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2012 DIGILAW 860 (JHR)

Kishore Mandal v. State of Jharkhand

2012-06-26

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT This appeal arises from the judgment dated 25.09.2003 passed by the learned 1st Addl. Sessions Judge, Jamtara in S.C. Case No.05 of 2001/172 of 2001 convicting the appellant under Sections 302/201 and sentencing him to undergo R.I. for life under Section 302 I.P.C. 2. The prosecution case in brief is that Fatik Mandal (P.W.9) lodged a 'Fard Bayan' on 20.05.2001 at 10:30 a.m. before the police that in the previous night i.e. on 19.05.2001 when he was going to sleep after taking meals at about 9:15 p.m., his son Sanjay Mandal (deceased) went saying that he was going to watch television in the house of Subodh Mandal. When in the next morning Sanjay did not return to his home, the informant went to search him. P.Ws. 1,2 & 3 told him that at about 10:00 p.m. Sanjay and the appellant were sitting on a “Chabutara”. The appellant asked P.Ws. 1,2 & 3 also to accompany him towards the pond to which they refused then the appellant convinced Sanjay and took him towards pond and accordingly the informant went towards pond along with others. They found blood stains on the earth at one place. There were also sign of dragging. They also found the appellant roaming around there. The informant and the villagers suspected that the appellant has killed Sanjay and dragged his dead body and therefore, he was roaming near the pond to observe the situation. When the informant along with villagers wanted to ask him, he fled away but the villagers caught him on chase. There were some injuries on the neck of the appellant, regarding which, he did not reply properly on which the villagers assaulted him due to which he sustained injuries. The informant suspected that the reasons of murder was that few days ago there was some dispute between the appellant and the 'Saru' of the informant in which there was 'Mar Pit' also. The appellant believed that Sanjay was helping his 'Mausa' due to which the appellant used to threaten Sanjay with dire consequences. Further, there was illicit relationship between Sanjay and the cousin of the appellant due to this reason also the appellant was angry with Sanjay. The family members of the cousin planned to commit murder. 3. Mr. Jai Prakash, learned sr. counsel appearing on behalf of appellant assailed the impugned judgment on various grounds. Further, there was illicit relationship between Sanjay and the cousin of the appellant due to this reason also the appellant was angry with Sanjay. The family members of the cousin planned to commit murder. 3. Mr. Jai Prakash, learned sr. counsel appearing on behalf of appellant assailed the impugned judgment on various grounds. It is submitted that the chain of circumstances is not complete. He has also submitted that the incriminating circumstances taken into consideration in paragraph No.12 of the judgment were not put to the appellant in his examination under Section 313 of the Cr.P.C. 4. On the other hand, Counsel for the State has supported the impugned judgment. 5. P.Ws. 1,2 & 3 did not support the fact disclosed in the F.I.R. that they told the informant that the appellant took the deceased towards pond. These witnesses simply said that the appellant and the deceased were sitting on a 'Chabutara'. P.W. 3 has been declared hostile. P.Ws. 4, 5 & 8 are the hearsay witnesses. P.W. 6 (Parimal Mandal) is the own brother of the deceased Sanjay and is signatory in the F.I.R. It is important to note that P.W. 6 said that in the night itself it was found that the deceased was missing. It may also be noted that this witness and P.W. 9 (informant) developed story that the appellant was throwing sand on the blood stains when the witness went in the morning towards pond. P.W. 7 is the Doctor, who conducted postmortem. P.W. 9 is the informant. He reiterated the F.I.R. As already noticed, he developed the story that the appellant was throwing sand on the blood stains. P.W. 10 is the Investigating Officer. On the one hand he said that the dead body was recovered on the confession of the appellant and on the other hand he said that after search for about an hour the dead body was recovered on getting some indication from the flies. P.W. 11 is the seizure witness. P.W. 12 is tendered witness. P.W. 13 is inquest witness. 6. After carefully going through the records and hearing the parties at length, in our opinion, the appellant deserves to be given benefit of doubt. As already noticed, it is not possible to believe that the dead body was recovered on the confession of the appellant. The only thing remains is the theory of last seen. 6. After carefully going through the records and hearing the parties at length, in our opinion, the appellant deserves to be given benefit of doubt. As already noticed, it is not possible to believe that the dead body was recovered on the confession of the appellant. The only thing remains is the theory of last seen. It is not possible to accept that if the appellant threatened the deceased with dire consequences, both will find sit together on a 'Chabutara'. Even P.W. 6 brother of the deceased did not warn the deceased. Moreover, it has come in the evidence that in the night itself P.W. 6 and others learnt about the missing of the deceased. In the morning when search was made, it is said that the appellant was found roaming near the blood stains and he was throwing sand on the blood stains. Such story is against the natural human conduct. It has also come in the evidence that the appellant was assaulted by the villagers due to which he was treated for more than 4 days. 7. In the result, this appeal is allowed giving benefit of doubt to the appellant. The impugned judgment is set aside. 8. The appellant is directed to be released forthwith from jail, if not wanted in any other case.