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2004 DIGILAW 452 (PAT)

Shiv Nandan Mandal & Ors. v. State Of Bihar

2004-04-21

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment Mridula Mishra, J. 1. Appellants have preferred this appeal against the judgment and order dated 9.2.2001/12.2.2001 passed by the 7th Additional Sessions Judge, Munger in Sessions Trial No. 514/1998/ 47/1998 whereby they have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellant Suvindra Mandal has further been convicted under Section 302/109 of the Code also, but no separate sentence has been awarded. Appellant Makeshwar Mandal has further been convicted under Section 27 of the Arms Act, but in view of the sentence awarded under Section 302 of the Code, no separate sentence has been awarded for conviction under Section 27 of the Arms Act. 2. Mahendra Thakur brother of the deceased Sudhir Thakur, is informant in this case, whose fardbeyan was recorded on 21.8.1998 at 9 a.m. in Sadar Hospital, Jamui. In the fardbeyan the informant has stated that on 20.1.1998 he along with Devendra Thakur and Birendra Thakur had gone to irrigate the wheat field at village Jhuria. On completion of irrigation work they were returning to their village. At about 5 p.m. in the evening when they reached near the residence of Shivan Das his brother Sudhir Thakur was surrounded by Suvindra Mandal, Shivnandan Mandal, Suchit Mandal, Makeshwar Mandal, Anandi Mandal and Narendra Kumar alias Fantoos Mandal. They were armed with gun, pistol, sword and lathi. Makeshwar Mandal ordered to surround the informant and his brothers to kill them. Makeshwar Mandal opened fire from his country made pistol and all other accused caught hold of Sudhir Thakur. Suvindra Mandal and Suchit Mandal assaulted on the head of Sudhir Thakur with sword. Makeshwar Mandal assaulted with the butt of the pistol on the right hand of Sudhir Thakur, due to which his hand got fractured, Narendra Kumar alias Fantoos Mandal assaulted on the chest of Sudhir Thakur with the butt of his gun. Shivnandan fractured jaw of Sudhir Thakur by assaulting with butt of the gun. Anandi and Laddu Mandal made several attacks on the body of Sudhir Thakur by means of lathi. Sudhir Thakur fell down being injured. Informant and Sudhir Thakur raised alarm on which Ramchandra Thakur, Vikash Kumar alias Balmiki and Krishnadeo Yadav came there. All the accused persons thereafter fled away towards the village. Anandi and Laddu Mandal made several attacks on the body of Sudhir Thakur by means of lathi. Sudhir Thakur fell down being injured. Informant and Sudhir Thakur raised alarm on which Ramchandra Thakur, Vikash Kumar alias Balmiki and Krishnadeo Yadav came there. All the accused persons thereafter fled away towards the village. The motive behind the occurrence is said to be enmity for irrigation of the land because the accused persons used to restrain the informant and his brothers from irrigating the land. 3. Fardbeyan was recorded by Assistant Sub Inspector, Byas Roy, of Jamui Police Station, although the place of occurrence is at village Sahpur which falls within the jurisdiction of Mananpur (Chaman). Sudhir Thakur was taken to Sub-Divisional Hospital, Jamui for his treatment but he died therein course of his treatment. The Officer-in-Charge Jamui police station recorded the Jardbeyan of the informant and prepared inquest report and sent the dead body for post mortem and thereafter he sent all documents for institution of formal FIR at Lakhisarai police station. The officer-in-charge of Lakhisarai police station investigated the case, recorded statement of the witnesses and submitted charge-sheet on conclusion of investigation. Cognizance was taken in the case and the case was committed to the Court of Sessions for trial. The Trial Court has convicted and sentenced the appellants as stated above. 4. The prosecution in order to prove its case has examined altogether nine witnesses. PW 1, Sanjay Manjhi, has not stated anything about the occurrence. He has just proved his signature on fardbeyan which is Ext. 1. PWs 2, 3, 4 and 6 have been examined as eye-witnesses and PW 5 is the informant and also an eye-witness. PW 7, Anjani Kumar Sinha, has conducted the post mortem on the deadbody of Sudhir Thakur. PW 8 is the investigating officer and PW 9, /Byas Ray, A.S.I. Jamui police station has recorded the fardbeyan of the informant at Jamui Sub-divisional Hospital. All the seven appellants have been examined as defence witness in this case and all of them have denied the prosecution case and stated that they do not have any criminal antecedents. 