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2018 DIGILAW 638 (JHR)

Basudeo Mandal v. State of Jharkhand

2018-03-17

RATNAKER BHENGRA, RONGON MUKHOPADHYAY

body2018
ORDER : 1. This appeal is directed against the judgment of conviction dated 19th July, 2008 and order of sentence dated 28.7.2008, passed by Sri Mohammad Kasim, learned Additional Sessions Judge, Fast Track Court No. IX, Giridih in Sessions Trial No. 284 of 2006, whereby and whereunder appellants have been convicted for the offence under sections 147, 342, 323, 149, 302, 149, 201 and 149 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. A first information report was instituted by Dular Mandal, PW-7, in which it was stated that the daughter in law of Tejo Mandal (deceased) died while falling in the well on 7.11.2008 at about 4 P.M. The informant had come to village-Chittakharo on hearing such incident. It is alleged that on 8.11.2008 at about 9 A.M. several persons in Commander Jeep, Trecker and motorcycle had come from village-Padarmania. It is also alleged that Banwari Mandal had got the deceased seated on the motorcycle and Gulab Mandal also sat on the same. It was also alleged that Tejo Mandal was taken to Padarmania and later on he came to know that Tejo Mandal was assaulted and he was burnt to death in funeral pyre prepared for cremation of Sarswati Devi. It is also alleged that incident had occurred due to unnatural death of Sarswati Devi in the well. 3. Based on the aforesaid allegations, Birni P.S. Case No. 82 of 2013 was instituted under sections 147, 148, 149, 341, 342, 327,302/201 of the Indian Penal Code. Investigation resulted in submission of chargesheet and after cognizance was taken, the case was committed to the court of sessions wherein charges were framed under sections 147, 342, 436, 149, 323, 149, 364, 149, 302, 149 and 201/149 of the Indian Penal Code and trial proceeded. In course of trial, 14 witnesses were examined on behalf of the prosecution. 4. PW-1 Sukar Mandal has stated that he had heard that daughter in law of Tejo Mandal had died and Tejo Mandal was also killed by some persons. This witness was declared hostile by the prosecution. 5. PW-2 Rajendra Mandal has stated that he had given statement under section 164 Cr.P.C. out of fear of the police. He has further stated that some persons had come after the death of Saraswati Devi who were the residents of Padarmania and who had committed murder of Tejo Mandal. This witness was declared hostile by the prosecution. 5. PW-2 Rajendra Mandal has stated that he had given statement under section 164 Cr.P.C. out of fear of the police. He has further stated that some persons had come after the death of Saraswati Devi who were the residents of Padarmania and who had committed murder of Tejo Mandal. This witness was also declared hostile by the prosecution. 6. PW-3 Horil Mandal has disclosed that he had seen Tejo Mandal sitting on the motorcycle along with two other persons. He, however, could not disclose the name of the said persons and he had heard that Tejo Mandal was burnt to death in the funeral pyre of Saraswati Devi. On the prayer made by the prosecution, he was declared hostile. 7. PW-4 Puran Mandal and PW-5 Ishwar Mandal also did not support the involvement of the appellants and they were declared hostile by the prosecution. 8. PW-6 Nunulal Manjhi had stated that he had not seen the occurrence but had heard that Tejo Mandal was taken to village-Padarmania. 9. PW-7 Dular Mandal is the informant and brother of Tejo Mandal. This witness had proved his signature in the written report marked as Ext-3. He has stated that Saraswati Devi, daughter in law of Tejo Mandal had fallen in a well and died. He has further stated that parental house of Saraswati Devi is at village-Padarmania. This witness was in Dhanbad and on information, he had come to village-Chitakharo on 7.11.2003. He had come to know that the dead body of Saraswati Devi was sent to Giridih for postmortem. When he had come to the house of Tejo Mandal, it was found burnt. This witness claims that he had seen Tejo Mandal being taken away by Banwari Mandal and Gulab Mandal on a motorcycle. He has further deposed that Tejo Mandal was taken to Padarmania and later on he came to know that Tejo Mandal was burnt alive in the funeral pyre made for cremation of Saraswati Devi. 10. PW-8 Kamal Ram was posted as a Officer In-charge of Birni P.S. and he had taken over investigation of Birni P.S. Case No. 80 of 2003 and after taking the statement of accused persons of the present case had submitted chargesheet. 11. 10. PW-8 Kamal Ram was posted as a Officer In-charge of Birni P.S. and he had taken over investigation of Birni P.S. Case No. 80 of 2003 and after taking the statement of accused persons of the present case had submitted chargesheet. 