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2002 DIGILAW 946 (PAT)

Panchu Mandal v. State of Bihar

2002-08-29

B.K.JHA, M.L.VISA

body2002
JUDGEMENT M. L. VISA, J.: - This appeal by the sole appellant Panchu Mandal is directed against the judgment and order both dated 27.8.1996 passed by the 1st Additional Sessions Judge. Bhagalpur, in Sessions Case No. 125 of 1991 convicting the appellant under sections 302/148 of the Indian Penal Code (in short, IPC) and 27 of Arms Act and sentencing him to undergo rigorous imprisonment for life under section 302 IPC. No separate sentence has been passed either under section 148 IPC or 27 of Arms Act. 2. The case of prosecution as disclosed in the fardbeyan (Ext.4) of informant Rajendra Chaudhary (PW-6), in short, is that on 31.10.90 at about 12 O'Clock in the noon, the informant along with deceased Babu Lal Chaudhary, Prabhu Chaudhary (PW-1), Suresh Chaudhary (PW-2), Priyanandan Chaudhary (PW-5) and Moti Chaudhary (not examined) was sitting in a hut when the appellant along with his son Sudhir Mandal, his nephew Ranjeet Mandal, Kantesh Mandal, Ramdeo Mandal and son of Nage Rai came there. Appellant who was armed with a .303 (a fire arm) asked for demolishing the wall of the house and vacating the land on which Bahu Lal Chaudhary refused to do so and appellant then wielding 303 pounced on which informant and his associates started running. The informant and deceased both by running reached the “Kola' (piece of land) of informant where deceased stopped and informant went at the corner of his house situated adjacent to his 'Kola'. The appellant and his associates came running to the bungala (sitting place outside the house) of informant and surrounded the deceased and thereafter appellant fired from his .303 on "Kanpatti" (temple) of deceased. The deceased fell down and blood in copious quantity started oozing out from his head. This occurrence was witnessed by informant, Suresh Chaudhary (PW-2) and mother (PW-4) and wife (PW-8) of deceased but nobody out of fear came forward and appellant and his associates thereafter fled away through an orchard by firing in air. Thereafter when informant went near the deceased he found him dead and he also found mark of firing on his temple. About the motive of occurrence, the informant in his fardbeyan has stated that Jagdish Mahto and Vidyanand Mahto (DW-4) owned land m the village who agreed to sell this land to informant @ Rs. 24,000/- per bigha and after receiving a sum of Rs. About the motive of occurrence, the informant in his fardbeyan has stated that Jagdish Mahto and Vidyanand Mahto (DW-4) owned land m the village who agreed to sell this land to informant @ Rs. 24,000/- per bigha and after receiving a sum of Rs. 22,000/- had executed an agreement to sell and thereafter informant and other persons of Pasi Tola were constructing their separate houses on this land but recently appellant got a sale deed executed from the owners of this land and because occupants of land were not ready to vacate the land, the murder of deceased was committed. On the basis of fardbeyan of informant, formal FIR (Ext.3) against the appellant and Kantesh Mandal Sudhir Mandal, Ranjeat Mandal and son of Nage Rai under sections 147,148,149, 447 and 302 IPC and 27 of Arms Act was drawn. Police after investigation submitted charge-sheet against the appellant, Ramdeo Mandal & Kantesh Mandal keeping the investigation pending against Sudhir Mandal and Ranjeet Mandal who were abconding. After commitment of the case of appellant and co-accused Ramdeo Mandal and Kantesh Mandal to the court of Session charge under section 302 read with section 149 IPC against all the three and additional charges under sections 302/148 IPC and 27 of Arms Act against appellant were framed. The case of appellant before the court below as it appears from the trend of cross examination of prosecution witnesses and evidence of defence witnesses was that deceased was murdered by one Piun Singh and appellant has been falsely, implicated in this case on account of land dispute. After trial appellant was found guilty under sections 302 and 148 IPC and 27 of Arms Act and he was sentenced to undergo rigorous imprisonment for life under section 302 IPC but no separate sentence was passed against him, under section 148 IPC and 27 of Arms Act. The remaining two other co-accused persons namely, Ramdeo Mandal and Kantesh Mandal who faced trial with appellant were not found guilty and they were acquired. 