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2009 DIGILAW 1009 (JHR)

Sujan Mandal v. State of Jharkhand

2009-07-22

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court: Both the appeals arising out of the common judgment were heard together and are being disposed of by this common judgment. The appellants were put on trial for committing murder of one Ranjit Mandal in furtherance of their common intention. Learned trial court having found the appellants guilty for the offence under section 302/34 of the Indian Penal Code sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.2000/-and in default to undergo rigorous imprisonment for one year. The case of the prosecution is that on 31.8.1999 Ranjit Mandal, husband of the informant Parul Mandal (P.W.9) had gone to purchase Battery at about 7.15 P.M. and as such, the informant by taking lantern was waiting at her verandah for him to come. After 15 minutes when Ranjit Mandal after purchasing Battery reached near the house of Barun Mandal, the appellant Sujan Mandal shot at him, upon which Ranjit Mandal ran after him by shouting that he has been shot at but he fell down after going to some distance. On seeing all this, when the informant rushed to that place, she found other appellants fleeing towards their house. On reaching there she found her husband injured who disclosed that it was Sujan Mandal, who had shot at him. Thereafter she with the help of others brought her husband to her house where her husband succumbed to the injuries. On receiving such information when M. Singh, Officer-in-Charge of Hiranpur Police Station came to the house of the informant, he recorded the Fardbeyan of the informant on 1.9.1999 at about 2.30 hours wherein she stated that accused persons committed murder of her husband as the accused persons who were not allowed to cut a palm tree belonging to the deceased leading to altercation at several occasions had extended threat of dire consequence. On the basis of Fardbeyn, a formal first information report (Ext.5) was drawn whereby case was instituted against the appellants and the matter was taken up for investigation by the Investigating Officer (not examined), who on holding inquest on the dead body prepared inquest report. The Investigating Officer also seized Battery and blood stained earth from the place of occurrence under the seizure list in presence of Gour Mandal (P.W.10). The Investigating Officer also seized Battery and blood stained earth from the place of occurrence under the seizure list in presence of Gour Mandal (P.W.10). When the dead body was sent for post mortem examination, it was done by Dr.Sushil Kumar Mehrotra (P.W.7), who on holding autopsy did find one ante mortem wound of entry of size 2.5 cm. x 1.5 cm. with tattooing and charring 16 cm. x 16 cm. diameter surrounding the wound corresponding to shirt and ganji. Some liquid blood was found coming through the wound . One wound of exist of size 2.0 cm. x 1 cm was found near intercostals space 2 cm right to the midline with corresponding whole in ganji. On internal examination fracture of 4th right rib and rupture of lower lobe of right lung with liquid blood in the right side of thoracic cavity were found. According to opinion of the Doctor, death was caused by haemorrhage and shock due to firearms injury shot at from close range. Post mortem report has been proved as Ex.2. After completion of the investigation, police submitted charge sheet against the appellants whereupon cognizance of the offence was taken. On committal of the case to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. The prosecution in order to prove the charges examined altogether ten witnesses. Of them, Parul Devi (P.W.9) the informant claimed herself to be eye witness to the occurrence. P.W.1, Gour Mandal, father of the deceased has testified that on hearing sound of firing , when he came to the place of occurrence, he heard Ranjit saying that Sujan Mandal on the order of Barun Mandal had shot at him whereas P.W.8 Shambhu Mandal, brother of the deceased has testified that his brother was saying that it was Sujan Mandal, who had fired shot at him. Other witnesses P.Ws. 2, 3,4, 5 and 6 all resident of the same place have turned hostile. However, the trial court on placing implicit reliance upon the testimonies of P.Ws.’ 8 and 9 did find the appellants guilty and hence, recorded the judgment of conviction and order of sentence as aforesaid. Other witnesses P.Ws. 2, 3,4, 5 and 6 all resident of the same place have turned hostile. However, the trial court on placing implicit reliance upon the testimonies of P.Ws.’ 8 and 9 did find the appellants guilty and hence, recorded the judgment of conviction and order of sentence as aforesaid. Learned counsel appearing for the appellants submits that though P.W.9, widow of the deceased has claimed herself to be an eye witness but her claim of seeing the occurrence from her verandah gets belied from the evidence of P.W.1, who is none other than father of the deceased. Moreover, her testimony of occurrence taking place near her house gets falsified from the fact that the place of occurrence situates 30 yards away from her house and as such, when the occurrence took place in the night at such a far distance from her house, she would never be in position to see the occurrence. Further submission is that other part of the prosecution story relating to disclosure made by the deceased about the complicity of the two persons, namely, Barun Mandal and Sujan Mandal never inspires confidence to be believed as the testimonies of the witnesses in this regard are full of infirmities, still the trial court believed that part of the story and hence, the trial court committed illegality in finding the appellants guilty and, therefore, order of conviction and sentence is fit to be set aside. Heard learned counsel appearing for the State also. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that Parul Devi (P.W.9), widow of the deceased has claimed herself to be an eye witness as, according to her, when her husband left home for purchasing Battery, she was at her verandah by taking lantern and did notice the presence of Amulya Mandal and Ajay Mandal over there though at some distance. She also noticed the appellant Sujan Mandal and his father Barun Mandal standing there and when her husband came near them, Sujan Mandal shot at him on being exhorted by the appellant Barun Mandal. Her husband on receiving gunshot injury fell down where several villagers including her father-in-law, P.W.1 and brother-in-law, P.W.8 reached, who brought her husband (Ranjit Mandal) to her house where her husband disclosed before the villagers that it was Sujan Mandal who had shot at him. Her husband on receiving gunshot injury fell down where several villagers including her father-in-law, P.W.1 and brother-in-law, P.W.8 reached, who brought her husband (Ranjit Mandal) to her house where her husband disclosed before the villagers that it was Sujan Mandal who had shot at him. This witness, at the first instance, disclosed in her cross-examination that her husband was shot at near Bamboo tree which is 10 ft. away but at the second instance, she disclosed that the place of occurrence was near the house of one Choukidar, namely, Jatin, whose house according to herself was 30 yards away from her house which fact gets substantiated from the entry made in the seizure list which shows that the dead body was found 30 yards away from the house of Barun Mandal whose house is adjacent to the house of the deceased and thus, this fact certainly indicates that the occurrence never took place near the house of the deceased as has been deposed by P.W.1, rather occurrence seems to have taken place at least 30 yards away from her house and in that event, informant would certainly not be in position to see the occurrence particularly when it was dark which fact has surfaced from the evidence of P.W.1 according to whom she was with the lantern at her varanda at the time of occurrence which does suggest that darkness must have set in by that time. That apart from the evidence of one of the witnesses, P.W.6, we find that at the time of occurrence it was quite dark. Apart from that, claim of P.W.9 being present at the verandah of the house gets belied from the evidence of P.W.1, who is none other than father of the deceased, who has testified that when he heard sound of firing, he was at the verandah and all the members were inside the house and as per his evidence also place of occurrence was quite far away from his house. Had P.W.9, as she has claimed, been at verandah, P.W.1 must have said about her presence at verandah. Thus, testimony of P.W.1 falsifies the evidence of P.W.9 that she saw the accused persons committing murder of the deceased. Had P.W.9, as she has claimed, been at verandah, P.W.1 must have said about her presence at verandah. Thus, testimony of P.W.1 falsifies the evidence of P.W.9 that she saw the accused persons committing murder of the deceased. Now coming to other aspect of the prosecution case where it has been projected that when the witnesses came to the place of occurrence where the deceased had fallen on receiving upon gunshot injury, the deceased disclosed to them that it was Sujan Mandal, who on the order of Barun Mandal fired shot at him but this piece of evidence is also full of infirmities. So far dying declaration is concerned, it is considered to be a secred statement given by a dying man who is not supposed to tell a lie at that point of time and, therefore, much value is to be attached to a dying declaration specially when it is corroborated by other independent witness. But before placing reliance it must inspire confidence so as to make it safe to act upon it. In the instant case, as per the evidence of P.W.1, when on hearing sound of gunshot, he came to the place of occurrence, he found his son Ranjit Mandal lying injured who disclosed to him and other persons who had come there that it was Sujan Mandal, who on the order of Barun Mandal fired shot at him but this fact never gets corroboration from the evidence of P.W.9 as, according to her, when she reached at the place where her husband had fallen on the ground after receiving gunshot injury, her father-in-law (P.W.1) and brother-in-law (P.W.8) also reached there and then they took her husband to the house where her husband disclosed that it was Sujan Mandal, who on the order of Barun Mandal had shot at him but the evidence of her brother-in-law Shambhu Mandal (P.W.8) is quite otherwise where he in his cross-examination says that when he reached at the place of occurrence, his brother in presence of several villagers was saying that he was shot at. It be noted that the witness is conspicuously silent over the name of the assailant. Furthermore he states that when with the help of other villagers, he brought his brother Ranjit Mandal to his house, his brother did not utter a single word at the house. It be noted that the witness is conspicuously silent over the name of the assailant. Furthermore he states that when with the help of other villagers, he brought his brother Ranjit Mandal to his house, his brother did not utter a single word at the house. Thus, inconsistency in the evidence in this regard is apparent on the face of record where one witness says that the deceased disclosed about the name of the assailant at the place of occurrence whereas key witness, i.e, P.W.9 says that it was disclosed at the house. That apart, P.W.9 in her fardbeyan says that her husband disclosed that it was Sujan Mandal, who had fired shot at him. She in her fardbeyan has never said about any role being played by Barun Mandal. Above all, the kind of injury which the deceased received due to gunshot injury causing rupture of the lower lobe of the right lung with liquid blood in the right side of the thoracic cavity, it would be always doubtful as to whether the deceased in such condition would be in position to utter a single word. This doubt further deepens in view of the evidence of Doctor (P.W.7), who has testified that generally the person sustaining gunshot injury from such a close range would not be in position to give any statement as there would be possibility of instant death. For the reasons discussed above, the theory of the dying declaration propounded by the prosecution does not inspire confidence at all to be believed and hence, the prosecution can be said to have completely failed to establish the charges against any of the appellants. In that view of the matter, the impugned judgment of conviction and order of sentence is hereby set aside. In the result, all the appellants are acquitted of the charges levelled against them. The appellant Sujan Mandal is directed to be released forthwith, if not wanted in any other case whereas other appellants are discharged from the liability of the bail bonds. Consequently, both the appeals are allowed.