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2002 DIGILAW 704 (PAT)

Yadunandan Mandal v. State Of Bihar

2002-07-04

BRAJ NANDAN PRASAD SINGH, P.K.SINHA

body2002
Judgment B.N.P.SINGH, J. 1. Though the appellants along with Shyamdeo Jha were put on trial in Sessions Trial No. 311 of 1983, while the latter was given benefit of doubt, the appellants alone suffered conviction under S. 364/34 of the Indian Penal Code (IPC) and were sentenced to rigorous imprisonment for life. 2. The factual matrix - while Gauri Kant Jha and Aditya Nath Jha, both deceased, were at the door of the house of Narendra Kumar Jha, it was alleged that Diwakar Mandal came and persuaded them to accompany him to Jamalpur, and as Gauri Kant Jha and Aditya Nath Jha had to go to Jamalpur, they left village on a bicycle in the company of Diwakar Mandal at about 1.45 p.m. shortly thereafter, Bhola Kant Jha informed Narendra Kumar Jha that he had witnessed Diwakar Mandal, Yadunandan Mandal and Ganeshi Mandal forcibly taking Gauri Kant Jha and Aditya Nath Jha with them along with two unidentified persons, all of whom had gun and arms belt with them. Similar informations were given to Narendra Kumar Jha also by Yognendra Jha, and it is alleged that shortly thereafter, the nearest Police Station was informed which started combing operation into the forest for recovery of the victims but there was neither trace of the victim nor of the criminals. 3. Prosecution was launched at Sonbarsa Police Station Out Post by submission of a written report on behest of Narendra Kumar Jha, pursuant to which investigation commenced, on drawal of the first information report, at Bhipur Police Station. During usual investigation, the Police visited place of occurrence, recorded statement of witnesses, made hectic searches to trace out the victims and eventually noticed pairs of sandals and shoes of the deceased, blood marks and also marks of dragging on the bed of river Ganges. Even the dead bodies of Gauri Kant Jha and Aditya Nath Jha too were found floating in the water of the river for which a seizure was made by the Police. The dead bodies were sent to mortuary for post mortem examination and on receipt of the report, and on conclusion of investigation, Police laid charge sheet before the Court. Even the dead bodies of Gauri Kant Jha and Aditya Nath Jha too were found floating in the water of the river for which a seizure was made by the Police. The dead bodies were sent to mortuary for post mortem examination and on receipt of the report, and on conclusion of investigation, Police laid charge sheet before the Court. In the eventual trial that commenced against the appellants, the State examined altogether four witnesses including Narendra Kumar Jha (P.W. 2), who set the Police in motion, two persons who claimed to be the ocular witnesses to the abduction of Gauri Kant Jha and Aditya Nath Jha and also the doctor who held autopsy over the dead bodies of the deceased. 4. The defence of the appellants was that as Yadunandan Mandal had been elected Mukhiya of the Gram Panchayat despite strong resistance by the members of the prosecution party, he was sought to be falsely implicated on strength of the instant Police case instituted at behest of Narendra Kumar Jha. The motive assigned behind gruesome killing of both the persons was that as Gauri Kant Jha was a witness in the case under S. 396 IPC against the appellants, he was eliminated by the appellants for escaping from the rigours of punishment. Yadunandan Mandal and Diwakar Mandal also pleaded alibi ostensibly to rule out possibility of their physical presence and also their participation in the commission of the offence. The defence too examined as many as six witnesses and had outnumbered the State. The trial court, however, on consideration of evidence of the prosecution witnesses, all of whom were eye witnesses to the abduction of Gauri Kant Jha and Aditya nath Jha, while rejecting the plea of innocence of the appellants, recorded verdict of guilt under S. 364/34 IPC against Yadunandan Mandal, Ganesh Mandal and Diwakar Mandal, finding Shyamdeo Jha not guilty of the charges. Though the appellants stood charged also under Sec. 302/34 IPC, and 379/34 IPC, they were not found guilty on these counts. 5. Though narrations made by the prosecution witnesses and those who were examined on behalf of the appellants have been fairly spelt out in the judgment of the Court below, we consider it proper to discuss them with brevity for proper appreciation of contentions that were raised at Bar making comment on credibility of these witnesses. 5. Though narrations made by the prosecution witnesses and those who were examined on behalf of the appellants have been fairly spelt out in the judgment of the Court below, we consider it proper to discuss them with brevity for proper appreciation of contentions that were raised at Bar making comment on credibility of these witnesses. To begin with the evidence of Narendra Kumar Jha, we have noticed him reiterating his early version which he rendered before the Police about Diwakar Mandal having taken Aditya Nath Jha and Gauri Kant Jha in his company from the door of his house on pretext of accompanying to Jamalpur and as both had to go to Munger, they left village in the company of said Diwakar Mandal. The witness would state that shortly thereafter, Bhola Nath Jha informed him that he had witnessed the appellants and two other unidentified persons forcibly taking Aditya Nath Jha and Gauri Kant Jha towards Shahabad. Similar informations