11. PW-9 Jagdish Mandal is the brother of Tejo Mandal who has stated that Banwari Mandal and Gulab Mandal had taken away Tejo Mandal in a motorcycle. He has further stated that they had assaulted Tejo Mandal as a result of which he had become unconscious. He had come to know that Tejo Mandal was subsequently burnt to death. 12. PW-10 Bed Prakash Mandal is an eye witness to the entire occurrence. This witness has stated that daughter in law of Tejo Mandal namely Saraswati Devi had fallen into a well and died and the police on being informed had sent the dead body of Saraswati Devi for postmortem. He has stated that villagers of Padarmania had come on a commander jeep, trecker and motorcycle and started searching for Tejo Mandal and they were blaming Tejo Mandal for the death of Saraswati Devi. He has admitted that Tejo Mandal was his brother in law. This witness had named the other persons involved in the offence including the appellants. He has stated that Tejo Mandal was running and when he reached near the river, he was caught and forcibly put on a motorcycle. He has stated that Basudeo Mandal cut the right hand of Tejo Mandal with tangi and thereafter Tejo Mandal was forcibly taken to the cremation ground where the funeral pyre of Saraswati Devi was prepared. This witness along with his sister and niece had gone to the said place. He has further stated that Tejo Mandal was forced to sit on the funeral pyre and after fire was lit, he was burnt alive. This witness had given statement before the Magistrate under section 164 Cr.P.C. 13. PW-11-Mosomat Reshmi Devi is the wife of Tejo Mandal and sister of PW-10. She has stated that on the date of occurrence, the accused persons had come on a commander jeep, trecker and motorcycle and on seeing them, Tejo Mandal had started fleeing away out of fear. She has stated that Banwari Mandal threw a stone at him and resultantly he fell down. She has stated that on the date of occurrence, the accused persons had come on a commander jeep, trecker and motorcycle and on seeing them, Tejo Mandal had started fleeing away out of fear. She has stated that Banwari Mandal threw a stone at him and resultantly he fell down. She has stated that Basudeo Mandal had cut the hand of her husband with a tangi and thereafter Banwari and Gulab Mandal forcibly got him seated on a motorcycle and took him away to Padarmania. This witness, her brother as well as her daughter had followed them and on reaching the place of occurrence had seen a funeral pyre arranged for Saraswati Devi. She has further deposed that on account of assault, Tejo Mandal had become unconscious and he was kept in the funeral pyre, in which the dead body of Saraswati Devi was also kept. She has stated that her husband was burnt alive and thereafter she had returned back to her village. 14. PW-12 Basanti Devi is the daughter of Tejo Mandal who has stated that the accused persons had come from Padarmania on a commander jeep, trecker and motorcycle. She has stated that Tejo Mandal had left the house out of fear but as soon as he travelled a short distance, he was felled by a stone thrown by Banwari Mandal and thereafter Basudeo Mandal had cut his hand. She has further stated that when Tejo Mandal pleaded for water, Basudeo Mandal had urinated on him. She has deposed that the accused persons had taken away Tejo Mandal on a motorcycle to Padarmania where she, her mother and maternal uncle had followed. She had seen a funeral pyre arranged with the body of Saraswati Devi on it. She has further deposed that Tejo Mandal was put on the funeral pyre and it was lit causing his death. 15. PW-13 Bidya Prasad Singh is the Investigating Officer, who proved the formal FIR marked as Ext-4. This witness had recorded the statement of the witnesses. He has also stated that area was extremely affected by Naxalite. He has also stated that first place of occurrence is the house of Tejo Mandal, which was burnt and the second place of the occurrence was the bank of Edwara river of village Padarmania where the burning ghat is situated. This witness had recorded the statement of the witnesses. He has also stated that area was extremely affected by Naxalite. He has also stated that first place of occurrence is the house of Tejo Mandal, which was burnt and the second place of the occurrence was the bank of Edwara river of village Padarmania where the burning ghat is situated. This witness had found a funeral pile, in which Tejo Mandal was burnt alive along with the body of Saraswati Devi. He has stated that he could not collect the residue of bones of Tejo Mandal. He has stated that the accused persons were found absconding. This witness has also stated that Sukar Mandal, Bed Prakash, Rajendra and Babulal Mandal had given their statements under section 164 Cr.P.C. 16. PW-14 Biresh Kumar was posted at Giridih Civil Court as Judicial Magistrate, 1st class on 12.1.2014. He has also recorded the statement of Rajendra Mandal, Sukar Mandal and Bed Prakash Mandal under section 164 Cr.P.C. which have been marked as Ext-5 and 5/A and 5/B respectively. 