5. PW 5 is the informant and the full brother of the deceased. He has stated that on 21.1.1998 he was returning to village Jhuria after irrigating his wheat field along with his brother Yogendra Thakur and Sudhir Thakur. 5. PW 5 is the informant and the full brother of the deceased. He has stated that on 21.1.1998 he was returning to village Jhuria after irrigating his wheat field along with his brother Yogendra Thakur and Sudhir Thakur. Sudhir was only one bamboo ahead of him. When they reached near the house of Shivan Das, the accused Suvindra Mandal, Suchit Mandal, Shiv Nandan Mandal, Anandi Mandal, Laddu Mandal, Makeshwar Mandal and Fantoos Mandal surrounded Sudhir. Suvindra Mandal and Suchit Mandal were armed with sword, accused Shivnandan with gun, Anandi and Laddu with lathi, Makeshwar with country made pistol and Fantoos was armed with gun. All the accused persons started assaulting Sudhir. Suvindra and Suchit assaulted with sword on the head of the Sudhir and his head was broken, Shivnandan assaulted on the jaw of sudhir and it was fractured. Makeshwar Mandal assaulted with the butt of his pistol and fractured right hand of Sudhir. Fantoos assaulted on the chest, belly and cheek of Sudhir. Anandi and Laddu assaulted with lathi. Informant raised alarm on which Yogendra, Bikash, Ram Chandra Thakur and Krishnadeo Yadav came there. Injured Sudhir was taken to Manapur station and from there to Jamui for his treatment. sudhir died at Jamui Hospital in course of his treatment. Police came to the Hospital on 21.8.1998 at 9 a.m. where his fardbeyan was recorded. PW 5 has admitted that the case has been lodged against him and his brothers for commission of train dacoity. PW 5 has also admitted in his cross-examination that he had no land dispute with the accused persons: The accused persons never claimed his land and he has never made any complaint against the accused persons in connection with his land. He has denied that when he reached at the place of occurrence the body of Sudhir was lying dead. A suggestion was given that the villagers of Banshipur had surrounded him and his brother because after eating at the shop they had not made payment for it and the case which has been instituted is false which has been denied. PW Nos. 2, 3, 4 and 6 have also in their examination in chief described the prosecution story in the similar manner as PW 5, the informant. 6. PW 2 is the full brother of deceased, Sudhir Thakur and the informant (PW 5). PW Nos. 2, 3, 4 and 6 have also in their examination in chief described the prosecution story in the similar manner as PW 5, the informant. 6. PW 2 is the full brother of deceased, Sudhir Thakur and the informant (PW 5). PW 2 has stated that on 20.8.1998 he had gone to irrigate the wheat field. On completion of irrigation he was returning along with his brother Mahendra Thakur and Sudhir Thakur. When he reached near the house of Shivan Das all the seven accused- appellants armed with gun, pistol, sword and lathi came there. Suvindra Mandal and Suchit Mandal assaulted with sword on the heard of his brother. Shivnandan Mandal assaulted with the butt of the gun on the jaw and fractured the jaw of Sudhir. Narendra Mandal attacked with country made pistol on the chest and abdomen of Sudhir. Makeshwar Mandal assaulted with the butt of the pistol on the right hand of the deceased Anandi and Laddu assaulted over entire body of Sudhir. Makeshwar also opened fire on him but he did not receive any fire arm injury as he was at a distance of 100 ft. His cousin came on hearing alarm. Sudhir was taken in injured condition to Jamui hospital where he died in course of his treatment at 10 p.m. PW 2 has stated that he was never examined by police. PW 2 has stated that the occurrence took place due to dispute in relation to Jawahar Rojgar Yojna. He has also stated the accused persons did not assault him and Mahendra Thakur. There was no land dispute with regard to irrigation in between the accused persons and the prosecution party. In his cross-examination he has further stated that in the year 1994 his cousin Bikash had taken contract under the Jawahar Rojgar Yojna but Sudhir had no dispute with the accused persons with respect to the contract taken by Bikas under the Jawahar Rojgar Yojna. 