Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 483 (PAT)

Kartik Mandal v. State Of Bihar

2007-03-08

ABHIJIT SINHA, CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramaull Kumar Prasad and Abhijit Slnha JJ. 1. The judgment and order dated 15th of March, 2004 passed by the 3rd Additional Sessions Judge, Katihar in Sessions Trial No. 9 of 2002 inflicting the capital punishment, has necessitated this reference under Sec.366 of the Code of Criminal Procedure. By the impugned judgment, Kartik Mandal, Awadhesh Mandal and Sikandar Mahato have been found guilty of offence under Sec.396 of the Indian Penal Code and sentenced to death. Kartik Mandal, Awadhesh Mandal and Sikandar Mahato, aggrieved by their conviction, have also preferred two separate appeals and the appeal preferred by Kartik Mandal has been registered as Cr. Appeal No. 219 of 2004, whereas the appeal preferred by Awadhesh Mandal and Sikandar Mahato has given rise to Cr. Appeal No. 231 of 2004. 2. The Death Reference and both the appeals were heard together and they are being disposed of by this common judgment. 3. Prosecution started on the basis of a fardbeyan given by Jagdish Prasad Jaiswal (PW 8) before the Officer-in-charge of Kursela Police Station on 15.6.2001 at 6.45 p.m. According to the informant on 5.6.2001 at 6.30 p.m., while he along with his son Uttam Kumar alias Pinku were at their grain shop situated at Kursela Naya Chowk, Durga Hat within Kursela Police Station, five accused persons namely, Kartik Mandal, Umesh Mandal, Sikandar Mahato, Awadhesh Mandal and Jhirka alias Indradeo Mandal, suddenly came in the shop from the eastern direction. Kartik Mandal pulled out a country made pistol from his waist and pointing towards the informant demanded money. Out of fear, according to the informant, he opened his cash-box took out Rs. 9600/-from it and handed over the same to accused Sikandar Mahato. Seeing this, informants son Uttam Kumar alias Pinku protested and attempted and succeeded in apprehending accused Kartik Mandal. Umesh Mandal pulled out the country made pistol from his waist, fired at him causing injury on the chest. Uttam Kumar alias Pinku fell down and died there. All the accused persons fled away in the east towards orchard. 4. On hulla peoples of the vicinity collected and the Officer-in-charge along with armed forces arrived and accused Kartik Mandal was apprehended, while fleeing away. However, other accused persons managed to flee away. Uttam Kumar alias Pinku fell down and died there. All the accused persons fled away in the east towards orchard. 4. On hulla peoples of the vicinity collected and the Officer-in-charge along with armed forces arrived and accused Kartik Mandal was apprehended, while fleeing away. However, other accused persons managed to flee away. Apprehended accused, according to the informant, was searched in presence of two witnesses, namely, Rajiv Kumar Choud-hary (PW 1) and Mantu Kumar (PW 6) and from his waist, unlicensed country made pistol was recovered. 5. On the basis of the aforesaid statement Kursela P.S. Case No. 31 of 2001 was registered under Sec.396 of the Indian Penal Code and 25(1-A) (1-b), 26/35 of the Arms Act. After investigation police submitted charge-sheet against the three accused persons with whom we are concerned in this appeal. Charge-sheet was also submitted against other two accused persons, namely, Umesh Mandal and Jhirka alias Indradeo Mandal showing them to be absconders. Ultimately, these accused persons aforesaid were committed to the Court of Sessions to face the trial, where they were charged for committing dacoity and while doing so, committing murder of Uttam Kumar alias Pinku punishable under Sec.396 of the Indian Penal Code. They were also charged for possessing country made pistol loaded with live cartridges punishable under Sections 25(l)(a) and 27 read with Sec.35 of the Arms Act. 6. The accused persons denied the charges and claimed to be tried. 