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2004 DIGILAW 439 (PAT)

Kapildeo Mandal v. State Of Bihar

2004-04-16

INDU PRABHA SINGH, P.N.YADAV

body2004
Judgment INDU PRABHA SINGH and P.N.YADAV JJ. 1. Land dispute and litigations arising therefrom have taken toll of lives of innumerable persons. Murder of Sita Ram Mandal was also committed in the same perspective of land dispute between him and his marauders. 2. The deceases Sita Ram Mandal, his elder brother Ramanand Mandal, the informant (PW-9) of village Dharampur situated within the jurisdiction of Sambhugani Police Station of Bhagalpur District and other members of their family were in the fateful night aslept in different parts of the same house. Ramanand Mandal at about 11.00 p.m. in the night woke up from his slumber hearing sound of barking of dogs. Soon he brightened the light of the lantern burning in the verandah and flashed torch light and noticed in the light thereof the appellants Kapildeo Mandal and Milan Mandal who were full brothers jumping into the courtyard from the roof of the hutment (PALANI) and one of them opened the southern window and the other opened the eastern main entrance door through which the appellants Dip Narayan Mandal. Pratap Mandal, Subhit Mandal and some unknown miscreants entered into the house. 3. The appellants Dip Narayan Mandal, Kapildeo Mandal and Milan Mandal were having country made pistols with them while other miscreants were armed with sword, spear, lathi etc. The appellants Dip Narayan Mandal and Subhit Mandal opened fire upon the deceased while others assaulted him with lathi, spear etc. as result of which he sustained injuries. In the meanwhile, Kapildeo Mandal in pursuance of order and instigation made by Subhit Mandal shot at Ramanand Mandal who sustaining injury fell down whereafter he dealt blow on his head with the butt of the pistol. One of the miscreants uttered both Sita Ram Mandal and Ramanand Mandal were dead. Just then some of the miscreants wanted to remove certain goods and articles from the house but Pratap Mandal asked them not to commit theft and to retreat saying that their mission had been completed and fulfilled. Meanwhile one of the miscreants poured a bottle of kerosene oil on the person of Brahmdeo Mandal (PW 6), son of the deceased and started searching for a match to set him ablaze whereupon his mother Longo Devi started weeping, entreating and begging earnestly for his life. Then the miscreants spared Brahmdeo Mandal. Meanwhile one of the miscreants poured a bottle of kerosene oil on the person of Brahmdeo Mandal (PW 6), son of the deceased and started searching for a match to set him ablaze whereupon his mother Longo Devi started weeping, entreating and begging earnestly for his life. Then the miscreants spared Brahmdeo Mandal. While retreating they assaulted Mahesh Mandal (PW 5) son of the deceased and some of them also took away certain house goods and articles. 4. On alarm the villagers such as Bhedi Mandal, Teji Mandal (PW 4) Lali Mandal, Jitan Ravidas (PW 2), Sudin Ravidas and others arrived at the scene after the miscreants had fled away. Thereafter, Sita Ram Mandal was taken to Kurmadih Hospital which referred him to Bhagalpur Medical College Hospital where he succumbed to the injuries on the next day. Ramanand Mandal went to the police station where fardbeyan on Ramanand Mandal was recorded by Rajendra Mishra. Officer-in-Charge of Sambhugani police station and both Ramanand Mandal and Mahesh Mandal were sent to Kurmadih Hospital for treatment. 5. On the basis of fardbeyan of PW 9 Ramanand Mandal, Sambhuganj PS. Case No. 2 of 1979, was registered. Investigation was taken up by Sridhar Choubey, Asstt. Sub-Inspector of Police (CW 2), who inspected the place of occurrence, recorded the statement of the witnesses. prepared injury slips of Ramanand Mandal and Mahesh Mandal before they were sent to Kurmadih Hospital collected postmortem examination, report and after completing investigation laid charge-sheet against the appellants as well as the co-accused Sheo Prasad Singh @ Madaki and Hiralal Singh and finally the trial commenced after commitment. 6. The appellants did not enter into defence but from the trend of cross-exanimation of the prosecution witnesses and statements of the appellants recorded under Section 313, Cr PC the defence set up in the Court below as well as in this Court seems to be that of total denial and false implication out of sheer enmity emanating from long drawn land dispute. The Trial Court, however, upon meticulous examination of the entire evidence available on records negativing the plea of innocence of the appellants found the prosecution version to be true and convicted all the five appellants, namely, Dip Narayan Mandal, Subhit Mandal, Kapildeo Mandal, Pratap Mandal and Milan Mandal and sentenced them to undergo rigorous imprisonment for life each under Section 