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2014 DIGILAW 1198 (PAT)

Naresh Mandal (Yadav) v. The State of Bihar

2014-12-05

AMARESH KUMAR LAL, DHARNIDHAR JHA

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JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) Initially there were four appellants who had preferred the present appeal to set up a challenge to the judgment dated 27.06.1992, passed by the learned 7th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 213 of 1984/125 of 1988. However, appellants Mako Mandal, Damodar Mandal and Moti Singh Mandal were reported dead and the appeal as on their behalf stood abated as may appear from Court's order dated the 20th of November, 2014 leaving it only on behalf of appellant Naresh Mandal (Yadav). The appellants had been put on trial by being charged under Sections 302/34 of the Indian Penal Code and were held guilty of committing the above offence and each of them was directed to suffer rigorous imprisonment for life. 2. The two appellants, namely, Mako Mandal and Moti Singh Mandal (both since dead) had also been convicted under Section 27 of the Arms Act and had been directed to suffer rigorous imprisonment for two years. 3. The fardbeyan of P.W.8 Garbhu Mandal recorded at Kajraili Police Station was the basis for drawing up of the First Information Report (Ext.2). It was stated that the informant along with his family members including Mahadeo Mandal (deceased) was sleeping on the Verandah of his house when four unknown criminals came there. The Chadar which had been spread by the informant over him was lifted by the criminals to identify as to who was there. The informant woke up. He was captured by two criminals. Others lifted the Chadar from the face of deceased Mahadeo Mandal and having identified him, one of them stated that it was Mahadeo Mandal and that he should be killed, whereafter a criminal fired a shot as a result of which the deceased fell down injured. The informant tried to raise an alarm, but he was silenced by showing the pistol and being threatened that if he at all uttered a word, his whole family would be wiped out. 4. The informant, while closing his statements, alleged that a year before the occurrence while he was constructing a house, there had been some tip off with accused Mako Mandal and appellant Naresh Mandal, and they had threatened to avenge in future and probably it were they who had on account of the above reason, had either committed the murder of his brother or had got it committed. 5. 5. It appears that on close of the investigation, the four accused persons were sent up for trial who were not named, as noted earlier, in the First Information Report. 6. There is no dispute in it that Mahadeo Mandal was shot and killed, which appears supported by P.W.9 Dr. B.P.Singh who had found the following injuries on the dead body of Mahadeo Mandal: (i) Lacerated oval wound 1.2 cm X 1 cm, 1/2" below the left molar prominence (cheek bone) with blackening and tattooing surrounding skin and sub cutaneous tissue, (ii) Lacerated wound 1/2" below the angle of right mandible (right lower jaw). P.W.9, on dissection of the wounds, found them causing laceration of muscles, laceration of pharynx and laceration of right internal carotid (blood vessel) artery (side of neck) besides laceration of internal juglar vein (side by side location). The left maxillary bone, i.e., the upper jaw bone was found fractured. The injuries were ante-mortem caused by fire arms within 36 hours of holding of autopsy by P.W.9 over the dead body and the cause of death was the haemorrhage and shock resulting out of the above injuries. 7. In support of the charges, ten witnesses were examined by the prosecution out of whom Jagarnath Mandal (P.W.4) and Panchu Paswan (P.W.5) were declared hostile on account of having not supported the prosecution case. Sudin Mandal (P.W.6) was tendered for cross-examination while Prabha Devi (P.W.3) stated that she was not present in her house or at the scene of occurrence as she was away from the village due to being present at her parents' house and as soon as she learnt about the incident, she came back the very next morning to her house. The support to the prosecution story came from Juna Kumari (P.W.1) who happened to be the wife of the deceased and Urmila Devi (P.W.2) the other lady member of the house being the wife of the informant. Surti Devi (P.W.7) was the mother of the informant and the deceased and Garbhu Mandal (P.W.8) was the informant himself. P.Ws. 1, 2 and 7 stated facts as if they had seen the occurrence and had identified the accused persons. Surti Devi (P.W.7) was the mother of the informant and the deceased and Garbhu Mandal (P.W.8) was the informant himself. P.Ws. 1, 2 and 7 stated facts as if they had seen the occurrence and had identified the accused persons. They had not only named the two accused who had been suspected to have either participated in commission of the offence or to have engineered the same, but also named two more persons, namely, Moti Mandal and Damodar Mandal. They had given evidence as if the occurrence had been committed in their presence and what appears from the evidence of witnesses was that while the initial prosecution story was that the murder had been committed at the very Verandah of the house where the informant and the deceased were sleeping at two different places; they stated as if the deceased had been taken into the courtyard of the house