7. In support of the case prosecution has examined altogether nine witnesses. PW 1 Rajiv Kumar Choudhary and PW 8 the informant of the case had narrated the entire incident. PW 2 Onkar Kumar Mishra, at the relevant time, was In the market to purchase articles and had seen the accused persons fleeing away from the place of occurrence. He is also a witness to the oral dying declaration of the deceased Uttam Kumar. PW 3 Pankaj Kumar is the son of the informant and brother of the deceased and saw the accused Jhirka alias Indradeo Mandal fleeing away from the place of occurrence. He had narrated about the Informant disclosing the names of the accused persons to him while he came to the place of occurrence. PW 6 Mantu Kumar Sah is a witness to the seizure of the country made pistol from the possession of the apprehended accused Kartik Mandal. He had narrated about the Informant disclosing the names of the accused persons to him while he came to the place of occurrence. PW 6 Mantu Kumar Sah is a witness to the seizure of the country made pistol from the possession of the apprehended accused Kartik Mandal. PW 7 Pankaj Kumar Thakur is another witness who had seen the accused persons fleeing away from the place of occurrence and further he is the witness to the inquest as also the seizure of country made pistol from accused Kartik Mandal. PW 9 is Dr. Ram Naresh Prasad who had conducted the post-mortem examination on the dead body of the deceased Uttam Kumar alias Pinku. PWs 2, 3 and 7 besides PW 4 Dlnesh Kumar Choudhary and PW 5 Ram Naraln Rai have also stated that the informant and his son had apprehended accused Kartik Mandal. 8. These accused persons denied the allegation and from the trend of cross-examination, their defence seems to be that while they were purchasing kerosene oil in the market, a dacolty took place in the grain shop of the informant, and they being known from before, have been falsely implicated in the case. However, no defence witness has been examined. 9. The Court below, an appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts and accordingly, convicted and sentenced the accused persons as above. 10. PW 1 Rajiv Kumar Choudhary is a witness to the occurrence and owner of adjoining shop, where the occurrence had taken place. According to this witness, on the date of occurrence at about 6.30 p.m., he heard the gun sound, while he was sitting on a bench outside his grocery shop and saw two accused persons outside the shop and three accused persons inside the shop, all armed with country made pistols. From amongst the accused persons, he had recognized accused Sikandar Mahato and Awadhesh Mandal besides Jhirka alias Indradeo Mandal and Umesh Mandal. According to him, all the aforesaid accused persons brandishing pistols in their hands fled towards the orchard, and despite chase, they fled away in the cover of darkness. However, accused Kartik Mandal was caught hold by Uttam Kumar and his father informed Jagdish Prasad Jaiswal. According to him, all the aforesaid accused persons brandishing pistols in their hands fled towards the orchard, and despite chase, they fled away in the cover of darkness. However, accused Kartik Mandal was caught hold by Uttam Kumar and his father informed Jagdish Prasad Jaiswal. He has also stated that Uttam Kumar received gunshot injury and stated in injured condition that accused Umesh Mandal had fired at him. He also stated about the loot of Rs. 9600.00 from the shop. In the cross-examination, he had stated that normally 500 to 1000 persons happen to be in the Hat, but due to drizzle at the time of incident, only four people were there. He had denied the suggestion that, in fact, Kartik Mandal was illegally apprehended and beaten saying chor-chor. 11. PW 2 Onkar Kumar Mishra had stated in his evidence that while he was purchasing grocery articles from the shop of PW 5 Ram Narain Rai, he heard the sound of firing and when he came out, saw two persons armed with fire arm fleeing away from the shop of the informant. According to him, Uttam Kumar@ Pinku and his father, the informant had caught hold of one of the accused persons and Uttam Kumar stated in injured condition that he was shot at by accused Umesh Mandal. He claimed to have identified all the three accused persons herein besides accused Jhrika Mandal and Umesh Mandal. According to him, on account of the gunshot injury, Uttam Kumar died at the place of occurrence itself. 