3. In order to prove its case the prosecution has examined 10 witnesses. Rajendra Choudhary (PW-6) is informant. Prabhu Chaudhary (PW-1). Suresh Chaudhary (PW-21) Indu Devi (PW-4), Priyanandan Chaudhary (PW- 5) and Uma Devi (PW-8) are said to be eye witnesses to the occurrence. Dr. N.N. Bhagat (PW-9) is the doctor who had held autopsy on the dead body of deceased. In order to prove its case the prosecution has examined 10 witnesses. Rajendra Choudhary (PW-6) is informant. Prabhu Chaudhary (PW-1). Suresh Chaudhary (PW-21) Indu Devi (PW-4), Priyanandan Chaudhary (PW- 5) and Uma Devi (PW-8) are said to be eye witnesses to the occurrence. Dr. N.N. Bhagat (PW-9) is the doctor who had held autopsy on the dead body of deceased. Tripurari Singh (PW-10) is a police officer who had submitted charge-sheet in this case. Mahendra Chaudhary (PW-3) is a formal witness who has proved his signature (Ext.1) on the inquest report. Chaitu Chaudhary (PW-7) who is father of deceased, has said that on the day of occurrence he had gone to Bhagalpur and when he returned from there he came to know that his son had been killed and he saw the dead body of deceased on the bungala of informant who told him that appellant along with Sudhir Mandal, Kantesh Mandal, Ramdeo Mandal and Ranjeet Mantal had killed his son. 4. Dr. N.N. Bhagal (PW-9) in his evidence has said that on 1.11.90 he was posted as Asstt. Professor in J.C.N.M. College, Bhagalpur and on that day at about 11 AM he conducted postmortem examination on the dead body of deceased and found following ante mortem Injuries. (i) Fire arm wound of entry 1 cm in diameter, margin inverted, on right side chest, two inches above right exila, tatooing in four inches area around the wound. (ii) Wound of exit 2 cm in diameter, margin everted on left side back two inches medial of left exila. According to the doctor, both the wounds were found communicating, projectile travelled through wound of entry fracturing 3rd rib through light ling, aorta, left lung and out -through 5th the posterior side fracturing it and out through the wound of exit. He has futher said that these injuries were caused by fire arm weapon and cause of death was haemorrhage and shock and time elapsed since death was within 24 hours and injuries were grievous which were sufficient to cause death. He has proved he post mortem examination report (Ext.2). From the evidence of this witness it appears 1t death of deceased was homicidal. 5. He has proved he post mortem examination report (Ext.2). From the evidence of this witness it appears 1t death of deceased was homicidal. 5. Rajendra Chaudhary (PW-6), the formant, in his evidence has said that at the one of occurrence he along with deceased, Prabhu Chaudhary (PW-1), Suresh Chaudhary (PW 2) and Priyanandan Chaudhary (PW-5) was sitting in a hut and were gossiping with each other and when appellant, Kantesh Mandal, Ranjeet Mandal, Sudhir Mandal and Ramdeo Mandal came there and appellant was carrying a .303 and some of his associates were carrying lathis and appellant asked the deceased to vacate the land on which he had constructed his house and when deceased replied that as he had paid a sum of Rs. 22,000/- therefore he would not vacate the land, the appellant th9n with his .303 rushed forward and the informant, deceased and others started running and came to a place south of house of informant where appellant and his associates also reached chasing them and appellant then fired at the deceased and deceased fell down and died. The occurrence was witnessed by the mother and wife of deceased and by Suresh Chaudhary (PW-2) besides the informant. About the motive of occurrence he has said that land on which hut was constructed was taken from Vidyanand Mahto and Jagdish Mahto on the basis of agreement to sell after paying them a sum of Rs. 22,000/- and land measured 1 bigha 11 Kathas and thereafter the appellant also got a sale deed executed by Vidyanand Mahto and Jagdish Mahto in his favour for the same land. In the fardbeyan (Ext.4) the informant has stated that appellant had shot from his .303 on the temple of deceased at a point blank range but in his entire evidence he has not stated on which part of body of deceased the shot fired by appellant hit. Besides this, in para 36 of his cross examination he has said that the assailant of deceased was standing near the deceased and because he was at that time hinding, therefore, he could not see the direction of the place where the assailant of deceased was standing. Besides this, in para 36 of his cross examination he has said that the assailant of deceased was standing near the deceased and because he was at that time hinding, therefore, he could not see the direction of the place where the assailant of deceased was standing. This statement coupled with his further statement in the same para that when he reached the place of occurrence he found the deceased smeared with blood and some blood had been solidified makes his earlier statement that he witnessed the occurrence quite doubtful. Prabhu Chaudhary (PW-1) has said that at the time of occurrence he along with deceased, informant, Suresh Chaudhary (PW-2) and Priyanandan Chaudhary (PW-5) was sitting in his hut when appellant and his associates came and appellant was armed with a pistol who asked the deceased to vacate the land and on refusal by deceased the appellant and his associates chased the deceased and he also followed him and deceased entered in the bungala of informant and there after he heard sound of two firings and thereafter when he went there he found the deceased fallen in the bungala of informant and blood was oozing from his body and at that time deceased was dead. In para14 he has clearly admitted