where he was shot and killed. We find from the evidence of Garbhu Mandal (P.W.8) the informant of the case that he was put a very direct question as to at what place the dead body had been found and he had stated that at the very place the deceased had been killed. As per the First Information Report, it was the Verandah where the deceased had been shot and he had fallen from the bed to die there. This place of occurrence was shifted by the prosecution witnesses to the courtyard or the Aangan of the house. However, when we were perusing the inquest report, we found from Column No. 3 which is in respect of the place, date and time where the dead body had been found, that it was lying under a Neem tree outside the house on a cot. We may give some allowance to the prosecution that after the man had been killed, the dead body might have been put on a cot, but we find that the prosecution witnesses had shifted the place of occurrence and we do not see as to for what reason they could have done it else that they might not have seen and identified the accused persons. 8. 8. The identification of the accused persons is doubtful also appears from the fact that the very informant in his First Information Report had not named any particular person in connection with the lifting of the Chadar either from his face or from that of the deceased neither he had named anyone who could have fired the shot or who could have captured the informant. We have a fact very much stated by the informant in the fardbeyan that two accused persons, namely, Mako Mandal and Naresh Mandal had threatened him of dire consequences at the time when he was building a house. The parties are co-villagers and as appears from the evidence, their houses were situated side by side. The parties were not unknown to each other. Moreover at least one person had spoken that it was Mahadeo Mandal and that he be killed. In spite of the man having uttered a few words, his identity had not been disclosed on account of being identified by his voice. There is no mention in the First Information Report that any source of light was placed or available at the site of occurrence but during evidence the prosecution improvised its case by making the P.W.'s state that torches were flashed so much so that P.W.8 the informant stated that it was being consistently flashed into his face. If the torch light had been flashed at the place of occurrence, it could have illuminated the surrounding areas at least to the extent that the identities of the criminals could have been picked up by the witnesses so as to appropriately narrate as to who were the persons who had committed the offence. Witnesses, like, P.Ws. 1, 2 and 7 stated that they had duly identified the accused persons. The same evidence also came during trial from Garbhu Mandal (P.W.8) and he also stated that he had properly identified the accused persons in the torch light flashed by them. If indeed the witnesses had identified the accused persons then it is curious as to why their names was so conspicuously absent from the fardbeyan. 9. The evidence of P.W.8 on being considered informs us that the informant had been cross-examined to his previous statement at great length. If indeed the witnesses had identified the accused persons then it is curious as to why their names was so conspicuously absent from the fardbeyan. 9. The evidence of P.W.8 on being considered informs us that the informant had been cross-examined to his previous statement at great length. The very cross-examination starts by drawing the attention of P.W.8 to his statements which were contained in his fardbeyan and he admitted in some part or the other that he had not made the statement which was recorded by the trial Court during trial. In the fardbeyan, we have already noted, he had not named anyone with any particular role assigned to him. The very fardbeyan also indicates that the statement was recorded by the police at Kajraili Police Station where the informant had come to lodge his report and that the report was lodged against unknown and unidentified accused persons. In his evidence the informant stated that he had given his fardbeyan at his house which, in our opinion, is completely contrary to the initial record, i.e. Ext.2, the fardbeyan. The very evidence of informant considered with the initial prosecution record convinces us that it was an after thought that he was implicating the accused persons by assigning some roles to one or the other and the purpose for such implication was to ensure that the enemies of the informant and his family was not only tried but was convicted and punished. If this could be the motive for the witnesses in deposing in court then they had to be held as not fit to be relied upon. 10. In the result, what we find is that the prosecution had miserably failed in proving the charges to the hilt. In fact, it appears a case of belated implication of the accused persons with motive to satiate the grudge and animosity which the informant and his family members were nursing against the accused. The appeal is, as such, allowed. The judgment of conviction and order of sentence dated 27.06.1992, passed by the learned 7th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 213 of 1984/125 of 1988 is set aside. The solitary surviving convict Naresh Mandal (Yadav) is acquitted of the charge he had been found guilty of. The appellant is on bail. He shall stand discharged from liability of his bail bond.