7. PW 3 has narrated the prosecution story in the similar way as stated by PW 2. This witness has stated that his statement was not recorded by the police. PW 3 has stated that while Sudhir was being taken in injured condition to Jamui hospital he had given telephonic message to Mananpur police station from the railway cabin. Since the officer-in-charge was not present, the information was given to the chowkidar. This witness has stated that his statement was not recorded by the police. PW 3 has stated that while Sudhir was being taken in injured condition to Jamui hospital he had given telephonic message to Mananpur police station from the railway cabin. Since the officer-in-charge was not present, the information was given to the chowkidar. He has also stated that he heard alarm and went at the place of occurrence. He saw the accused persons assaulting Sudhir Thakur. A suggestion was given to him that he has not made any such statement before the police which he has stated in his deposition in Court but it was denied. 8. PW 4 also in his examination-in- chief has repeated the prosecution story as stated in the FIR. He has stated that his statement was recorded by the police on 21.1.1998 at Jamui and also on 22.1.1998 when the officer-in-charge of Chanan police station came to his village. A suggestion was given to him that he has not witnessed the occurrence and he did not make any statement before the police as an eye-witness and when he reached at the place of occurrence Sudhir was injured and lying on the ground which he denied. 9. PW 6 has also narrated the prosecution story like PWs. 2,3,4 and 5. He has stated that his statement was recorded by the officer-in-charge of Chanan police station and also by Py. Superintendent of Police. According to PW 6 at the time of occurrence he. was standing at a distance of 100 ft. A suggestion was given to this witness that occurrence had taken place near the sweetmeat shop of Anandi but it was denied by him. He has also stated that he has not seen the deceased Sudhir Thakur eating at sweetmeat shop and never paid for the same. He denied that Sudhir Thakur was accused in several criminal cases. 10. PW 7 is the doctor Anjani Kumar Sinha, who was posted as Civil Assistant Surgeon, Sub-divisional Hospital, Jamui at the relevant time. He has stated that he has conducted the autopsy and also treated the deceased, so long he was alive. He found ante-mortem injuries on the deadbody of the deceased caused by hard blunt object which were sufficient to cause death. The ante-mortem injuries were: (1) Lacerated wound 3" x one and half inches x skin deep over left frontal region of scalp. He found ante-mortem injuries on the deadbody of the deceased caused by hard blunt object which were sufficient to cause death. The ante-mortem injuries were: (1) Lacerated wound 3" x one and half inches x skin deep over left frontal region of scalp. (2) Lacerated wound two and half inches x 1" up to bone deep over Lt. Temporal region of scalp. (3) Lacerated wound 2" x 1" x skin deep over occipital region of scalp. (4) One swelling over Rt. forearm 4" x 4" on dissection there were both bones in middle. (5) Multiple logtitunal lacerated on the back of chest in number 3" x 1". (6) Multiple Longtitunal Bruises over back of chest size 3" x 1". (7) Longitudnal Bruise one front of both thigh 2" x 1" and 5" x 1" size. PW 7 has stated that there was no gun shot injury and there was no particular feature on the body showing use of gun or sharp weapons. This witness has admitted that he had not mentioned the time of death of the deceased in the post mortem report. 11. PW 8 is the officer-in-charge of Chanan police station who has investigated the case. He stated that on 21.1.1998 in the evening when he came back at the police station he was informed that a message has been received from Mananpur Railway station that some altercation has taken place in between Thakurs and Mandais at village Sahpur. He made station diary entry bearing No. 294 and proceeded for Sahpur village. There he could not meet either of the party. No one was ready to get his fardbeyan recorded. In the next morning he came back to the police station and at that time the chowkidar from Jamui police station came with the fardbeyan and the inquest report. He started investigation, went to the place of occurrence and recorded the statement of the witnesses. At the place of occurrence he did not find any blood stain. PW 8 has admitted that Sanha entry No. 294 of 1998 is in his writing which is Ext. A. In the Sanha no one has been named as accused. In course of investigation he did not find any empty cartridges at the place