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2015 DIGILAW 817 (JHR)

Gunadhar Mandal v. State of Jharkhand

2015-07-20

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT 1. Since both the appeals, arising out of the same case, were heard together, the same are being disposed of by this common judgment. 2. Both the appeals are directed against the judgment of conviction and order of sentence dated 13.1.2004 passed by the then 4th Additional Sessions Judge in S.C. No. 161 of 2002 and 321 of 2002 whereby and whereunder the appellant, Gunadhar Mandal (in Cr. App. (D.B) No. 1886 of 2004) on being found guilty for committing murder of Dropadi Devi convicted him for the offence punishable under Section 302 of the Indian Penal Code whereas the appellants, Mandev Mandal, Kamdeo Mandal, Jitan Mandal, Bishun Mandal, Murli Mandal and Dobar Rai @ Dobra (in Cr. App (S.J.) No. 234 of 2004) have been convicted along with the appellant Gunadhar Mandal for the offence punishable under Section 201 of the Indian Penal Code. The appellant Gunadhar Mandal was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and further was sentenced to undergo rigorous imprisonment for five years for the offence under Section 201 of the Indian Penal Code. At the same time other appellants named above were sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 201 of the Indian Penal Code. 3. The case of the prosecution is that Dropodi Devi, daughter of the informant, Sukhdeo Mandal, (P.W.6) had been married ten years before to Gunadhar Mandal, who was working at Orissa since last four months whereas his wife, Dropodi Devi was living at her in-laws’ place along with her children. On 3.3.2001 Gunadhar Mandal came to his in-laws' place and stayed in the night. On the next day i.e. on 4.3.2001 he left the place early morning for coming to his village Marnadih. On 6.3.2001 when the informant, Sukhdeo Mandal (P.W.6) came to his daughter’s place, he did not find anyone including his daughter in the house. Thereupon he asked from one Bishun Mandal, who was next door neighbour, about his daughter and other family members but he expressed his ignorance. Meanwhile, his wife Ruka Devi (P.W.7) came over there and she disclosed to her husband by weeping that all the family members have killed his daughter. Thereupon he asked from one Bishun Mandal, who was next door neighbour, about his daughter and other family members but he expressed his ignorance. Meanwhile, his wife Ruka Devi (P.W.7) came over there and she disclosed to her husband by weeping that all the family members have killed his daughter. When he was in the village, one person of the same village did disclose that Dropodi Devi has been killed by her husband and other family members. Some of the villagers also disclosed that while the appellant, Gunadhar Mandal was living at Orissa, his wife developed illicit relation with one Pradeep Sen @ Bekul Sen and therefore, all the accused persons killed Dropodi Devi in the night of 5.3.2001 and then accused persons took the dead body at the bank of river where they buried the dead body under the sand. 4. Meanwhile, an information was received at the police station that Gunadhar Mandal after committing murder of his wife has disposed of the dead body. The said information was entered into the station diary and the Officer-in-Charge, Anjali Kumar Jha (P.W.10) came to the village and recorded the Fardbeyan (Ext.2) of the informant, Sukhdeo Mandal, P.W.6 at police camp. 5. On the basis of the said Fardbeyan, a formal F.I.R (Ext.3) was drawn. He undertook the investigation of the case. During which he arrested Mandev Mandal, who, according to the Investigating Officer, confessed his guilt which was reduced in writing (Ext.4) and the confession made by the appellant, Mandev Mandal led to recovery of the dead body. After the dead body was taken out, the Investigating Officer held inquest on the dead body and prepared an inquest report (Ext.5). Thereupon the dead body was sent for post mortem examination which was conducted by Dr. C.P. Sinha (P.W.11), who upon holding autopsy did not find any anti mortem injury or post mortem injury over the person of the deceased and thereby he issued post mortem examination report (Ext.6) with an endorsement that no definite opinion could be given about the cause of death. However, he preserved the viscera. 6. Meanwhile, the Investigating Officer recorded the statements of the witnesses. On completion of investigation, charge sheet was submitted upon which cognizance of the offences was taken against the appellants of both the cases and when the case was committed to the court of sessions the appellants were put on trial. 7. However, he preserved the viscera. 6. Meanwhile, the Investigating Officer recorded the statements of the witnesses. On completion of investigation, charge sheet was submitted upon which cognizance of the offences was taken against the appellants of both the cases and when the case was committed to the court of sessions the appellants were put on trial. 7. During trial, the prosecution examined altogether 11 witnesses. Of them, P.W.1, Suresh Mandal, brother of the deceased, did testify that when he did receive information that the appellants have killed his sister, he went there but did not find his sister there nor did he find any of the accused persons there. Meanwhile, Miss Kashmira Kumari (daughter of the deceased) disclosed to him that his father and also other accused persons have killed the deceased. According to P.W.4, Hiralal Mandal, another brother of the deceased, when he came to the village of his sister, he came to know that his sister has been killed by the accused persons. P.W.2, Meena Devi, P.W.3, Meena Devi wife of Hiralal Mandal, both sisters-in-law of the deceased have testified that they could know that the accused persons having killed the deceased have disposed of the dead body. P.W.6, Sukhdeo Mandal, the informant, P.W.7, Ruka Devi, wife of the informant have testified that when they came to the place of their daughter, they could know from Miss Kashmira Kumari (daughter of the deceased) and also from one Bishun Mandal that the accused persons have killed the deceased. Rest two witnesses, P.W.8, Sonawati Devi and P.W.9, Sohawati Devi have been declared hostile. 8. Upon closure of the prosecution case when the incriminating evidences appearing against the appellants were put to the accused persons under Section 313 of the Code of Criminal Procedure, they denied. 