12. In paragraph No. 7 of his cross-examination, he had stated that he saw the accused persons fleeing away from a distance of 10-15 steps in the eastern direction and beside the accused persons, other persons gathered at the place, were also fleeing away. In paragraph No. 14 of his cross-examination, he had stated that neither Uttam Kumar nor the informant told him anything about Awadhesh Mandal. He had denied the suggestion that being a friend of Uttam Kumar, he had given false evidence. He has also stated about the presence of PW 1 Rajiv Kumar Choudhary and PW 5 Ram Narain Rai at his grain-shop. 13. PW 3 Pankaj Kumar is the son of the informant and brother of the deceased. He had denied the suggestion that being a friend of Uttam Kumar, he had given false evidence. He has also stated about the presence of PW 1 Rajiv Kumar Choudhary and PW 5 Ram Narain Rai at his grain-shop. 13. PW 3 Pankaj Kumar is the son of the informant and brother of the deceased. According to him while he was sitting inside the shop of his maternal uncle, which was at a distance of about 40 meters from the shop of the informant, where occurrence had taken place, he heard the sound of firing whereupon he came out and told by PW 7 Pankaj Kumar Thakur that dacoity is being committed in his shop. At this, he ran towards his shop and in the way, he saw accused Jhirka @ Indradeo Mandal fleeing way from there. He saw his brother Uttam Kumar in injured condition and his father had caught hold of accused Kartik Mandal. In the meanwhile police had arrived and recovered a pistol from the waist of accused Kartik Mandal in his presence. According to him, the apprehended accused disclosed the names of his accomplishes, namely, accused Awadhesh Mandal, Sikandar Mahto, Jhirka @ Indradeo Mandal and Umesh Mandal. 14. PW 4 Dinesh Kumar Choudhary is the owner of a nearby shop and according to him, on hearing the sound of firing when he came out, he saw that the informant and one of his injured sons, had caught hold of accused Kartik Mandal. He had identified said Kartik Mandal during the trial. 15. PW 5 Ram Narain Rai is the owner of another grocery shop in the Kursela Bazar where the occurrence had taken place and has stated in his evidence that on the date of occurrence at about 6.30 p.m., while he was in his shop heard the sound of firing and when he came out, saw that informant and his son had caught hold of accused Kartik Mandal. He identified him during the trial. 16. PW 6 Mantu Kumar is a witness to the seizure of a unlicensed loaded country made pistol from the waist of the apprehended accused Kartik Mandal. 17. He identified him during the trial. 16. PW 6 Mantu Kumar is a witness to the seizure of a unlicensed loaded country made pistol from the waist of the apprehended accused Kartik Mandal. 17. PW 7 Pankaj Kumar Thakur has stated in his evidence that on the date of occurrence at about 6.30 p.m. while it was drizzling, he heard the sound of firing and when he went to the shop of the informant, saw four accused persons, namely, Awadhesh Mandal, Sikandar Mahto fleeing away from the place of occurrence and informant Jagdish Prasad Jaiswal had caught hold of one of the accused persons, namely, Kartik Mandal. He has also stated that Uttam Kumar sustaining gunshot injury had died. According to him, informant stated to him that the accused persons had looted Rs. 9600.00 at pistol point and on resistance by Uttam Kumar, accused Umesh Mandal shot him dead. In paragraph No. 12 of his cross-examination, he has stated that it was drizzling at the time of occurrence. 18. PW 8 Jagdish Prasad Jaiswal is the informant of the case in whose shop the dacoity had taken place. He has stated in his evidence that while he along with his son Uttam Kumar was sitting in the shop, three accused persons, namely, Kartik Mandal, Umesh Mandal, Sikandar Mahto intruded into the shop and two accused persons, namely, Awadhesh Mandal and Jhirka @ Indradeo Mandal remained outside the shop and all of them were armed with pistol. Kartik Mandal pointed pistol at him and using filthy language, demanded money, whereupon he took out Rs. 9600/-from the cash box and handed over the same which was picked up by accused Sikandar Mahto. However, his son Uttam Kumar attempted to resist and pounced upon the miscreants in order to apprehend him when accused Umesh Mandal shot at him causing injury in the middle of his chest. On hearing the sound of firing, the miscreants fled away. He has also stated that he apprehended Kartik Mandal and his son Uttam Kumar who had received gunshot injury dashed on accused Kartik Mandal in a fit of temper and after wraping a towel around Kartik Mandal, sat on him. He also raised hulla but later on, got unconscious and ultimately, died. 19. He has also stated that he apprehended Kartik Mandal