were given to him also by Shyma Kant Jha and Jogendra Jha. Shortly after receipt of information about abduction of both Gauri Kant Jha and Aditya Nath Jha, the witness would state to have approached the Police Officer at Sonbarsa Police Out post, who left the Police Station for combing operation in his company. On that day, there was no trace of the victims. On the following day shoes and sandles of the victims were found on the bed of the river and also that there were marks of blood and also dragging. The Police Officer also noticed dead bodies of Gauri Kant Jha and Aditya Nath Jha floating on the water of river. Wads of guns were also noticed for which a seizure memo was prepared by the Police. As for motive behind the gruesome killing of Gauri Kant Jha and Aditya Nath Jha, the witness would state that since Gauri Kant Jha was a witness in a case under S. 396 IPC against the appellants, he had to pay heavy price for being a witness. The witness would state to have submitted written report to the Police to launch prosecution against the appellants. 6. The witness would state to have submitted written report to the Police to launch prosecution against the appellants. 6. Now coming to the evidence of Yogendra Jha (P.W.1), we find him narrating before the trial court that on 1/11/1982, while he was coming from Gangapur, he noticed appellants and two unidentified persons forcibly taking Gauri Kant Jha and Aditya Nath Jha in their company towards Shahabad diara. The witness would state that while Diwakar Mandal was holding gun in one hand, he caught hold of Gauri Kant Jha by other hand. About Yadunandan Mandal, the witness would state that he too was holding gun and had caught hold of Aditya Nath Jha. About Ganeshi Mandal, the witness would state that while he held a pistol with him, unidentified miscreants carried garasa with them. When he wanted to question the appellants for taking Gauri Kant Jha and Aditya Nath Jha in their company, he was threatened to be killed. the witness would state to have informed Narendra Jha about the abduction of the two persons who went to Sonabarsa Police Outpost and informed the Police about the incident. The following day the dead bodies of Gauri Kant Jha and Adityanath Jha were found in Shahabad diara and sandals and shoes of the deceased and also dragging marks and also marks of blood were noticed on the bed of river Ganges. The other witness examined by the State was Bholakant Jha (P. W. 3) and he too made similar narrations about incident, stating inter alia that on 1st of November, 1982, while he was coming from Akbarnagar, he witnessed appellants and two unidentified miscreants, one of whom was identified by him during the test identification parade as Shyamdeo Jha, forcibly taking Gauri Kant Jha and Aditya Nath Jha towards Shahabad. The witness would allege that while Yadunandan Mandal had caught hold of Gauri Kant Jha, it was Diwakar Mandal, who had caught hold of Aditya Nath Jha. All the three appellants, besides arms, were also holding arms belt with them. Those who could not be identified had sharp edged weapons with them. About Ganesh Mandal, the witness would state that he had lathi with him. All the three appellants, besides arms, were also holding arms belt with them. Those who could not be identified had sharp edged weapons with them. About Ganesh Mandal, the witness would state that he had lathi with him. He stated to have informed Naredura Kumar Jha, brother of Gauri Kant Jha, who shortly visited the Police Outpost, pursuant to which while hectic searches were made to trace out the victims, dead bodies of both the deceased were identified during the post mortem examination. 7. Dr. Nagendra Narain Bhagat (P.W. 4) who stated to have held autopsy over the dead body of Aditya Nath Jha, noticed as many as six numbers of incised wounds and also simple stab wounds on different parts of his person. The doctor stated to have noticed lacerated wounds and also abrasions on the deceased. The injuries, which were in the nature of incised wounds, in the opinion of the doctor, were caused by sharp edged weapon like garassa, and the stab wounds were caused by sharp edged weapon like chhura. The death in the opinion of the doctor was caused due to these injuries within 36-48 hours of the time of post mortem examination. On the same day, the doctor stated to have held post mortem examination on the dead body of Gauri Kant Jha also on whom there was wound caused by firearm with the wound of entry and exit, and besides, there were four other injuries what were punctured wounds, lacerated wounds and also abrasions. All the injuries in the opinion of the doctor were ante mortem and while injury nos. 1 and 2 were caused by fire arms, injury No.3 was caused by sharp pointed weapon. About injury Nos. 4, 5 and 6, the doctor would state that these injuries were caused by the hard and blunt substance. Cause of death in the opinion of the doctor was result of these injuries and death had happened within 36-48 hours of the time of the post mortem examination. This is all the evidence that has been adduced on behalf of the State. 8. As has been stated, the defence had outnumbered the State in examination of the witnesses since as many as six witnesses were examined to counter the allegations attributed to the appellants, and some of whom had also pleaded alibi of the appellants. This is all the evidence that has been adduced on behalf of the State. 