of occurrence, or any specific mark showing the dispute regarding the irrigation between the parties. PW 8 has also stated that PWs. A. In the Sanha no one has been named as accused. In course of investigation he did not find any empty cartridges at the place of occurrence, or any specific mark showing the dispute regarding the irrigation between the parties. PW 8 has also stated that PWs. 2, 3, 4 and 5 did not state before him during investigation that they have seen the assault being made by the accused persons on Sudhir Thakur. They have stated that when they reached at the place of occurrence Sudhir was lying in injured condition. This witness has stated that the statement of PW 6 was not recorded by him. He has also stated that in connection with same occurrence a counter-case being case No. 28 of 1998 has been instituted on the basis of the fardbeyan of the accused Anandi Mandal which was also investigated by him and he has submitted charge-sheet. PW 8 has also stated that the deceased had a criminal record but none of the accused persons have any criminal history. 12. PW 9 is the officer-in-charge of Jamui police station. PW 9 has stated that on 21.1.1998 he was posted as Assistant Sub-Inspector at Jamui police station. On receiving information from the hospital he went there and recorded the fardbeyan of Mahendra Thakur. He prepared the inquest report of the deceased. In his cross-examination he has admitted that after he recorded the fardbeyan he came to know that the place of occurrence is within the jurisdiction of Chanan police station and he sent the fardbeyan and inquest report to the officer-in-charge of Lakhisarai police station. 13. The defence of. the appellants is that no such occurrence, as stated by the prosecution, has taken place. The genesis of occurrence as mentioned in the FIR has been shifted by the prosecution witnesses, even the alternative genesis has also not bee proved by them. The prosecution evidence regarding assault and injuries on the person of the deceased had not been corroborated by medical evidence. Ext. A has totally falsified the prosecution story and the manner of occurrence. 14. In the fardbeyan, the genesis of the dispute between the parties, resulting into the alleged occurrence is with regard to irrigation of land. The prosecution evidence regarding assault and injuries on the person of the deceased had not been corroborated by medical evidence. Ext. A has totally falsified the prosecution story and the manner of occurrence. 14. In the fardbeyan, the genesis of the dispute between the parties, resulting into the alleged occurrence is with regard to irrigation of land. PW 2 in his deposition has stated that there is no dispute relating to irrigation but the occurrence took place because there was dispute relating to contract taken by his cousin Bikas under Jawahar Rojgar Yojna. In his cross-examination he stated that the contract was taken by Bikash in the year 1994-95 but further he has stated that the deceased Sudhir had no dispute with the accused persons in connection with the contract taken by Bikash under the Jawahar Rojgar Yojna. PW 3 Bikash Thakur has not stated anything regarding any dispute with the accused persons in relation to his contract under the Jawahar Rojgar Yojna. PW 4 has although stated about the dispute relating to irrigation but in his cross-examination he failed to state any detail of the land. PW 5 has admitted that there was never any dispute with the accused persons in relation to land. On consideration of the evidence of the witnesses it is crystal clear that the motive and genesis as alleged in the fardbeyan have been shifted by them in their evidence before the Court. The changed genesis has also not been supported by the prosecution witnesses rather it can be said that the prosecution witnesses have failed to prove the genesis of the occurrence. 