that he dod not see the occurrence and he had gone to the place of occurrence after the occurrence had already taken place. In para-15 of his cross examination he has admitted that he had dispute owing to land of hut with appellant. Suresh Chaudhary (PW-2) has also said that on the day of occurrence at about 12 O'clock he along with deceased. informant, PW-1 and PW-5 was sitting in his hut when appellant armed with a .303 along with his associates came and appellant asked the deceased to vacate the land and on refusal by deceased the appellant chased them and they all started running and in the bungala of informant appellant and his associates surrounded the deceased and thereafter he heard sound of firing in the bungala and at that time he was at a place near the house of one Moti and thereafter when he went running in the bungala of informant he found that deceased had already died and there was wound of fire arm on the side of 'Panjarathi' (side of chest) and blood was also oozing from 'Panjarathi' and temple of deceased. His evidence that when he heard sound of firing from .303, at the time he was at a place adjacent to the house of one Moti and after that he went running to the bungala of informant and found that deceased had already died, suggests that he is not an eye witness to occurrence. His evidence that he found blood oozing out from temple of deceased is not supported by the medical evidence of Dr. N.N. Bhagat (PW-9) who had found only one fire arm injury on right side of chest of deceased. His attention has been drawn that in his statement before I.O. he had not stated that appellant was armed with .303 and he had not stated the name of appellant as assailant of deceased. Although he has denied these suggestions of defence but then the prosecution has not examined the I.O. of this case on account of his death. The learned counsel of appellant has submitted that para 10 of case diary which has been got proved and brought on record by prosecution as Ext.5 shows that this witness had not stated earlier that appellant fired at deceased. Indu Devi, (PW-4) mother of deceased, has said that at the time of occurrence she was in her house and there is a passage through the court - yard of her house and court - yard of her house was open and she saw that deceased was being chased by appellant and his associates and she also followed them and appellant and his associates chased the deceased up-to the bungala of informant where they surrounded the deceased and appellant fired shot from his pistol at the deceased who died and she also fell down. In para 13 of her cross examination she has said that when deceased was being chased she was in her venandah and she came out from verandah to see who was chasing her deceased son and when she went to the place of occurrence she found her deceased som smeared with blood. In the same para she has further said that when informant and PW-1 came there and inquired from her she narrated the entire incident. Her evidence shows that informant and Suresh Chaudhary (PW-2) had come to the place of occurrence after the occurrence had already taken place and they were told by her about the occurrence. In the same para she has further said that when informant and PW-1 came there and inquired from her she narrated the entire incident. Her evidence shows that informant and Suresh Chaudhary (PW-2) had come to the place of occurrence after the occurrence had already taken place and they were told by her about the occurrence. Her admission that when she went to the place of occurrence she saw body of her deceased son smeared with blood makes her evidence quite doubtful that she is an eye witness to the occurrence. Priyanandan Chaudhary (PW-5) has said that on the day of occurrence at 12 O'clock he was in his hut along with informant, deceased, PW-1 and PW-2 when appellant and his associates came there and appellant was armed with a .303 who told the deceased to vacate the land and on refusal by deceased appellant pounced upon the deceased and then deceased started running but they were chased by appellant and his associates upto the bungala of informant where appellant fired at the deceased from .303 and the deceased fell down and died. The attention of this witness has been drawn whether in his earlier statement he had stated that he deceased, informant, PW1 and PW-2 were sitting in hut. the appellant and his associates came there and appellant was armed with a pistol, and at the bungalow of informant appellant fired from his .303 at the deceased and thereafter he fled away. Although he has said that he had stated all the aforesaid facts in his earlier statement but learned counsel of appellant has submitted that para 11 of case diary simply shows that this witness had supported the statement of informant and other witnesses and there is no separate statement of this witness recorded in the case diary (Ext.5). Uma Devi, wife of deceased (PW-8) has said that at the time of occurrence she was cooking food in her house when she saw the appellant and his associates chasing the deceased and when her husband after running entered the bungala of informant, appellant fired at him from his pistol and she also went to the place of occurrence after some time but by that time her husband failed and his body was smeared with blood and blood had , spread to a considerable area and flies were buzzing round the blood. This evidence on her behalf shows that she had reached the place of occurrence after the occurence had already taken place. 