8. As has been stated, the defence had outnumbered the State in examination of the witnesses since as many as six witnesses were examined to counter the allegations attributed to the appellants, and some of whom had also pleaded alibi of the appellants. A brief narration of the evidence of the defence witnesses is being made simply to appreciate the issue that was sought to be raised on behalf of the appellants, with the aid of the defence witnesses. Brahm Mandal (D. W. 1) was Mukhiya of Shahabad Panchayat. He stated to have met Jadunandan Mandal in Bhipur Block on 1/11/1982, who had come to participate for settlement of a fair in his favour. Gopi Krishna Mandal (D. W. 2) was Up-Sarpanch of Baikunthpur Gram Panchayat. The witness would state that on 1/11/1982, Diwakar Mandal, who had instituted a case in the Gram Kutcherry against Lakhan Lal was present during entire proceeding that was transacted in the Gram Kutcherry that day, and even a decision was rendered in the said proceeding by the punchas. Shri Shiv Narain Mandal (D. W. 3) was a Punch of Baikunth Gram Panchayat. This witness would state that on 1/11/1982, Diwakar Mandal was present in the judicial proceeding pending before the Gram Kutcherry. Shri Jata Shankar Upadhyaya (D. W.4) who was the Circle Officer, Bihpur, would state that on 1/11/1982, a petition was put before him which allegedly bore signature of Jadunandan Mandal. Rajendra Mandal (D. W. 5) would make similar narration about presence of Diwakar Mandal in the Gram Kutcherry on 1/11/1982. Shri Banarsi Chunihara (D. W. 6) was the Head Clerk in Bhipur Anchal. He stated without reference to any date about filing of one application by Yadunandan Mandal, Mukhiya. This is all the evidence that has been adduced on behalf of the appellants. 9. Contentions are raised on behalf of the appellants that though Narendra Kumar Jha (P.W.2), stated to have been informed on by P. Ws. 1 and 3 about abduction of Aditya Nath Jha and Gauri Kant Jha, pursuant to which he rushed to Sonbarsa out post without loss of time and rendered narration of incident to the Police Officer, there has been no evidence on the record about such oral narration made by the witness having been reduced in writing by the Police Officer. 1 and 3 about abduction of Aditya Nath Jha and Gauri Kant Jha, pursuant to which he rushed to Sonbarsa out post without loss of time and rendered narration of incident to the Police Officer, there has been no evidence on the record about such oral narration made by the witness having been reduced in writing by the Police Officer. In quick succession, it is urged that since first information report was shown to have been drawn up at 10 p.m. on 2-11-1982 the delay remained unexplained by the State and that has introduced element of suspicion in the prosecution case casting serious doubt on its genuineness. It is urged that though Narendra Kumar Jha would state to have submitted a written report with the Police, strangely it did not bear the date on which it was placed before the Police Officer. 10. We have noticed that all these contentions which are being raised here, had been agitated before the Court below also which had taken pains to make perusal of the Police case diary which would eloquently suggest that shortly after receipt of information, the Officer incharge, Sonbarsa Police Out post, had recorded station diary entry No. 111 dated 1/11/1982 and in that view of the matter, the court below rightly came to conclusion that neither there was belated action of the prosecution nor there was concealment or suppression of the material facts before the Police which may warrant serious infirmity, and as such we endorse the findings recorded by the court below on this score. True it is that the Police case diary cannot be used as evidence but as enjoined under S. 172 of the Code of Criminal Procedure, it can be taken into consideration for the aid in course of inquiry and trial. The Court below on perusal of the station diary, recorded by the Police Officer had noticed that the said information was reduced to writing about abduction of Gauri Kant Jha and Aditya Nath Jha by the appellants, and since written report itself had been given to the Police in the night of 1/11/1982, pursuant to which station diary entry was recorded, drawal of the first information report on the following day was not unusual. This fact cannot be lost sight of that Bihpur Police Station is at a distance of 25 Kms from the place of occurrence village and in that view of the matter also the prosecution cannot be attributed to have launched the prosecution belatedly. There is one redeeming feature in the prosecution case, as even in the earliest version, complicity of the appellants had been disclosed by Narendra Kumar Jha (P. W.2) which too rules out the possibility of concoction and embellishment in the prosecution version. 11. Other contention raised at Bar on behalf of the appellants was that the factum of submission of the written report of Narendra Kumar Jha (P.W. 2) on 1/11/1982 would be belied from assertions made by P.W.1, who would state before the Court below that while they had gone in the company of the Police Officer, who had carried out combing operation, they stayed in the night of 1/11/1982 in Shahpur diara and on strength of such narration made by the witness, learned counsel would urge that in that view of the matter, submission of written report in the night of 1/11/1982 at the Police Station would be completely ruled out and we find that on this score too, the court below had taken pains and had come to conclusion that since the Police Officer had returned in the same night, to the Police Station, there was every possibility of the written report being submitted by Narendra Kumar Jha (P.W.2) on 1/11/1982. The consistency transpiring in the testimony of P.Ws.1 and 2 about the time when they returned to village has rightly been considered to be error in the memory of the witnesses due to lapse of time and on this score, we find that no discount can be given to the appellants. 