302 read with Section 149 of the Indian Penal Code (hereinafter to be referred to as the Code) and it further convicted them under Sections 452 and 148 of the Code and sentenced each of them to undergo rigorous imprisonment for five years under Section 452 of the Code and it also convicted the appellants Pratap Mandal and Kapildeo Mandal and sentenced them to undergo rigorous imprisonment for one year each under Section 323 of the Code, no separate sentence having been awarded to the appellants under Section 148 of the Code the sentences awarded to the appellants having been ordered to run concurrently, acquitting the appellants of the charges under Sections 307 and 380 of the Code and also acquitting the co-accused Sheo Prasad Mandal @ Madaki and Hiralal Mandal of the charges levelled against them. 7. Being aggrieved by the judgment and order of conviction and sentence recorded against them by the Court below Kapildeo Mandal and Milan Mandal preferred Cr. Appeal No. 646 of 1987 and Dip Narayan Mandal, Subhit Mandal and Pratap Mandal filed Cr. Appeal No. 32 of 1988. Both the appeals arose out of one and the same judgment and hence they were for the sake of convenience heard together and are going to be disposed of by this common judgment. 8. The contention raised on behalf of the appellants to assail propriety of verdict of guilt rendered by the Court below may be summarised here : The incident leading to the death of the deceased took place at late night when the inmates of the house must be in deep slumber and as a matter of fact none could see and identify the culprits and the witnesses falsely claimed to have seen and identified the appellants in the light of lantern and torch. Eye-witness account of the incident is inconsistent with medical evidence for, no fire arm injury was noticed by the doctor conducting autopsy. Evidence of the prosecution witnesses is discrepant and contradictory. Eye-witness account of the incident is inconsistent with medical evidence for, no fire arm injury was noticed by the doctor conducting autopsy. Evidence of the prosecution witnesses is discrepant and contradictory. The material witnesses are relatives and interested ones and it would not be just, proper and expedient in the interest of justice to base conviction on their corroborated testimony. There has been long drawn land dispute between the parties and the appellants have been falsely implicated out of sheer enmity. The prosecution has failed to establish existence of motive impelling the appellants to commit the crime. There is nothing on records to show that the appellants other than Dip Narayan Mandal, Subhit Mandal and Kapildeo Mandal had shared common object in prosecution of which the deceased was eliminated. 9. It would be relevant and convenient to discuss and analyse the testimony of witnesses with brevity in order to appreciate the rival contentions put forward at the bar. The informant Ramanahd Mandal (PW 9), Mahesh Mandal (PW 5), Brahmdeo Mandal (PW 6), Bimla Devi, wife of deceased (PW 7), Bimla Devi, wife of the informant (PW 8) are. the inmates of the house and they are eye-witnesses to the occurrence. Without re-producing the evidence in detail, it may be stated at the very outset that we agree with findings recorded by the Trial Court regarding exact role played by the appellants We may, however, give a brief account of our appreciation ol evidence, Ramanand Mandal, the maker of the fardbeyan has reiterated his earliest version about the appellants visiting his house in the fateful the night with particular weapons in their hands when he and all the members of his family were in slumber. He woke up hearing sound of barking of dogs when he noticed in the light of lantern and torch Kapildeo Mandal and Milan Mandal jumping down in the courtyard from the roof of the house (PALANI) and their opening the southern window and the eastern main entrance door facilitating entry of other appellants plus some unknown miscreants who variously assaulted the deceased with farsa, lathi etc. put of whom he identified Dip Narayan Mandal, Subhit Mandal, Kapildeo Mandal, Pratap Mandal and Milan Mandal. 10. put of whom he identified Dip Narayan Mandal, Subhit Mandal, Kapildeo Mandal, Pratap Mandal and Milan Mandal. 