15. PWs. 2, 3, 4, 5 and 6 have depose in course of trial claiming to be eye-witnesses to the occurrence. Although they have stated that they saw the accused persons assaulting the deceased at different parts of his body with the weapons they had in their hands, a suggestion was given to these witnesses that in their statement under Section 161 of the Code of Criminal Procedure, none of them have stated that they have seen the accused persons assaulting the deceased. All of them stated that when they reached at the place of occurrence they saw the deceased lying on the ground in an injured condition. This suggestion was denied by the prosecution witnesses. This suggestion has been proved from the evidence of PW 8. All of them stated that when they reached at the place of occurrence they saw the deceased lying on the ground in an injured condition. This suggestion was denied by the prosecution witnesses. This suggestion has been proved from the evidence of PW 8. PW 8 has stated that PWs 2, 3, 4 and 5 have not stated before him that they have seen the accused persons assaulting the deceased. All of them stated that when they reached at the place of occurrence Sudhir was lying in an injured condition. PW 8 has also stated that PW 6 was never examined by police and this witness has come to depose for the first time in the Court. On consideration of evidence it is apparent that none of the prosecution witnesses, claiming themselves to be the eye-witnesses to the occurrence, have actually seen the occurrence. They have falsely stated before the Court that they are the eye-witnesses to the occurrence. In such" circumstances, reliance cannot be place on their evidence for conviction. 16. Learned counsel for the appellant has stated that the case of the prosecution has been falsified by Ext. A which is Sanha Entry No. 294 of 1998. PW 3 Bikash Kumar @ Balmiki has stated in his evidence that he gave telephonic message from railway cabin at Chaman police station informing about the occurrence. PW 8 has also stated that the telephonic message was received, . and on that basis Sanha entry No. 294 of 1998 (Ext. A) was made. From perusal of Ext. A it is evident that information which was given by PW 3 was the earliest in time. In this information no one was named as accused. Simple information was that at village Sahpur a firing has taken place, in which one person has been injured. From Ext. A it is apparent that after making Sanha entry the officer-in-charge (PW 8) proceeded for village Sahpur and there he searched for Bikash Kumar Thakur. Family members of Bikash Kumar Thakur informed that he has gone to Jamui for treatment of injured Sudhir Thakur. Villagers informed that in the evening of 20.1.1998 some occurrence had taken place in the sweetmeat shop of Anandi as Sudhir Thakur refused to make payment after eating in his shop. This Ext. Family members of Bikash Kumar Thakur informed that he has gone to Jamui for treatment of injured Sudhir Thakur. Villagers informed that in the evening of 20.1.1998 some occurrence had taken place in the sweetmeat shop of Anandi as Sudhir Thakur refused to make payment after eating in his shop. This Ext. A, which is the document of prosecution, totally demolishes the prosecution case in which it has been stated that the occurrence took place on account of dispute in relation to irrigation of the land. PW 8 has also stated that with regard to some occurrence, police case bearing No. 28 of 1998 has been instituted on the basis of the Jardbeyan of Anandi Mandal. This case has also been investigated by him and charge-sheet has bee submitted against the accused persons named in the case. All this evidence is sufficient to make the case of the prosecution doubtful. 17. It has also been submitted by the counsel for the appellants that the medical evidence does not corroborate the evidence of the prosecution witnesses regarding the weapons used by the accused persons and the assault made on the person of the deceased. All the witnesses have stated that Suvindra and Suchit assaulted with sword and other accused persons assaulted with gun pistol and lathi. PW 7 the doctor has stated in his evidence that there was no particular feature on the body of the deceased showing use of gun, lathi and sword i.e. the weapons used. 18. Considering all evidence the prosecution has not been able to prove its case regarding genesis of occurrence. Injuries as stated by the witnesses have not bee corroborated by the evidence of PW 7 and the post mortem report. Ext. A also demolishes the case of the prosecution regarding manner of occurrence. In the facts and circumstances, it is not a fit case to uphold the judgment of conviction. The appeal is accordingly allowed. The judgment of conviction and the order of sentence are set aside. The appellants Suvindra Mandal, Makeshwar Mandal, Anandi Mandal, Laddu Mandal1 and Suchit Mandal are on bail and they are discharged from liability of their bail bonds. Appellants Shiv Nandan Mandal and Narendra Kumar @ Fantoos Mandal are in custody. They are directed to be released forthwith if not required in any other case.Appeal allowed accordingly.