and his son Uttam Kumar who had received gunshot injury dashed on accused Kartik Mandal in a fit of temper and after wraping a towel around Kartik Mandal, sat on him. He also raised hulla but later on, got unconscious and ultimately, died. 19. According to this witness, on hulla being raised, 8 to 10 persons including PW 2 Onkar Kumar Mishra, PW 5 Ram Narain Rai and PW 6 Mantu Kumar assembled at the place of occurrence. On search of the person of accused Kartik Mandal, a loaded country made pistol was recovered from his possession. In his cross-examination, he has stated that the accused persons who were standing outside the shop fled away just after hearing the sound of firing. He has further stated that his son dashed on accused Kartik Mandal on the ground and he overpowered him with the help of a towel. He has further stated in paragraph No. 15 of his cross-examination that the market was closed earlier due to rain. 20. PW 9 Dr. Ram Naresh Prasad Singh, at the relevant time, was posted as Medical Officer at Sadar Hospital, Katihar and conducted the post-mortem examination on the dead body of Uttam Kumar on 16.1.2001 at 1.45 p.m. and found wound on the back of chest of the size 1" x 1/2" x cavity deep. He found margin of the said wound inverted and concluded that it was the wound of entry. He also found extensive lacerated wound on left axilla of the size 1.1/2" x 1/2" x cavity deep and its margin inverted and stated that same was wound of exit. On dissection of head and neck, he found thorasic cavity full of blood and left lung raptured. He also found the right lung and the heart intact and empty. In the cross-examination, he has stated that the bullet entered from the back side. 21. Mr. Kanhaiya Prasad Singh, Senior Advocate appears on behalf of the appellant in Cr. Appeal No. 231 of 2004, whereas appellant of Cr. Appeal No. 219 of 2004 is represented by Mr. Rajendra Prasad Sah. They have also resisted the reference made by the learned Judge for confirmation of the death sentence. Main argument has been advanced by Mr. Singh which has been adopted by Mr. Sah. 22. Mr. Appeal No. 231 of 2004, whereas appellant of Cr. Appeal No. 219 of 2004 is represented by Mr. Rajendra Prasad Sah. They have also resisted the reference made by the learned Judge for confirmation of the death sentence. Main argument has been advanced by Mr. Singh which has been adopted by Mr. Sah. 22. Mr. Singh submits that the dacoity might have taken place in the shop of the informant in which Uttam Kumar was murdered, but simply on the ground that the accused persons were seen fleeing away from the place of occurrence will not lead to the conclusion that they had committed dacoity. In this connection, he has drawn our attention to the evidence of PW 2 Onkar Kumar Mishra in paragraph No. 7 of his cross-examination, where he has stated that not only the accused persons were fleeing away but other persons who had gathered there, were also fleeing away hither and thither out of fear in different directions. He further submits that according to the prosecution itself, the occurrence had taken place in the bazar and these accused persons being the residence of a nearby place, their presence in the market itself, shall not lead to irresistible conclusion that they had committed the murder. He also points out that it is unexpected that the accused persons would choose to commit dacoity and murder of a person in course thereof in a weekly market day. 23. Mr. Lala Kailahs Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State submits that these accused persons were identified by PW 1 Rajiv Kumar Choudhary and PW 8 Jagdish Prasad Jaiswal during the course of commission of the crime and other witnesses seeing them fleeing away from the place of occurrence, leads to only one conclusion that the crime has been committed by these accused persons. He points out that although the occurrence had taken place at a weekly market but it has come in the evidence that it rained on that day and on account thereof, very few people were in the market. In this connection, Mr. He points out that although the occurrence had taken place at a weekly market but it has come in the evidence that it rained on that day and on account thereof, very few people were in the market. In this connection, Mr. Prasad has drawn our attention to the evidence of PW 1 Rajiv Kumar Choudhary in paragraph No. 3 of