10. It is in the evidence of PW 9 that Dip Narayan Mandal opened fire upon the deceased from the pistol he was holding and in pursuance of order and instigation made by Subhit Mandal Kapildeo Mandal opened fire upon him (PW 9), however, the shot so fired by him did not hit him whereafter he inflicted blow on his head with the butt of the pistol. He further stated how the miscreants intended to set Brahmdeo Mandal (PW 6) on fire after pouring kerosene oil on his person but he was spared on request made by his mother to the miscreants. PW 9 also spoke of infliction of assault on Mahesh Mandal (PW 5) by one of the miscreants. He added that the deceased was taken to Kurmadih Hospital and he went to the police station where his statement was recorded and subsequently, he alongwith PW 5 was sent to Kurmadih Hospital. In his statement recorded at the police station on the. basis of which the formal FIR was drawn up and the case registered he stated that he alongwith the deceased and PWs. 5 and 6 was taken to Kurmadih Hospital wherefrom he went to the police station. This inconsistency in the statement of PW 9 is of no consequence and the same must be ignored. The witness also testified to the death of the deceased on the following day at Bhagalpur Medical College Hospital where he was referred to by Kurmadih Hospital. 11. Identical is the evidence of PW 5 Mahesh Mandal who corroborated PW 9 in all material particulars with the only difference that he stated that both Subhit Mandal and Dip Narayan Mandal shot at the deceased whereas according to PW 9. It was Dip Narayan Mandal who shot at him, PW 9 did not say that Subhit Mandal had also flred upon the deceased. This inconsistency in the statement of PW 5 and PW 9 too does not warrant catching of our attention and no weightage should be given to the same. It is just possible that PW 9 who must be said to be perplexed at the moment might have missed to notice Subhit Mandal resorting to firing. This inconsistency in the statement of PW 5 and PW 9 too does not warrant catching of our attention and no weightage should be given to the same. It is just possible that PW 9 who must be said to be perplexed at the moment might have missed to notice Subhit Mandal resorting to firing. PW stated he was assaulted by the appellant Pratap Mandal and PW 9 was also inflicted assault by the miscreants. 12. We may now advert to the evidence of PW 6 Brahmdeo Mandal who like PW 9 and PW 5 named all the appellants and described them as assailants of his father, the deceased Sita Ram Mandal. He spoke of weapons held by the appellants. According to him, Dip Narayan Mandal, Kapildeo Mandal and Milan Mandal were having pistols while Subhit Mandal and Pratap Mandal were armed with gun and dagger respectively. He stated it was Milan Mandal who poured kerosene oil on him with intent to setting him ablaze but it could not be done as the miscreants could not get a matches whereafter Kapildeo Mandal, Milan Mandal and Dip Narayan Mandal assaulted him and the miscreants also inflicted assault on PW 5 Mahesh Mandal and PW 9 Ramanand Mandal, PW 7, Bimla Devi, wife of the informant (PW 9) and PW 8. Bimla Devi, wife of Brahmdeo Mandal (PW 6) broadly supported the prosecution version corroborating PWs. 5, 6, 8 and 9. Bimla Devi (PW 7) identified all the five assailants, who were variously armed with gun, pistols farsa, lathi, etc. However, PW 8 could name only two appellants Kapildeo Mandal and Milan Mandal. 13. All the witnesses referred to above claimed to have identified the appellants in the light of lantern and torch. They could have certainly identified them, who were well known to them since long before the incident in the light of torch and lantern which was burning in the verandah of the house. A feeble argument has been advanced on behalf of the appellants that the light coming from lantern and torch must be dim and the witnesses could not have been in a position to identify the miscreants in such dim light. The argument is non-memtous. We cannot act upon conjucture and surmises that light of lantern and torch was too dim and feeble to enable the witnesses to identify the assailants in their house. 14. The argument is non-memtous. We cannot act upon conjucture and surmises that light of lantern and torch was too dim and feeble to enable the witnesses to identify the assailants in their house. 14. After hearing alarm Madan Mandal (PW 1), Jitan Ravidas (PW 2), Adhiklal Mandal (PW 3) and Tej Narayan Mandal (PW 4) arrived at the scene of occurrence and they saw the deceased lying injured in a pool of blood and they also found certain minor injuries on the person of PW 9 and PW 5, and PW 9 disclosed the names of appellants who had assaulted them as well. 15. We have gone through the entire evidence with the help of the learned counsel for the parties. The witnesses have been cross- examined at length but nothing has been elicited in their cross-examination to demolish their veracity or to cast a doubt on the truthfulness of their testimony. They are natural and competent witnesses and have deposed in a forthright manner. Their evidence is quite consistent and corroborative free from inherent taint and infirmity. No outsider or independent villager was expected to remain present in the house of the deceased in the night at about 11.00 p.m. to witness the appellants committing the crime. It may also be observed that the first information report was lodged with promptitude and there was no scope for concoction and embellishment. 