6. Tripurari Singh (PW-10) has said that on 28.11.90 he was posted as officer - incharge of Kahalgaon police station and Investigating Officer of this case was Rajendra Singh who had recorded the statement of witnesses and had prepared inquest report and after his transfer he took the charge of investigation of this case on 28.11.90 and he had submitted charge-sheet. He has proved formal FIR (Ext.3), Fardbeyan of informant recorded by Rajendra Pd. Singh (Ext.4) and inquest report (1/1) and the statements recorded in Paras -1 to 64 of case diary (Ext.5) in the pen of R.P. Singh. He has said that R.P. Singh has died. In his cross examination he has admitted that neither he visited the place of occurrence nor he recorded the statement of witnesses. 7. Five witnesses on behalf of defence have been examined. Govind Mandal (DW-1) has said that on the day of occurrence deceased had some altercation with one Piun Singh when Piun Singh fired at the deceased from his pistol. Birbal Mahto (DW-2) has said that on the day of occurrence at about 11.30 AM he was in a line hotel and he heard sound of firing from north side and he also saw Piun Singh running out and saying that whoever will say anything would be shot dead and Piun Singh fired in air and thereafter when he went to the place of occurrence he came to know that Piun Singh had shot the deceased. Ram Narayan Goswami (DW-3) has said that on the day of occurrence at about 12 O'Clock he was on duty at Railway gate and he heard sound of firing and he also saw Piun Singh running on road who by abusing gave up that whoever will say anything would be shot dead and thereafter he ran towards the village and thereafter there was 'hulla' that firing was made and he found the dead body of deceased lying at the 'darwaja' of informant and some women present there were weeping who said that Piun Singh had shot the deceased and fled away. Vidyanand Mahto (DW-4) has said that land of plot No.418 under katha No. 38 belonged to him and he had agreed to sell the land to Suresh Chaudhary (PW-2) and sale deed was to be executed by April, 1986 but because in spite of service of notice (Ext. A) Suresh Chaudhary did not agree for execution of sale deed he then sold the land to appellant by a sale deed and sicne the date of sale deed appellant was in possession of the land and neither Suresh Chaudhary nor any other had got any connection with the land. He has admitted that he is father of co-accused Ramdeo Mahto. He has also proved two rent receipts (Exts. B and B/1). Md. Shakoor (DW5) has proved Station Diary Entry No. 715 dated 31.10.90 said to be in the pen and signature of the then officer incharge R.P.Singh. This entry has been marked as Ext. E. Besides the aforesaid witnesses defence has also brought on record two sale deeds (Exts. C and D) executed by Vidyanand Mahto and Jagdish Mahto in favour of appellant. 8. The case of informant in his fardbeyan is that the appellant fired on the temple of deceased from his .303 at a point blank range. It is also stated in the fardbeyan that after receiving the injury the deceased fell down and blood in copious quantity started oozing out from his head. The inquest report (Ext. 1/1) shows that on the left temple a hole with blood was found. This is the only injury which is mentioned in the inquest report. The medical evidence of Dr. N.N. Bhagat (PW-9) shows that two wounds caused by fire arms which were found communicating to each other and out of which one was wound of entry and another was wound of exit were found on the dead body and wound of entry was on right side of chest of deceased was fired and deceased had not received any injury on his temple as stated in the fardbeyan of informant and in the inquest report. It clearly suggests that informant is not an eye witness to the occurrence. It clearly suggests that informant is not an eye witness to the occurrence. Not only that in the fardbeyan it is stated that appellant fired at the deceased on his temple from his pistol at a point blank range but it is also stated that blood in copious quantity started oozing out from the head of deceased. This statement in the fardbeyan is completely against the medical evidence according to which no injury either on the temple or any part of head was inflicted by any thing what to talk by fire arm. The Inquest report also suggests that it was not prepared after examining the dead body of deceased and it was merely prepared on the basis of statement given by informant in his fardbeyan. The informant is not eye witness to the occurrence is also admitted by his own evidence that at the time of occurrence he was hiding and therefore he could not see the direction of the place where assailant of deceased was standing and his further admission that when he reached the place of occurrence he saw the deceased smeared with blood and mother of deceased was telling that her son had been killed. The evidence of Indu Devi (PW-4), mother of deceased, is that when she reached the place of occurence, the informant and PW-1 also came there to whom she told about the occurrence also belies the statement of informant that he is an eye witness to the occurrence. About other witnesses as discussed in foregoing paragraphs we have found that evidence of none of them inspires confidence that either he or she was eye witness to the occurrence. 