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2015 DIGILAW 76 (JHR)

Jaikant Mandal v. State of Jharkhand

2015-01-16

RAVI NATH VERMA

body2015
Judgment : The sole appellant Jaikant Mandal has challenged the impugned judgment dated 18.12.2004 passed by the 1st Additional Sessions Judge, Deoghar in Sessions Trial No.77 of 1992, whereby the appellant has been convicted for the offence under Section 364 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.3000/- and in default to undergo rigorous imprisonment for further period of six months. 2. Salient features of the prosecution case, which is based on the fardbeyan of Manilal Mandal recorded on 23.04.1991, in short, is that on 23.03.1991, Jaikant Mandal the present appellant, came to his house at village Jhagrahi and informed that wife of his son Naresh Mandal has to appear in High School examination at Sheikhpura and so Naresh has to go there. As Jaikant Mandal was co-brother (Sadhu) of Naresh Mandal in relation, the informant allowed his son Naresh Mandal to go with Jaikant Mandal. On 10.04.1991, his Samdhi Kailash Chandra Mandal came to his house and informed that his son Naresh Chandra Mandal had been bitten by a dog and he became mad and ran away. Thereafter, the informant along with Binod Mandal and Parsuram Mandal went to search his son at all possible places but his son was not found. It is further alleged that as per information given by his Samdhi he also went to the house of Kedar Prasad Kurmi in Sheikhpura, Munger where wife of said Kedar Prasad informed that Naresh Mandal along with 5-6 persons who disclosed them as brother-in-law, co-brother and father-in-law had come to her house and wife of Naresh was also with them but a mar-peet took place between Naresh Mandal and his brother-in-law 2-3 days prior to the last examination of the wife of Naresh Mandal. Further allegation is that his daughter-in-law had illicit relation with Nundhan Mandal, Jaikant Mandal, Niranjan Mandal which had been seen by his son Naresh Mandal also and on 08.04.1991, the accused persons had given some intoxicant to his son and after beating him took him to some unknown place and since then his son has not been seen. It is also alleged that the above persons had assaulted his son with intent to kill him and had knowingly given false information. 3. It is also alleged that the above persons had assaulted his son with intent to kill him and had knowingly given false information. 3. In the F.I.R., in the column 'date and hour of the occurrence', the period has been given between 25.03.1991 to 09.04.1991. 4. On the basis of the said information, Sarath P.S. Case No. 58 of 1991 was instituted under Sections 364/34 of the Indian Penal Code against seven accused persons. After investigation, the police submitted charge sheet against all the seven accused persons and accordingly the case was committed to the Court of Sessions for trial and disposal. Whereafter charge was framed and when the same was read over and explained to the accused, they pleaded not guilty. 5. In order to prove the charges, the prosecution examined ten witnesses including the informant Manilal Mandal as P.W.5. The other witnesses are P.W.1 Gajo Mandal, P.W.2 Bhola Mandal, P.W. 3 Yudhisthir Mandal, who was tendered for cross-examination, P.W. 4 Upasi Devi, P.W. 5A Binod Mandal, P.W. 6 Jhagru Mandal, P.W. 7 Gopal Mandal, P.W. 8 Parsuram Mandal and P.W. 9 Rooplal Mandal. Investigation Officer of the case has not been examined by the prosecution. 6. The learned 1st Additional Sessions Judge, Deoghar by the impugned judgment convicted the appellant Jaikant Mandal for the offence under Section 364 of the Indian Penal Code but other co-accused persons were acquitted from the charges framed against them. 7. Assailing the judgment of conviction, the learned counsel appearing for the sole appellant submitted that it is a case in which the prosecution was launched belatedly and the prosecution has failed to prove that the son of the informant was taken away to Sheikhpura by force or by any deceitful means. The prosecution has also failed to prove that Naresh Mandal was murdered or was put in danger of being murdered. The prosecution case is highly improbable as the I.O. of this case has also not been examined and even the original F.I.R. is not on record and never marked as exhibit rather a photocopy of the F.I.R. is only on record. It was also contended that P.Ws.5A & 8 in their evidences clearly stated that Naresh Mandal was last seen on 09.04.1991 at the examination centre at Sheikhpura. It was also contended that P.Ws.5A & 8 in their evidences clearly stated that Naresh Mandal was last seen on 09.04.1991 at the examination centre at Sheikhpura. Learned counsel further submitted that the conviction of the appellant under Section 364 of the Indian Penal Code is not maintainable in the light of the judgments reported in 1984 East Criminal Cases 117 (SC) and 1995(2) East Criminal Cases 127 Lakhan Rabidas Versus State of Bihar. The burden to prove the ingredients responsible to constitute the offence under Section 364 of the Indian Penal Code lies on prosecution but prosecution has completely failed in discharging its obligation. On the point of delay in lodging the F.I.R., the learned counsel has relied on judgments reported in AIR 1976 SC 2423 Ishwar Singh Versus State of Uttar Pradesh and 2011(7) SCC 421 Bhajan Singh @ Harbhajan Singh & Others Versus State of Haryana. The prosecution case is highly improbable on these grounds, amongst others, it has been contended that the judgment of conviction of learned court below be set aside and the appellant be acquitted. 