16. The informant Ramanand Mandal (PW 9) stated in his fardbeyan that Kapildeo Mandal opened fire upon his as a result of which he sustained injury and fell down but in his evidence he said the shot so fired by him did not hit him and he was inflicted blow on his head by Kapildeo Mandal with the butt of the pistol. This discrepancy in his statement recorded in the first information report his evidence cannot instil suspicion in the prosecution case. His statement in the first information report was made by way of exaggerating the prosecution version. PW 9 admitted in his cross-examination that he alongwith others was convicted in a case of dacoity committed in the house of Chandramohan Singh in the year 1976. On that account alone his testimony cannot be impeached. 17. We have noticed that there is no major contradiction or discrepancy in the statement of the eye-witnesses going to the root or adversely affecting the edifice of the prosecution case. On that account alone his testimony cannot be impeached. 17. We have noticed that there is no major contradiction or discrepancy in the statement of the eye-witnesses going to the root or adversely affecting the edifice of the prosecution case. Certain minor inconsistencies or contradictions are bound to occur in the evidence of even natural and truthful witnesses. Such inconsistencies and/or contradictions must be ignored. 18. Of course, the eye-witnesses are close relatives of the deceased and even the hearsay witnesses. (PWs 1, 3 and 4) seem to be their agnates and they may be branded as interested withesses. The appellants too are inter se related inasmuch as Dip Narayan Mandal, Subhit Mandal and Pratap Mandal are brothers while Kapildeo Mandal and Milan Mandal are their nephews bhegnas. The prosecution witnesses also seem to be inimical to the appellants on account of long drawn land dispute between them. The principle of law enunciated in various decisions of the Apex Court and various High Courts is that evidence of relatives and interested witnesses who are also inimical to the accused cannot be thrown over board and conviction can be passed on their evidence even without coiToboration if their evidence on a close and careful scrutiny is found to be consistent, true and wholly reliable. The desire to punish the assailant of his kith and kin would be so intense in the mind of the witness that he would not think in terms of substituting real assailants with the enemies of their family even though they were not concerned with assault. As already stated above, the evidence of the prosecution witnesses in the instant case has on analysis and scrutiny been found to be above board and worthy of credence and the same must be accepted and acted upon. 19. The contention that the prosecution witnesses are relatives and interested and at the same time inimical to the appellants and their un-corroborated testimony is fit to be discarded has got no merit and force. 20. Now adverting to medical evidence, it is noticed that Dr. Ambuj Kumar Choudhary (CW 1) conducted autopsy on the dead body of the deceased on 16.7.1979. He found the following antimortem injuries on the person of the deceased: (i) abration of dimension of 2-1 /2" x 1-1/2" just below the left eye: (ii) one stitched wound on frontal bone. 20. Now adverting to medical evidence, it is noticed that Dr. Ambuj Kumar Choudhary (CW 1) conducted autopsy on the dead body of the deceased on 16.7.1979. He found the following antimortem injuries on the person of the deceased: (i) abration of dimension of 2-1 /2" x 1-1/2" just below the left eye: (ii) one stitched wound on frontal bone. On cutting the stitches the dimension of the wound was found to be 1-1/2" x 1/2" bone deep with lacerated margins. On dissection under lying tissues were found to be infiltrated with blood and blood clots. There was also fracture of frontal bone: (iii) one stitched wound just below the left ear. On cutting the stitches the dimension of the wound was found to be 1-1/2" x 1/2" x bone deep with lacerated margins and laceration of external pina of left ear: (iv) one stitched wound on left side of the chin. On cutting the stitches the dimention on the wound was found to be 1" x 1/2" x deep to the mouth cavity. On dissection laceration of muscle and fracture of left ramus of mandible was detected; and (v) one stitched wound on the right side of the chest in between the tenth and 12th ribs. On cutting the stitches the dimention of the wound was found to be 1/2" x 1/4" x deep up to abdominal cavity. The wound was incised and penetrating one. Injury Nos. 1 and 3 were said to be simple while Injury Nos. 2, 4 and 5 greivous in nature. According to the Doctor, injury Nos. 1 to 4 were caused by hard and blunt substances while injury No. 5 was caused by sharp penetrating weapon. In the opinion of the Doctor, the death occurred due to shock and haemorrhage resulting from the injuries enumerated above which