his cross-examination where he has clearly stated that normally 500 to 1000 persons happen to be in the market but on account of rain, only four people were there at the time of the occurrence. He has also drawn our attention to the evidence of PW 7 Pankaj Kumar Thakur in paragraph No. 12 of his cross-examination, where he has stated that the occurrence had taken place on the day of hatia, but as it was drizzling, there was no gathering in the market. Our attention has also been drawn to the evidence of PW 8 Jagdish Prasad Jaiswal in paragraph No. 15 of his cross-examination, where he has clearly stated that hatia was closed due to rain and no one was present there. 24. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Singh. PW 1 Rajiv Kumar Choudhary and PW 8 Jagdish Prasad Jaiswal have clearly seen these persons committing the crime. Other witnesses have seen them fleeing away from the place of occurrence. In fact, accused Kartik Mandal was apprehended at the place of occurrence itself and from his possession, loaded country made pistol was recovered. Hence it cannot be said that these accused persons were apprehended only on suspicion on the ground that they were known to the informant from before. 25. Mr. Singh, then contends that according to the prosecution, deceased Uttam Kumar had pounced upon appellant Kartik Mandal putting towel around him, but this part of the prosecution story is absolutely improbable. He points out that according to the informant, deceased was shot at the chest, whereas the doctor had found the wound of entry in the back. In this connection, our attention has been drawn to the evidence of PW 8 Jagdish Prasad Jaiswal in para 4 of his evidence, wherein he has stated that his son Uttam Kumar pounced upon a miscreant to catch hold of him and he received gunshot in the middle of his chest. In this connection, our attention has been drawn to the evidence of PW 8 Jagdish Prasad Jaiswal in para 4 of his evidence, wherein he has stated that his son Uttam Kumar pounced upon a miscreant to catch hold of him and he received gunshot in the middle of his chest. He has also drawn our attention to the evidence of PW 9 Dr. Ram Naresh Prasad Singh, who had conducted the post-mortem examination to para 8 of his cross-examination wherein he has categorically stated that bullet entered from the back side. 26. Mr. Prasad, answering to the aforesaid submission points out that about the condition of the deceased Uttam Kumar, no question was put to the doctor. He points out that the doctor had nowhere stated that after the injury which the deceased had sustained, he was not in a position to make attempt to apprehend the accused person. He further points out that merely the fact that the doctor had found the wound of entry in the back of the deceased itself, shall not create any doubt in regard to the veracity of the case of the prosecution. 27. Having considered the rival submission, we do not find any substance in the submission of Mr. Singh. True it is that the deceased Uttam Kumar has sustained gunshot injury which ultimately, caused his death, but from that, it cannot be said that he could not have made any attempt to apprehend the accused persons. The informant had clearly stated that in a fit of anger, the deceased made attempt to apprehend the accused persons and the informant also did the same. In our opinion, mere finding of the wound of entry at the back of the deceased, shall not create any doubt to the case of the prosecution. 28. While assailing the conviction of Awadhesh Mandal, Mr. Singh submits that according to the prosecution itself, this accused remained outside the shop and as such, it cannot be said that he had any hand in the crime. In this connection, he has drawn our attention to the evidence of PW 8 Jagdish Prasad Jaiswal in para 2 of his evidence, wherein he has stated that accused Awadhesh Mandal remained outside the shop. In this connection, he has drawn our attention to the evidence of PW 8 Jagdish Prasad Jaiswal in para 2 of his evidence, wherein he has stated that accused Awadhesh Mandal remained outside the shop. He has also drawn our attention to the evidence of this witness in para 17 of his cross-examination, wherein he has stated that those accused persons standing outside the shop, fled away just after hearing the sound of firing. This, according to Mr. Singh, clearly proves that he had no hand in the crime. He has also drawn our attention to the evidence of PW 2 Onkar Kumar Mishra, in para 19 of his cross-examination, wherein he has stated that accused Sikandar Mahto used to sell rice in the same market. 