8. On the contrary, the learned Public Prosecutor submits that complete chain of circumstances pointing towards the guilt of the accused had been proved by cogent evidence. He further submits that the appellant had strong motive for killing the deceased as he was entangled with the wife of the deceased. Learned counsel submits that the evidences of the witnesses are consistent and as such no interference is required. 9. Before I enter into the veil of evidence of prosecution witnesses, it would be proper to examine Section 364 of the Indian Penal Code as the learned counsel for the appellant has seriously contended that no case has been made out under the above provision. This takes me to the consideration of Section 364 of the Indian Penal Code which runs as follows: 364. Kidnapping or abducting in order to murder :- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Out of the two words “Kidnapping” or “Abduction”, it would be appropriate to examine Section 362 of the Indian Penal Code which defines “Abduction”: 362. Abduction- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. 10. Apparently in order to prove the charge under Section 364 of the Indian Penal Code, the prosecution has to prove that either force or deceit or misrepresentation of fact was practiced on the person abducted, as otherwise, a conviction under Section 364 of the Indian Penal Code cannot stand. In this connection, reference may be made to the case of Vinod Chaturvedi & Ors. Versus State of Madhya Pradesh reported in AIR 1984 SC 911 . In the said case, most of the prosecution witnesses have stated that on being persuaded by the accused persons and Vinod, in particular, the abducted person, named Brindawan went inside his house and came out properly dressed to accompany them to a particular village. It was held by the Honble Supreme Court in this case that under the aforesaid circumstances, it cannot be said that Brindawan was abducted by the accused persons in view of the definition of “abduction” in Section 362 of the Indian Penal Code. 11. The intention for which a person is kidnapped or abducted must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. In the present case, no prior enemity or inimical terms between the parties has been disclosed anywhere in the first information report. 12. In the light of the aforesaid settled position, I would like to proceed to examine the facts of the present case to find out whether any offence under Section 364 of the Indian Penal Code has been made out or not. As claimed in the F.I.R. by the informant (P.W.5) that on 23.03.1991, the appellant Jaikant Mandal came to his house and informed that the wife of Naresh Mandal has to appear in High School examination at Sheikhpura and so Naresh has to go there. The informant (P.W.5) has disclosed the relationship between Jaikant Mandal and his son Naresh Mandal as co-brother (Sadhu). It further appears that the informant send Naresh Mandal with Jaikant Mandal after giving his son Rs.1000/-. The informant (P.W.5) has disclosed the relationship between Jaikant Mandal and his son Naresh Mandal as co-brother (Sadhu). It further appears that the informant send Naresh Mandal with Jaikant Mandal after giving his son Rs.1000/-. The informant has also explained that wife of Naresh Mandal, since after her marriage, has not come to the village of the informant. Moreover, in the F.I.R., it is nowhere stated that any force or deceit was used by the appellant against the informant for allowing Naresh Mandal to accompany him. Now at this stage, I would like to examine the evidences of prosecution witnesses. P.W. 5 Manilal Mandal has reiterated the same facts in his evidence. P.W.1 Gajo Mandal, P.W.2 Bhola Mandal, P.W. 4 Upasi Devi mother of Naresh Mandal and P.W. 6 Jhagru Mandal have all confirmed the fact that P.W. 5 Manilal Mandal allowed his son to accompany Jaikant Mandal and no force or deceit was used by the appellant. So far as misrepresentation of fact regarding examination of wife of Naresh Mandal at Sheikhpura is concerned, P.W. 8 Parsuram Mandal in his evidence has stated that on 09.04.1991 he met with Naresh Mandal at Sheikhpura who informed him that he has come to Sheikhpura for the examination of his wife. Another prosecution witness 5A Binod Mandal has also confirmed this fact that he had also gone to Sheikhpura for the examination of his sister-in-law and there he met Naresh Chandra Mandal. So the theory of last seen on 23.03.1991 fails on ground as on a subsequent date i.e. on 09.04.1991 Naresh was present at the examination centre at Sheikhpura and met with P.W. 8 Parsuram Mandal and P.W. 5A Binod Mandal. 