were sufficient in the ordinary course of nature to cause death. The time elapsed since death was stated to be within 12-24 hours from the time of postmortem examination. In his cross-examination, CW 1 stated that the Doctor who initially examined and treated the victim would be in a better position to say about the weapon used and the nature of injuries. The doctor further stated that he did not find any indication of fire arm injury on the person of the deceased and no bullets or pillets were found embedded in the wounds. The doctor further stated that he did not find any indication of fire arm injury on the person of the deceased and no bullets or pillets were found embedded in the wounds. The occular evidence led at trial revealed that the appellants and other miscreants were armed with fire arms, spear, farsa, dagger, lathi etc. and they variously assaulted the deceased with the weapons they were armed with while Dip Narayan Mandal and Subhit Mandal shot at him. The statement of CW 1 that the Medical Officer who examined and treated the deceased would be in a better position to express opinion regarding the weapons used and the nature of injuries and that there was no evidence to indicate infliction of fire arm injury on the person to the victim cannot instil even the slightest doubt in the prosecution case. Besides the Trial Court appears to have rightly observed that injuries Nos. (ii) and (iii) might have been caused by fire arms. It is also to be noted that we are aware of the settled principle of law that when there is inconsistency or divergence in occular evidence and medical evidence the former would be preferred and accepted. 21. We may now examined and analyse the evidence of Sridhar Choubey, the Investigation Officer (CW 2). He stated that investigation was entrusted to him by Rajendra Mishra, the Officer-in-Charge of Sambhugani Police Station and soon he recorded further statement of the. informant Ramanand Mandal, he saw injuries on his person, prepared injury slip and sent him to Kurmadih Hospital for his treatment and he set out for the place of occurrence, inspected the same and gave a vivid description of the same. He found blood fallen in front of south eastern room, the verandah and blood stains on the wall of the house. Though, he claimed to have ceased the blood from the place of occurrence, the seizure list is not available on records but on that score alone the prosecution version that in course of infliction of assault blood had fallen at the place of occurrence cannot be disbelieved. Fault or negligence committed by the Investigation Officer in not preparing the seizure list and not sending the ceased blood for chemical analysis cannot pave the ground for throwing the prosecution case over board. Fault or negligence committed by the Investigation Officer in not preparing the seizure list and not sending the ceased blood for chemical analysis cannot pave the ground for throwing the prosecution case over board. The Investigation Officer stated that the recorded the statement of the witnesses, obtained postmortem examination report as well as injury report in respect of the injuries sustained by PW 9 Ramanand Mandal, but the name does not appear to have been exhibited on account of non-examination of the doctor. As CW 2 Sridhar Choubey was transferred somewhere else he handed over investigation which was almost complete to P.C. Chakravorty, who after perusing the case diary and obtaining permission of the superior authority submitted charge-sheet. Nothing material has been elicited in the cross-examination of the Investigating Officer (CW 2) to render his testimony doubtful. 22. The Investigating Officer (CW 2) stated that he had received fardbeyan of the informant (PW 9) recorded at Bhagalpur Hospital after the deceased succumbed to the injuries. It was just a formality that his statement was recorded after the death of the deceased and the same was called fardbeyan. In view of the first information report already lodged by PW 9 his sub-sequent statement made in the hospital could not be treated as his fardbeyan and its non-production in the proceeding was not at all material adversely affecting the prosecution case. 23. It has been submitted that it has come in the fardbeyan or evidence that chowkidar, dafedar Bhedi Mandal, Lali Mandal, Sudin Ravidas also visited the place of occurrence and they must have been narrated the manner in which the incident took place and as they were independent witnesses their evidence would have been of important significance but they were not examined and suppression of such independent witnesses must give rise to an adverse inference against the prosecution case. The submission is devoid of merit and force. They were not eye-witnesses to the occurrence and their evidence was not at all essential for unfolding of the narratives of the prosecution version and as such their non-examination was of no consequence. 