12. The other contentions raised at Bar on behalf of the appellants was that evidence of the prosecution witnesses suffer major contradiction which would render them unworthy of credence and it is accordingly urged that while P.W. 1 would state before the Court below that it was Diwakar Mandal who had caught hold of Gauri Kant Jha, P.W. 3 would state that it was Yadunandan Mandal who was holding Gauri Kant Jha with him. It is urged that about Aditya Nath Jha, while P.W. 1 would state that it was Yadunandan Mandal who held him with him, in terms of P.W. 3, it was Dwarika Mandal who held Aditya Nath Jha with him. Learned counsel for the appellants would also point out some inconsistencies about the arms held by the appellants. Since P.Ws. 1 and 3 did not claim to have witnessed the appellants holding victims with them at one point of time, it was not unlikely that different narrations were made by them about individual appellant holding the victim, and in the same fashion, the inconsistencies appearing in the testimony of witnesses about arms held by the appellants was quite inconsequential which did not affect the broad feature of the prosecution case. Non-examination of Siasaran Jha and Rajendra Jha who too had allegedly witnessed Diwakar Mandal taking the deceased in their company, was also taken to be a ground to suspect the bona fide of the prosecution case. Similarly non-examination of Shyamakant Jha who stated to have witnessed the appellants taking the deceased in their company forcibly, was also criticised by the learned counsel for the appellants and it is urged that these witnesses were not brought in the witness-box as they were not expected to depose in favour of the State. However, we find that non-examination of these witnesses in view of clinching evidence on record of the two witnesses, who stated to have noticed the appellants holding deceased with them, did not introduce any serious infirmity in the prosecution version. The ocular testimony of the two witnesses about abduction of Gauri Kant Jha and Aditya Nath Jha and their eventual killing, also receives assurance from the positive findings recorded by the doctor who noticed multiple injuries on their persons which were ante-mortem in nature caused by sharp cutting weapons, firearms and also hard and blunt substance. The injuries suffered by the victims were also in tune with the weapons which the appellants were suggested to have held with them. 13. The injuries suffered by the victims were also in tune with the weapons which the appellants were suggested to have held with them. 13. Though attention of P.W. 1 had been drawn by the defence towards his early version which he rendered before the Police ostensibly to impeach his credibility, but on due consideration of the arguments canvassed at Bar on this score too we find that attention has not been drawn on such material particulars of the case which would improbabilise or act against credibility of the witnesses, and that apart as had been stated, we have clear and clinching evidence of P.Ws. 2 and 3. 14. Though a good number of witnesses were examined on behalf of the appellants on the plea of alibi taken on behalf of appellants-Yadunandan Mandal and Diwakar Mandal, we having given due consideration to their testimonies endorse the findings recorded by Court below that no documents of unimpeachable nature was ever brought on the record with the aid of evidence of these witnesses which may either improbabilise or can militate against presence of the appellants and their complicity in abduction of the two deceased. Since Yadunandan Mandal was Mukhiya of Gram Panchayat, it is not unlikely that these witnesses had come to depose in his favour. As has been stated, motive had been assigned by the State that the appellants were being prosecuted in a case registered under S. 396, I.P.C. in which Gauri Kant Jha was a witness. The narrations made by the witnesses do suggest that the appellants were even convicted on that count by the Court below and on this score, we find that motive assigned by the prosecution would not be said to be fallacious. Since the evidence placed on the record eloquently suggests that the appellants abducted Gauri Kant Jha and Aditya Nath Jha, pursuant to which their dead bodies were noticed floating in the water of the river, accusations attributed to them squarely attract mischief of Ss. 364/34, I.P.C. 15. Having given our anxious and deepest considerations to the evidences placed on the record, facts and circumstances of the case and also regard being had to the contentions raised on behalf of the appellants, we endorse the findings of guilt recorded by the Court below holding the appellants guilty under Ss. 364/34, I.P.C. and sentencing them in the manner stated above. 364/34, I.P.C. and sentencing them in the manner stated above. There being no merit, this appeal is dismissed. Since the appellants are shown to be on bail, their bail bonds are cancelled and the trial Court is directed to take all coercive measures for their apprehension to serve out the sentence. 16. P. K. SINHA, J. :- I agree. Appeal dismissed.