29. We do not find any substance in the submission of Mr. Singh. It is well settled that those who wait and watch are equally responsible. PW 8 had clearly stated that accused Awadhesh Mandal was besides other accused persons was armed with pistol. He was also seen fleeing away from the place of occurrence. Hence his involvement in the crime is writ large. 30. With regard to the submission made on behalf of the accused persons, that they have been falsely implicated in the case, we find that the accused persons were known to the informant and the witnesses from before and there is nothing on the record to show that any enmity between them existed and hence, their false implication is absolutely ruled out. Prompt reporting of the First Information Report lends support to the case of the prosecution. Witnesses to the occurrence are shopkeepers in the market and their presence at the place of occurrence is quite natural. The informant has lost his son and it is unlikely that he will implicate the accused persons herein for no rhymes or reason. 31. Mr. Sah surprised us by submitting that these accused persons have been convicted and sentenced as above, but they were not asked to explain the evidence appearing against them under Sec.313 of the Code of Criminal Procedure. In this connection he has drawn our attention to the examination of the accused persons and submits that the accused persons have been examined under Sec.281 of the Code of Criminal Procedure and not under Sec.313 of the Code of Criminal Procedure. 32. In this connection he has drawn our attention to the examination of the accused persons and submits that the accused persons have been examined under Sec.281 of the Code of Criminal Procedure and not under Sec.313 of the Code of Criminal Procedure. 32. True it is that the forms in which these accused persons, statements were recorded indicate that they were examined under Sec.281 of the Code of Criminal Procedure. However, from the order dated 11.2.2004 of the learned Judge, it is evident that these three accused persons, statements have been recorded under Sec.313 of the Code of Criminal Procedure. It is well settled that mere wrong mentioning of the provision itself, shall have no bearing. Sec.313 of the Code of Criminal Procedure, inter alia, provides that during the trial, for the purpose of enabling the accused persons to explain any circumstances appearing in the evidence against him, the Court shall examine them. We have perused the record and have found that statements of the accused persons conform to the requirement of Sec.313 of the Code of Criminal Procedure. Hence, this submission of Mr. Sah has no leg to stand. 33. Mr. Singh as also Mr. Sah contend that it is not a fit case in which the death sentence deserves to be confirmed. 34. Mr. Lala Kailash Bihari Prasad very fairly concedes that the case in hand cannot be said to be one of the rarest of the rare case calling for extreme penalty of death. We agree with the submission. It is well settled that death sentence is to be inflicted in rarest of the rare cases. Crime being brutal and heinous itself, do not turn the scale towards the death sentence. In our opinion every crime is bad. We are of the opinion that facts of the present case do not come within the purview of the rarest of the rare case calling for the extreme penalty of death. We are of the opinion that the sentence of rigorous imprisonment for life shall meet the ends of justice. 35. Accordingly the reference made by the learned Judge for confirmation of the death sentence is answered in negative and their conviction under Sec.396 of the Indian Penal Code is maintained but the sentence is altered to that of imprisonment for life. 36. 35. Accordingly the reference made by the learned Judge for confirmation of the death sentence is answered in negative and their conviction under Sec.396 of the Indian Penal Code is maintained but the sentence is altered to that of imprisonment for life. 36. In the result, the reference is rejected and both the criminal appeals preferred by the accused persons are dismissed with the modification in the sentence aforesaid. Appeal dismissed with sentence modified.