13. In the second part of F.I.R., the informant (P.W.5) has further developed the case by stating that the wife of Kedar Prasad Kurmi of Sheikhpura had informed him that Naresh Mandal along with his wife, brother-in-law, co-brother and father-in-law came to her house and there was mar-peet between Naresh Mandal and his brother-in-law. She had also disclosed that his daughter-in-law had illicit relation with Jaikant Mandal, Nundhan Mandal and Niranjan Mandal. From the record of the case, it appears that the wife of Kedar Prasad Kurmi has not been examined by the prosecution to support the above prosecution story nor Kedar Prasad Kurmi has been examined by the prosecution. She had also disclosed that his daughter-in-law had illicit relation with Jaikant Mandal, Nundhan Mandal and Niranjan Mandal. From the record of the case, it appears that the wife of Kedar Prasad Kurmi has not been examined by the prosecution to support the above prosecution story nor Kedar Prasad Kurmi has been examined by the prosecution. In his evidence P.W.-5 stated that he came to know of the illicit relationship of his daughter-in-law from one Ramdhari Yadav who was living in the house of Kedar Prasad Kurmi of Sehikhpura but the said Ramdhari Yadav has also not been examined by the prosecution. 14. The subsequent prosecution story of illicit relationship of Jaikant Mandal with the wife of Naresh Mandal and threatening, given by the appellant is concerned, P.W.1 has stated that at Sheikhpura, Naresh had seen his wife Lata and Jaikant in a compromising position but this witness has nowhere stated in the entire deposition as to how he came to know of this fact. He has nowhere stated that he had also gone to Sheikhpura and met Naresh Mandal who informed him about said illegal relationship. P.W. 2 has also given a similar statement regarding relationship of wife of his brother Naresh with Jaikant Mandal and P.W. 4 has further stated that he came to know of this fact from Kailash Chandra Mandal, the father-in-law of his brother Naresh but he never visited Sheikhpura. The said Kailsh Chandra Mandal has also not been examined as witness to affirm this fact of illegal relationship. This witness has denied the suggestion given by the defence that he came to know of illegal relationship from his father. 15. On the point of threatening, Naresh Mandal P.W.5A and Parsuram Mandal P.W.8 in their evidences have stated that Rajesh Mandal, Niranjan Mandal, Nundhan Mandal and Panchu Mandal had given threatening to Naresh, but there is no evidence on record that the present appellant had ever given threatening to Naresh Mandal of dire consequences. The above persons Rajesh Mandal, Niranjan Mandal, Nundhan Mandal and Panchu Mandal have already been acquitted by the court below and no appeal against acquittal has been preferred either by the informant or by the State. The above persons Rajesh Mandal, Niranjan Mandal, Nundhan Mandal and Panchu Mandal have already been acquitted by the court below and no appeal against acquittal has been preferred either by the informant or by the State. In this connection, it may be said that in a criminal case it is not always necessary to allege motive for the commission of an offence but if a motive is alleged by the prosecution for the commission of the offence, it is well settled, the burden lies on the prosecution to prove, failing which it may creates reasonable doubt on the prosecution case. 16. It was seriously argued by the learned counsel for the appellant that the very genesis of the case, the F.I.R., has not been brought on the record rather photocopy of the F.I.R. is only on the record and even that has not been marked as an exhibit. It was also contended that there has been an inordinate delay in lodging the F.I.R. as the alleged occurrence is said to have taken place on 23.03.1991 but the F.I.R. was lodged on 23.04.1991 and this delay has not been properly explained by the prosecution. In support of his contention my attention has been drawn to the cases Ishwar Singh Versus State of U.P.(supra) and Bhajan Singh @ Harbhajan Singh & Others Versus State of Haryana (supra). It was also contended that non examination of I.O. has prejudiced the entire case and for that learned counsel has relied on a judgment reported in 2013(6) SCC 418 Lahu Kamlakar Patil & Anr. Versus State of Maharashtra. 