrix, essential for disposal of this appeal, are that on 18.1.1987 while Indu Devi (P.W. 9), in the morning hours, was preparing tea for Prem Kumar Choudhary, who happened, to be her husband, Mantu Rajak, one of the appellants came and asked Prem Kumar Choudhary to get the field irrigated from the water of the canal. It was alleged that shortly thereafter, Prem Kumar Choudhary accompanied Mantu Rajak. However, hardly one hour had passed, she heard alarm being raised from Navtolia, about some people assaulting her husband. She thereafter took Binda Devi (P.W. 8), Sumitra Devi, Dilip Choudhary (P.W. 1) and Arvind Choudhary (P.W. 5) in her company and proceeded for Nawtolia where she allegedly noticed Mantu Mandal, Mantu Rajak, Pandey Rajak, Amrit Mandal, Ramnath Mandal, Kailu Sharma, Chhatis Sharma, Sikander Yadav and Fukuni Baitha along with other persons assaulting her husband with wooden substance and also khanti. They threatened her and shortly thereafter, they dragged body of Prem Kumar Choudhary to the eastern room of the house of Mantu Mandal and in the process of dragging, they continued to assault him. After alarms were raised by her, Vidya Thakur, Ugrasen Chand Thakur, Bhushan Thakur and a large number of persons happened to come there who witnessed the incident. It was also alleged that after the appellants dragged the body of Prem Kumar Choudhary to the house of Mantu Mandal, took out their house belongings from the houses, pursuant to which Chhatish Sharma one of the appellants, set the house of Mantu Mandal on fire as a consequence of which neighbouring houses and bundles of paddy, caught fire and the appellants shortly thereafter took to their heels. The wife of the deceased with the aid of some persons, removed dead body from the room and kept in the adjacent field and with these narrations, fardbeyan of Indu Devi was recorded by the Police which forms basis of the first information report registered at Bank Police Station. The wife of the deceased with the aid of some persons, removed dead body from the room and kept in the adjacent field and with these narrations, fardbeyan of Indu Devi was recorded by the Police which forms basis of the first information report registered at Bank Police Station. Investigation commenced and in the process of investigation, the Investigating Officer took necessary steps for recording statement of witnesses under Section 161 of the Code of Criminal Procedure, prepared inquest report over the dead body of the deceased, sent it to the mortuary for post mortem examination, seized the incriminating objects from the house of Mantu Mandal and on conclusion of investigation, laid charge sheet before Court. 3. In the eventual trial, prosecution examined altogether 11 witnesses including the doctor, Police Officer, and also those who claimed to be ocular witnesses, and the trial Court placing implicit reliance on the testimony of witnesses, rendered verdict of guilt against the appellants and sentenced them in the manner stated above. 4. Now adverting to the evidences placed on record, Indu Devi, who happens to be the wife of the deceased and also the person who set Police in motion, had reiterated her early version which she rendered before the Police about Mantu Rajak having taken her husband in his company on the protext of irrigating the lands from water of canal when her husband was subjected to assault by the appellants and was dragged to the house of Mantu Mandal. She would state reiterating her early version about Chhatish Sharma setting the house of Mantu Mandal on fire which extended to the neighbouring houses causing damage to the house-belongings. Dilip Kumar Choudhary (P.W. 1) stated to have met Indu Devi when she was raising alarm who was stating about her husband being assaulted by some persons. He stated to have accompanied her along with Binda Divi, Sumitra Devi, Bharat Bhushan Thakur, Arvind Thakur, and Ugresh Thakur and noticed the appellants assaulting Prem Kumar Choudhary with wooden substance and khanti He would also state about Chhatish Sharma dragging the body of Prem Kumar Choudhary to the housed of Mantu Mandal where he was allegedly confined. He would also saddle Chhatish Sharma with allegation of setting house of Mantu Mandal on fire when other houses also, caught fire and the house belongings were damaged. He would also saddle Chhatish Sharma with allegation of setting house of Mantu Mandal on fire when other houses also, caught fire and the house belongings were damaged. After the appellants had retired from the place of occurrence, dead body of Prem Kumar Choudhary was removed from room and was kept in the field of the deceased. The evidence of Ugrasen Thakur (P.W. 2) was also in similar terms about noticing the appellants assaulting the deceased and Chhatish Sharma dragging the dead body of the deceased to the house of Mantu Mandal, pursuant to which the house of Mantu Mandal was also set on fire by Chhatish Sharma. The dead body of Prem Kumar Choudhary was taken out from the room to be kept in the adjacent field. Bhushan Thakur (P.W. 3) stated to have noticed the wife of the deceased raising alarm and when he accompanied her, he noticed the appellants assaulting the deceased. His evidence about the appellants dragging the dead body of the deceased to the house of Mantu Mandal and Chhatish Sharma setting the house of Mantu Mandal on fire was in similar terms as that of other witnesses. Bhushan Thakur (P.W. 4) also stated to have followed the wife of the deceased when he noticed the appellants assaulting the deceased, pursuant to which they dragged the dead body of Prem Kumar Choudhary