9. In fardbeyan the informant has said that after coming in possession of the land belonging to Vidyanand Mahto and Jagdish Mahto on the basis of an agreement to sell he along with others of PASI Tola had constructed their separate houses on this land. In para 25 of his evidence he has said that on the day of occurrence he along with deceased and PWs 1, 2 and 5 was sitting in a hut and in para 26 he has said that besides his hut there are 10-12 other huts. Prabhu Chaudhary (PW-1) has said that on the day of occurrence he, deceased, informant and others were sitting in his hut. Prabhu Chaudhary (PW-1) has said that on the day of occurrence he, deceased, informant and others were sitting in his hut. PW-2 says that he had constructed a hut in which on the day of occurrence he, deceased, informant, PW-1 and PW-5 were sitting when appellant and his associates came. Similarly PW-5 has said that on the day of occurrence he, informant, deceased, PW-1 and PW-2 were sitting in his hut. So from the evidence of these witnesses it is not clear that in whose hut they and deceased were sitting when appellant and his associates came and asked the deceased to vacate the land because every one of them is claiming that they were sitting in his own hut. The case of informant in the fardbeyan is that when appellant and his associates started chasing the deceased and others the deceased reached the 'Kola' of informant and stood there and informant reached at the corner of his house and thereafter appellant and his associates came running to the bungala of informant and they all surrounded the deceased and appellant fired at him. This statement does not make it clear that whether deceased was fired either at 'Kola' or bungala of informant. In para-3 of his evidence informant has said that when he came running towards south of his house the appellant and his associates reached there and appellant fired at the deceased there. The evidence of Indu Devi, mother of deceased (PW-4) in para 14 of her cross examination is that at the place where her deceased son had fallen all the article of shop were scattered. This admission shows that deceased was fired at in a shop. She has further admitted that her husband owns a today shop. So the place of occurrence is not established by the evidence of prosecution witnesses. PW4 in para 10 of her evidence has admitted that informant is son of elder brother of her husband. About PW-5 she has said that he is also son of elder brother of her husband. About PW-5 she has said that he is also son of elder brother of her husband and Prabhu Chaudhary (PW-1) and Suresh Chaudhary (PW-2) are also sons of brother of her husband. About PW-5 she has said that he is also son of elder brother of her husband. About PW-5 she has said that he is also son of elder brother of her husband and Prabhu Chaudhary (PW-1) and Suresh Chaudhary (PW-2) are also sons of brother of her husband. So in this way all the witnesses examined in this case claiming themselves to be eye witness to the occurrence are closely related to deceased and not a single independent witness has been examined in spite of the fact that Uma Devi (PW-8), wife of deceased has admitted that about 50-60 persons had assembled at the place of occurrence. The informant in his fardbeyan has described the deceased. PWs 1, 2 and 5 as his villagers without admitting his relationship between them. It appears that he has tried to conceal his relationship with deceased and the aforesaid witnesses. It is the case of defence that deceased was shot dead by Piun Singh. If no reliance on the case of defence is placed even then we find that prosecution witnesses examined in this case have not been able to support the case against the appellant. The fardbeyan which was the first informant lodged with the police is quite contradictory to the medical evidence on the point of part of body of deceased where shot was fired which proved fatal. Land dispute between the informant and other prosecution witnesses claiming to be eye witnesses to the occurrence and appellant is admitted. We therefore find it not safe to sustain the conviction of appellant on the basis of evidence adduced in this case on behalf of prosecution. 10. In the result, this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellant is set aside. The appellant is acquitted of the charges. Since the appellant is in jail custody issue release order immediately. B.K. JHA, J.:- I agree.