24. Land dispute and litigations arising therefrom between the parties is said to have acted as motive impelling the appellants to eliminate the deceased. They were not eye-witnesses to the occurrence and their evidence was not at all essential for unfolding of the narratives of the prosecution version and as such their non-examination was of no consequence. 24. Land dispute and litigations arising therefrom between the parties is said to have acted as motive impelling the appellants to eliminate the deceased. It has been urged that the case in respect of disputed land was decided in favour of the appellants and hence they were not expected to have executed the killing of the deceased and the appellants have obviously been implicated on account of animosity. Enmity is a double edged weapon that cuts both ways. The possibility of the appellants taking extreme steps on account of long drawn dispute and enmity cannot be ruled out. Besides, the motive becomes irrelevant and it has no important role to play when there is direct evidence to establish commission of an offence. In the case at hand there is direct, cogent and reliable evidence corroborated by objective findings of the Investigating Officer to establish that the appellants executed the killing of the deceased and hence no motive is required to be proved. 25. Though, the appellants Dip Narayan Mandal and Subhit Mandal were charged under Section 302, they along the other three appellants were convicted under Section 302, read with Section 149 of the Code for, the Court held that though Dip Narayan Mandal and Subhit Mandal were authors of fire arm injuries, according to the doctor death was resultant of cumulative effect of all the five injuries and it was not caused by fire arm injuries simpliciter. There was nothing wrong in convicting Dip Narayan Mandal and Subhit Mandal under Sections 302/149 of the Code. No prejudice at all was caused to them if they were charged under Section 302 but were convicted under Sections 02/149 of the Code. 26. Lastly, it has been contended that there is nothing on records to show that the killing of the deceased was executed by the appellants in prosecution of common object of them all. This contention too must be rejected for the reasons stated hereinafter. 26. Lastly, it has been contended that there is nothing on records to show that the killing of the deceased was executed by the appellants in prosecution of common object of them all. This contention too must be rejected for the reasons stated hereinafter. Section 149 of the Code deals with vicarious liability of the members of an unlawful assembly for act done in prosecution of the common object of that assembly or for such offence as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed by one or more but not all the members of the assembly in prosecution of that object all the members of the assembly will be vicariously liable for that offence. In the instant case all the appellants having armed themselves with various lethal weapons forcibly entered in the house of the deceased at 11.00 p.m. in the night, they brutally assaulted the deceased with weapons they were having with them and in the process they also assaulted certain other inmates of the house after infliction of assault one of them uttered their cherished mission had been fulfilled inasmuch two persons, the deceased and the informant who had also fallen on the ground after sustaining head injury were dead and hence they should retreat and thereafter all the appellants left the place of occurrence and they fled away together in the same direction. All this is eloquent of the fact that all the appellants formed unlawful assembly with common object of killing the deceased and each one of them also played his role in the episode and the killing of the deceased was executed in prosecution of that common object and hence all the appellants shall be liable under Section 302, read with Section 149, of the Code, for commission of murder of the deceased. 27. In view of what has been stated and observed in the preceding paragraphs, there is no scope for interfering with the findings of guilt and sentences awarded to the appellants recorded by the Court below. 27. In view of what has been stated and observed in the preceding paragraphs, there is no scope for interfering with the findings of guilt and sentences awarded to the appellants recorded by the Court below. The counsel for the appellants could not persuade us to accept the defence version that the,/ assailants of the deceased could not be identified in the night and the appellants have been falsely implicated out of sheer enmity emanating from land dispute. 28. In the result, conviction and sentence of the appellants is maintained. Both the appeals bearing Cr. Appeal No. 646 of 1987 and Cr. Appeal No. 32 of 1988 stand dismissed. 29. I agree.