to the house of Manto Mandal and also that, house of Mantu Mandal was set on fire. Similar had been the evidence of Arvind Choudhary (P.W. 5) about he having followed the wife of deceased to village Nawtolia when he noticed the appellants assaulting the deceased taking him to the house of Mantu Mandal and Chhatish Sharma setting the house on fire. Manoj Kumar Choudhary (P,W. 7) stated to have rushed to the place of occurrence where he noticed Prem Kumar Choudhary dead and he learnt about the incident from those who were available there. The Police Officer came and seized part-burnt cots and also an axe and garassa for which a seizure memo was prepared upon which he appended his signature. Binda Devi (P.W. 8) stated to have informed Indu Devi about husband of the latter being assaulted by some persons in Nawtolia. The Police Officer came and seized part-burnt cots and also an axe and garassa for which a seizure memo was prepared upon which he appended his signature. Binda Devi (P.W. 8) stated to have informed Indu Devi about husband of the latter being assaulted by some persons in Nawtolia. She gave her company to the wife of the deceased and when reached Nawtolia, noticed the appellants assaulting Prem Kumar Choudhary with wooden substance and khanti She would state that shortly thereafter the assailants dragged the dead body of the deceased to the house of Mantu Mandal which was set on fire by Chhatish Sharma. Evidence of Mahendra Prasad Gupta (P.W. 10) who was the Police Officer was formal in nature and he brought on record, the fardbeyan of Indu Devi and also the first information report. He admitted to have not contributed to the investigation of the case. Jang Bahadur Singh (P.W. 11) stated to have carried out investigation of the case and recorded statement of witnesses, inspected the place of occurrence which was house of Mantu Mandal. The house-belongings were found scattered and there were blood stains on the wall of the house. He also noticed a wooden substance and khanti in the house. He noticed part-burnt cot kept in the room. There was copious blood at a distance of about ten yards in the field. The houses of Bangri Dhobi, Mantu Mandal, Amrit Mandal and Sikander Yadav were found burnt to ashes. He collected blood stained earth and also made seizure of an axe and garassa for which seizure memo was prepared. Inquest report of the dead body was prepared and the dead body was sent to mortuary for post mortem report. Dr. Jagannath Prasad (P.W. 6) stated to have carried autopsy over the dead body of the deceased when he noticed multiple lacerated wounds and abrasions on the dead body. These injuries, in the estimation of the doctor were caused by hard and blunt object such as lathi, dabi and handle portion of khanti. Death in the opinion of the doctor was caused by shock and hemorrhage due to anti mortem injuries noticed on the person of the deceased, particularly, injury Nos. 1 and 2. The defence too examined one witness to counter the allegation attributed to the appellants. 5. Death in the opinion of the doctor was caused by shock and hemorrhage due to anti mortem injuries noticed on the person of the deceased, particularly, injury Nos. 1 and 2. The defence too examined one witness to counter the allegation attributed to the appellants. 5. The findings recorded by the trial Court were sought to be assailed by the learned counsel for the appellants on premises that though the blood stains were collected from the place of occurrence by the I.O., as there is no finding of the chemical examiner, no conclusion can possibly be drawn about blood found at the place of occurrence to be human blood. Contentions were raised that it is admitted case of the prosecution that the place of occurrence situates in village Nautolia and also that distance of village Bhutkhundi was about 1/2 km. and it is quite unlikely that no witness from village Nautolia would come to the place of occurrence even though place of occurrence is said to be situated in the same village. It is urged that all the witnesses examined by the prosecution hail from village Bhutkhundi who appear to be interested in the cause of the prosecution in view of persisting hostility between the parties and in this backdrop, it is sought to be urged that only partisan and interested witnesses were examined by the State to the total exclusion of those who were independent and competent witnesses. Learned counsel for the appellants would draw our attention to the discrepant statements of the witnesses and it is urged that if their evidences are taken into consideration on their face value, that would render them to be not ocular witnesses of the occurrence and the last argument canvassed on behalf of the appellants was that as hostility was persisting between the parties since long and the deceased had been insisting on the appellants to evict them from the lands on which they were settled by his father, it was more probable that the deceased himself had set their houses on fire to get them evicted, when he sustained injuries at the hands of the villagers who resisted his action. 6. Deceased Prem Kumar Choudhary died homicidal death, perhaps, could not be seriously challenged in view of the evidence of the witnesses and also finding recorded by the doctor who noticed multiple injuries on his person. 