17. The defence had examined three witnesses in support of its case. 18. DW-1 Etwari Mandal has stated that Saraswati Devi was the daughter of Bari Mandal. He has stated that inlaws of Saraswati Devi had killed her for non fulfilment of demand of Rs. 5,000/-. He has further stated that Tejo Mandal was not found in the place where Saraswati Devi was cremated. 19. DW-2 Jagdish has stated on similar terms to what has been stated by DW-1. 20. DW-3 Md. Umar Ansari had proved the formal FIR and fardbeyan of Bhagirth Mandal marked as Ext.A and B. 21. Mr. Jai Prakash Jha, learned senior counsel for the petitioners, has submitted that the entire conviction is based on the evidence of PWs. 10, 11 and 12 but their evidence cannot be taken into consideration simply because of the fact that they were never arrayed as chargesheet witnesses by the Investigating Officer. He has further submitted that FIR was prepared at home and brought to the police station and therefore the same is a doctored document and a very thoughtful and in a premeditated fashion, names of accused persons were inserted. He has also submitted that PWs. He has further submitted that FIR was prepared at home and brought to the police station and therefore the same is a doctored document and a very thoughtful and in a premeditated fashion, names of accused persons were inserted. He has also submitted that PWs. 10, 11 and 12 had although mentioned that they had gone to the police station but however they were not the witnesses to the fardbeyan, which is by itself a vital contradiction. Learned senior counsel submits that in course of investigation, some witnesses had supported the case according to the Investigating Officer but six of the chargsheet witnesses who had claimed themselves to be eye witnesses did not support the prosecution case and therefore they were declared hostile. He has further submitted that PW-10 had merely given statement under section 164 Cr.P.C. and no application was filed by the prosecution under section 311 of Cr.P.C. to get himself examined as a prosecution witness. Learned senior counsel also submits that although PWs. 10, 11 and 12 claims to have followed the villagers to Padarmania but none of them have stated as to the means of transport or as to how they reached the second place of occurrence, which shows that they are tutored witnesses. Learned senior counsel submits that investigation has been perfunctory and faulty inasmuch as the Investigating Officer did not collect the ashes or the residual bones to get necessary forensic test done to ascertain as to whether Tejo Mandal was indeed burnt to death. He has further stated that although the witnesses have disclosed about the assault by a Tangi on Tejo Mandal and blood was dripping but no blood stains were found by the Investigating Officer which further contradicts the case of the prosecution. It has been stated that distance between the first place of occurrence and the second place of occurrence has not been given and no sketch map has been prepared either. Learned senior counsel expresses surprise as to how PW-10 had come to village-Chittakharo when there was no occasion for him to have arrived from a distance of about 20 kilometers. It has been submitted that FIR was instituted after a considerable delay and after its institution the same was sent to the Court not immediately and no explanation has been submitted by the prosecution to explain such delay. 22. It has been submitted that FIR was instituted after a considerable delay and after its institution the same was sent to the Court not immediately and no explanation has been submitted by the prosecution to explain such delay. 22. In support of his contention, learned senior counsel for the appellants has relied upon a case of Jai Prakash Singh vs. State of Bihar and Another, AIR 2012 SC 1676 and State of Rajasthan vs. Teja Singh and Others, (2001) 3 SCC 147 . 23. Learned senior counsel thus concludes his argument by stating that the prosecution having miserably failed to prove its case beyond all reasonable doubt, the appellants deserve to be acquitted from the charges levelled against them. 24. Per contra Mr. Ravi Prakash, learned A.P.P. has submitted while referring to the evidence of the Investigating Officer, PW-13, that no statement was given by PWs. 11, 12 before the police due to fear of arrest in Birni P.S. Case No. 81 of 2003 lodged under sections 304B/498A of the Indian Penal Code against three accused persons including PW-11, PW-12 and the deceased Tejo Mandal. Learned counsel submits that PW-10 in his evidence during trial has stated similar to what has been stated by him in the written statement recorded under section 164 Cr.P.C. Learned counsel submits that motive for the occurrence has been established beyond doubt. It has further been submitted that there was a premeditated plan on the part of the appellants as according to the statement of PW-13, the funeral pyre was sufficiently large to accommodate two persons. It has also been submitted that presence of PW-7 at village-Chittakharo was natural as his presence was required in the back drop of institution of Birni P.S. Case No. 81 of 2003 against his sister, brother in law and niece. Learned counsel submits that at the time of examination of PW-10, defence did not raise any objection and therefore at this stage, such objection does not have any legal sanctity. He has further submitted that so far as PW-11 and PW-12 are concerned, they were examined after application of the prosecution under section 311 Cr.P.C. was allowed. 