17. In the column “date and hour of the occurrence” in the F.I.R. the period has been given between 25.031991 to 09.04.1991. As per allegation Naresh Mandal on the request of Jai Kant Mandal had gone with him on 23.03.1991 and thereafter on 10.04.1991 Kailash Chandra Mandal the father of daughter-in-law of the informant came to his house and informed that Naresh Chandra Mandal has been bitten by a dog and he became mad and ran away. Thereafter, the informant along with Vinod Mandal, Parsuram Mandal went in search of Naresh in village Chandana, Jagatpur and other places, but his son was not found. It is surprising in a situation like this, even after search, he did not informed the police. Thereafter, the informant along with Vinod Mandal, Parsuram Mandal went in search of Naresh in village Chandana, Jagatpur and other places, but his son was not found. It is surprising in a situation like this, even after search, he did not informed the police. It is also the case of the informant when his son was not found he went to the house of Kedar Prasad Kurmi in Sheikhpura and their his wife informed that Naresh Mandal along with those persons including brother-in-law, co-brother and father-in-law had come there and wife of Naresh was also there at that time. So from prosecution version itself, it is amply clear that Naresh Mandal was physically present in Sheikhpura even after 10.04.1991. Learned counsel for the appellant has relied on Ishwar Singh Versus State of U.P. (supra) and Bhajan Singh & Others Versus State of Haryana (supra) on the point of delay but on perusal of those two judgments, it appears that in both the cases, F.I.R. was lodged on the date of occurrence but the same were forwarded to the court concerned after unreasonable delay. In the present case, the F.I.R. was lodged after an inordinate delay and even after search on 10.04.1991 no F.I.R. was lodged. The prosecution case appears to be improbable and virtually there is no explanation by the prosecution of inordinate delay of a month in lodging the information in this case. So far as non-examination of Investigating Officer is concerned, the learned counsel has relied on a judgment of Hon'ble Apex Court in Lahu Kamlakar Patil Versus State of Maharashtra (supra). It is accepted principle that non-examination of the Investigation Officer is not fatal in every case and it depends upon the facts of each case. In the above case, after consideration of the entire evidence, the court held that the non-examination of I.O. creates a lacuna. In a case reported in (1996)2 SCC 317 Behari Prasad Versus State of Bihar the Hon'ble Court has held that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In a case reported in (1996)2 SCC 317 Behari Prasad Versus State of Bihar the Hon'ble Court has held that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In another case reported in (2000)9 SCC 153 Bahadur Naik Versus State of Bihar the Hon'ble Court has opined that when no material contradictions have been brought out, the non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is pertinent to note here that the question of non- examination of I.O. was not taken up before the trial court Judge and so Trial Judge has not gone into the issue. Since the original F.I.R. is not on record and even photocopy was not marked by way of secondary evidence, some prejudice has been caused due to non-examination. 18. The trial court while convicting the appellant has relied on certain circumstantial evidence that Jaikant Mandal induced Naresh Chandara Mandal to go from Jhagrahi with him and since then Naresh Mandal is not traceable. These circumstances are suggesting that either he was murdered or he was disposed of as to be put in danger of being murdered. 19. Admittedly, the said Naresh Chandara Mandal has not yet been traced out as a dead or alive but there is no evidence also to the effect that there was any inducement or coercion or deceitful means or misrepresentation of fact or that the relationship between the appellant and Naresh Mandal was strained rather evidence is otherwise. While evaluating the testimony of witnesses, this fact cannot be lost sight of that apart from the infirmity that has crept in the prosecution evidences, if the prosecution version was accepted to be true on face value about the appellant having taken Naresh Mandal in his company, pursuant to which he was not seen alive, that by itself would not saddle the appellant with the allegation of abducting Naresh with an intention to commit his murder. It is settled law that suspicion howsoever may be strong cannot take the place of legal proof. It is settled law that suspicion howsoever may be strong cannot take the place of legal proof. The principle of basing a conviction on the basis of circumstantial evidence has already been laid down by the Hon'ble Supreme Court in a number of decisions and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstances so proved must have a chain of event from which the only irresistible conclusion about the guilt of the accused can be specially drawn and no other hypothesis against the guilt is possible. 20. On the basis of aforesaid discussions, I am of the opinion that there was no legal, cogent and positive evidence against the appellant to hold him guilt for the offence under Section 364 of the Indian Penal Code. I find that the appellant has wrongly been convicted for the said offence by the trial court. 21. Accordingly, this appeal is allowed. The judgment of conviction and order of sentence passed by the trial court is hereby set aside. The appellant who is on bail, is discharged from the liabilities of his bail bond.