6. Deceased Prem Kumar Choudhary died homicidal death, perhaps, could not be seriously challenged in view of the evidence of the witnesses and also finding recorded by the doctor who noticed multiple injuries on his person. Hence, the core question for consideration before the Court was as to whether the prosecution had led credible evidence to sustain the conviction of the appellants. Now adverting to the evidence of the witnesses, who claim to be ocular, one would come across the evidence of P.W. 2 who narrated in positive terms before the Court that by the time he happened to reach the place of occurrence, Prem Kumar Choudhary was dead. Our attenti on was drawn to the statement of P.W. 4 also who would state that the wife of the deceased was raising alarm that her husband had been killed. The evidence of P.W. 5 before the trial Court was that when he along with other persons visited the place of occurrence, he noticed Prem Kumar Choudhary unconscious and the appellants standing there. Along with those who accompanied him, he stated the names of Vidya Thakur, Dilip Choudhary and Binda Devi. Now adverting to the evidence of P.W. 8, he would state that when he along with others happened to reach the place of occurrence, at the first sight, he noticed Prem Kumar Choudhary dashed to the ground unconscious and the vilagers were raising alarm of Prem Kumar Choudhary having been killed. If further statement made by the witness was taken to be true on the face value that would suggest that hardly they had reached half of the distance in reaching the place of occurrence, they noticed the appellants making good their escape. Now the prosecution is left with the evidence of Indu Devi (P.W. 9) who narrated before the Court that after her husband was confined in the room, she raised alarm when Vidya Thakur and others came. She stated to have noticed her husband rolling in pains, on the ground and there were 10-12 persons whom she could not identify. To crown all, her further evidence was that before the arrival of the I.O. when Vidya Thakur, Ugres Thakur, Bhushan Thakur Dilip Choudhary, and Arvind happended to be at the place of occurrence, they made inquiry from her as to who were the assailants of her husband and she accordingly responded to them. To crown all, her further evidence was that before the arrival of the I.O. when Vidya Thakur, Ugres Thakur, Bhushan Thakur Dilip Choudhary, and Arvind happended to be at the place of occurrence, they made inquiry from her as to who were the assailants of her husband and she accordingly responded to them. If evidence of these witnesses are taken conjointly, it would appear that these witnesses claimed to be ocular to the assault made on the deceased. These versions will entirely exclude their presence as an ocular witness and only irresistible conclusion that can be drawn in the backdrop of the statements made by these witnesses would be that they happened to reach the place of occurrence after the deceased had been done to death and in this backdrop the possibility of their being ocular witness is completely ruled out. Apart from the infirmity that has crept in the evidence of these witnesses, there are other infirmities which cannot remain unnoticed, as P.W. 9 was narrating before the Court about having reached the place of occurrence in the company of Vidya Thakur, Ugresh Thakur and Bhushan Thakur, but the assertions made by these witnesses were seriously challenged by the defence there being no such narration made before the Police and the I.O. too would negative the contentions raised on behalf of the witnesses about Vidya, Ugres and Bhushan having accompanied P.W. 9. Attention of P.W. 5 was also drawn by the defence about Chhatish setting the house on fire and the witnesses admitted in positive terms about having not rendered such statements before the police and hence statement of this witness appears to be an embellishment, introduced in the statement which he made before the Police. The attention of P.W. 4 was drawn by the defence about he having made similar statement before the Police about Mantu Mandal dragging the dead body of Prem Kumar Choudhary to his house and the I.O. would negative the contention raised on behalf of the State about P.W. 4 making similar statement before the police. 7. Apart from the assault allegedly made by the appellants, other part of the prosecution story is also about the appellants dragging the dead body of Prem Kumar Choudhary to the house of Mantu Mandal and setting the house on fire. The evidence of prosecution witnesses aiso suffers from contradictions on this count also. 7. Apart from the assault allegedly made by the appellants, other part of the prosecution story is also about the appellants dragging the dead body of Prem Kumar Choudhary to the house of Mantu Mandal and setting the house on fire. The evidence of prosecution witnesses aiso suffers from contradictions on this count also. As will appear from the evidences of PWs 1, 2 and 8, it was Chhatish Sharma who dragged the dead body of the deceased to the house of Mantu Mandal. Discrepant statements were rendered by PWs 3 and 9 who would state that all the appellants dragged the dead body to the house of Mantu Mandal. If the evidence of PW 4 was taken into consideration on this score, it was only Mantu and Chhatish Sharma who dragged the dead body to the house and lastly, if the evidence of PW 5 was taken into consideration, it was Mantu alone who dragged the dead body to his house. 