9. However, the trial court having placed its reliance on the testimony of the witnesses did find the appellant Gunadhar Mandal guilty for committing murder of the deceased whereas other appellants (in Cr. App. (D.B.) No. 234 of 2004) were found guilty for causing disappearance of the evidence of the murder and accordingly, they were convicted and sentenced as aforesaid. That order is under challenge. 10. Mrs. Alpana Verma, learned counsel appointed as Amicus Curiae (in Cr. App. App. (D.B.) No. 234 of 2004) were found guilty for causing disappearance of the evidence of the murder and accordingly, they were convicted and sentenced as aforesaid. That order is under challenge. 10. Mrs. Alpana Verma, learned counsel appointed as Amicus Curiae (in Cr. App. (D.B) No. 1886 of 2004) submits that the judgment of conviction is based on the evidence of witnesses which has got no evidentiary value as all the witnesses examined by the prosecution are hearsay. 11. Further it was submitted that the motive which has been assigned is that the deceased had developed illicit relationship with Pradeep Sen @ Bekul Sen while the appellant, Gunadhar Mandal was at Orissa and, therefore, when the appellant came from Orissa, he and his other family members killed the deceased but the factum of deceased having developed illicit relationship is based on suspicion and conjecture as no evidence in this regard is there on the record and therefore, the court should not have used the said fact as motive. 12. Further by referring to the evidence of Dr. C.P. Sinha (P.W.11), it was submitted that it never happens to be a case of homicidal death as the doctor did not find any anti mortem injury on the person of the deceased, still the accused persons were put on trial on the allegation of committing murder of the deceased and thereby the trial court certainly committed illegality in convicting the appellants for the offence punishable under Sections 302 and 201 of the Indian Penal Code. 13. Mr. Jalisur Rahman, learned counsel appearing for the appellants (in Cr. App. (S.J.) No. 234 of 2004) submits that there has been absolutely no evidence that the appellants did any act so as to offence under Section 201 of the Indian Penal Code be attracted against them and thereby the judgment of conviction and order of sentence passed against the appellants being bad is fit to be set aside. 14. App. (S.J.) No. 234 of 2004) submits that there has been absolutely no evidence that the appellants did any act so as to offence under Section 201 of the Indian Penal Code be attracted against them and thereby the judgment of conviction and order of sentence passed against the appellants being bad is fit to be set aside. 14. As against this, learned counsel appearing for the State submits that though the witnesses who have been examined by the prosecution are hearsay but the fact which has been appearing in the case is that the deceased was found dead and the dead body had been buried under the sand which was recovered at the instance of co-convict Mandev Mandal, who had confessed his guilt which has been reduced in writing by the Investigating Officer (Ext.4). Under the circumstances, the trial court has rightly recorded the judgment of conviction and order of sentence against the appellants. 15. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the case of the prosecution as has been testified by the informant, Sukhdeo Mandal (P.W.6) is that his daughter Dropodi Devi had married to Gunadhar Mandal ten years before but since last four months from the date of death, Gunadhar Mandal was working at some place at Orissa who had come to the place of the informant on 3.3.2001. After staying in the night he left for his village on 4.3.2001 where his wife along with children were living. On 6.3.2001 when the informant and other witnesses, P.W.4 and P.W.7 visited the place of the appellant, they did not find the deceased nor did they find any of the accused persons. Thereupon they started making enquiry during which course P.W.1, P.W.6 and P.W.7 came to know from Miss Kashmira Kumari (daughter of the deceased) and also from Bishun Mandal residing in the neighborhood of the appellants that the appellants having killed the deceased have disposed of the dead body to screen themselves from legal punishment but surprisingly, the prosecution did not examine either Miss Kashmira Kumari or Bishun Mandal and thereby the testimonies of P.W.1, P.W.6 and P.W.7 do not have any evidentiary value. All other witnesses examined by the prosecution are hearsay. All other witnesses examined by the prosecution are hearsay. Moreover, they even did not disclose about the source from which they came to know about the culpability of the appellants and therefore, there does not appear to be any legal evidence to the effect that the appellants did commit murder of the deceased. 16. Furthermore, the motive which has been assigned by the prosecution is that the deceased during the period when the appellant Gunadhar Mandal was residing at Orissa had developed illicit relation with Pradeep Sen @ Bekul Sen and therefore, the appellants including Gunadhar Mandal killed the deceased. But that assumption appears to have been based on suspicion as no cogent evidence has been produced to establish the factum of illicity relationship. Moreover, Sukhdeo Mandal, P.W.6 has gone to say to the extent that he is absolutely not knowing that in absence of the husband her daughter had developed illicit relation with Pradeep Sen @ Bakul Sen. In that event, the prosecution can easily be said to have failed to establish the motive. Above all, the case does not appear to be a case of homicidal death as, according to evidence of the doctor, he did not find any anti mortem injury on the person of the deceased, in spite of that, charge sheet was submitted and the accused persons were put on trial on the charge of murder and also for destroying the evidence of the murder but again the prosecution has failed to establish that the appellants caused disappearance of the evidence allegedly of murder. 17. Under the circumstances, we do find that the trial court committed illegality in recording the order of conviction and sentence against the appellants of both the appeals and hence, the judgment of conviction and order of sentence is hereby set aside. Consequently, all the appellants are acquitted of the charge and the appellant, Gunadhar Mandal, who is in custody, is directed to be released forthwith, if not wanted in any other case. 18. In the result, both the appeals stand allowed.