8. Now coming to the other part of the prosecution story about the house being set on fire, thrust of the prosecution case was that it was Chhatis Sharma who set the house of Mantu Mandal on fire when neighbouring houses caught fire and the houses suffered extensive damage. Coming to the evidence of PW 4, only a small room adjacent to the house of Mantu was set on fire. Evidence of PWs 5 and 8 was that dwelling house of Mantu was set on fire and if evidence of PW 9 was taken to be true on face value, it was only house of Bangri Dhobi which was set on fire. PW 5 would admit in positive terms that he did not notice as to who was the person who set the houses on fire. 9. Now coming to the objective findings of the I.O. which was recorded during investigation, he noticed only blood stains on the wall of the house of Mantu Mandal and only a part burnt cot was noticed by him and there was copious blood inside the room. Some bundles of paddy were also found burnt and it was the house of Bangri Dhobi, Mantu Mandal, Amrit Mandal, Sikandar Yadav which were reduced to ashes due to arson. Some bundles of paddy were also found burnt and it was the house of Bangri Dhobi, Mantu Mandal, Amrit Mandal, Sikandar Yadav which were reduced to ashes due to arson. Though the dead body of Prem Kumar was shown to have been dragged to the house of Mantu Mandal from the field, and assailants were allegedly assaulting him and also that there had been evidence of witnesses that blood oozing out from the wound continued to drop to the house of Mantu Mandal, the I.O. did not record positive finding about there being blood stains right from the field where Prem Kumar Choudhary was assaulted to the house of Mantu Mandal where he was dragged by the assailants. Though the I.O. stated to have noticed wooden substance and khanti in the room of Mantu Mandal which is said to be the instruments for assaulting the deceased, it is curious to find that these instruments which were incriminating were never seized by the I.O. 10. The genesis of the prosecution case was that after the wife of the deceased was preparing tea for her husband, it was Mantu Razak who took him in his company for irrigating the land, pursuant to which the deceased was subjected to assault who eventually succumbed to the injuries but barring the solitary evidence of the wife of the deceased, there was no evidence of any other witness on this score. Now coming to the element of hostility said to be persisting between the parties, the matter to be examined on this score is the evidence of P.W. 1 which was that the appellants were the settlees of the land which belonged to the father of the deceased for working in his field. The appellants had, however, left the work for which Prem Kumar Choudhary was insisting on them for working in the field else they would be evicted from houses. The evidence of P.W. 2 on this score was that the appellants were settled on the land by the father of the deceased and as the appellants were not working in the field, there had been dispute between the parties since about last one year and Prem Kumar Choudhary wanted these appellants to be evicted from the house. The evidence of P.W. 2 on this score was that the appellants were settled on the land by the father of the deceased and as the appellants were not working in the field, there had been dispute between the parties since about last one year and Prem Kumar Choudhary wanted these appellants to be evicted from the house. Similar had been the evidence of P.W. 3 also, about the appellants residing on the lands of the father of the deceased since last 8-10 years for working in his field P.W. 4 would state that Prem Kumar Choudhary was insisting on the appellants to vacate his land, for which the appellants were not agreeable. The evidence of P.W. 9 was that the appellants were working in the field of the father-in-law and a dispute had also arisen for division of the share of the crop or the lands. Though story propounded by the prosecution was that Mantu dragged Prem Kumar Choudhary to his house and confined in his room, this part of the prosecution case was against the normal conduct of the wrong doer, as no one is expected to create evidence which would operate adverse to him. The I.O. found blood stains inside the room and it seems that simply to justify the blood stains in the room, the story of dragging the dead body to the house of Mantu Mandal was introduced in the prosecution case. The factum of hostillity persisting between the parties was writ large in the evidence of the witnesses. The statement rendered by the witnesses would unerringly suggest that while Prem Kumar Choudhary was insisting on the appellants for eviction from the land on account of they having abandoned the work in his field, the appellants were not agreeable to vacate the land and viewed from another angle, the possibility of Prem Kumar Choudhary setting the house of some of the appellants on fire to get them evicted from the land appears to be more probable than the story propounded by the prosecution and it is not unlikely that villagers while resisting the action of Prem Kumar Choudhary, which is also the case of the defence, eliminated him. That apart, presence of the dead body of Prem Kumar Choudhary in the house of Mantu Mandal was strong evidence suggesting unerringly that he visited the house of the appellants where he was eliminated and hence on consideration of evidence placed on the record and regard being had to the contentions raised on behalf of the defence, one cannot help feeling that prosecution has miserably failed to bring home charges against the appellants and hence, in our considered view, the appellants are given benefit of doubt and are acquitted of the charges brought against them. This appeal is accordingly allowed. Appellant Fakuni Baitha alias Fakuni Rajak, who is shown to be in custody, is directed to be released forthwith, if not wanted in any other case. Rest of the appellants are discharged from the liability of their bail bonds. R.N.Prasad, J. 11 I agree.