25. Learned A.P.P. In support of his argument has referred to the case of Himanshu Singh Sabharwal vs. State of Madhya Pradesh and Others, (2008) 3 SCC 602 . 26. He has further submitted that so far as PW-11 and PW-12 are concerned, they were examined after application of the prosecution under section 311 Cr.P.C. was allowed. 25. Learned A.P.P. In support of his argument has referred to the case of Himanshu Singh Sabharwal vs. State of Madhya Pradesh and Others, (2008) 3 SCC 602 . 26. After hearing the learned counsel for the respective sides, we have gone through the Lower Court Records. The entire case of the prosecution virtually rests upon shoulders of PWs. 10, 11 and 12. It is to be seen as to whether the defence has been able to demolish the evidence led by PWs. 10, 11 and 12. All the three witnesses are related to the deceased-Tejo Mandal. PW-10 has described the first place of occurrence, in which Tejo Mandal was assaulted with Tangi and he was forced to sit on a motorcycle and taken to village-Padarmania. This witness has also described the second place of occurrence, which was the cremation ground near the river bank, in which a funeral pyre was made ready and both Saraswati Devi and Tejo Mandal were burnt in the said pyre. The evidence of PW-10 has been consistently corroborated by the evidence of PW-11 and PW-12 who had accompanied PW-10 to village-Padarmania and had seen the occurrence with their own eyes. Although, it has been vehemently argued by the learned senior counsel for the appellants that nothing has been stated as to how PWs. 10, 11 and 12 reached village-Padarmania but it appears from the evidence of the witnesses that the distance between both the place of occurrences is about three kilometers and it was not impossible to have followed the accused persons on foot. The apprehension of an untoward incident the helplessness for not being able to save the deceased, the last ditch effort to save the deceased must have led to a rush of adrenalin for PWs. 10, 11 and 12 to have reached Padarmania. Therefore the argument advanced by the learned senior counsel for the appellants in that respect is negated. Although it appears from the record that summons were made by the Investigating Officer in course of investigation as PWs. 10, 11 and 12 were not shown as chargesheet witnesses but the defence cannot take any advantage of not mentioning of PWs. Therefore the argument advanced by the learned senior counsel for the appellants in that respect is negated. Although it appears from the record that summons were made by the Investigating Officer in course of investigation as PWs. 10, 11 and 12 were not shown as chargesheet witnesses but the defence cannot take any advantage of not mentioning of PWs. 10, 11 and 12 in the chargesheet simply on account of the fact that the statement of PW-10 had been recorded under section 164 Cr.P.C. and so far as PWs. 11 and 12 are concerned, their presence in the trial was on account of the application filed by the prosecution under section 311 of Cr.P.C. having been allowed by the learned trial court. 27. The motive of the appellants is absolutely clear and the act of the appellants was a swift and brutal retaliation to the death of Saraswati Devi in unnatural circumstances. In a premeditated and pre planned manner the accused had come and had taken away Tejo Mandal after brutally assaulting him. Although it has been stated that in absence of ashes or residual bones the death of Tejo Mandal could not be proved but it is a settled law that corpus delicti need not be proved. It would be apt in this context to refer to the case of Ram Gulam Chaudhary vs. State of Bihar, (2001) 8 SCC 311 , wherein it was held as follows:- “23. There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder. Both the courts below have come to the conclusion, based upon the evidence of PWs. 3 and 4 (who were eyewitnesses) that Appellant 9 had killed the accused before the body was taken away by all the appellants. We have read the evidence of all the witnesses. We have given a careful consideration to the material on record. We see no reason to take a different view. 3 and 4 (who were eyewitnesses) that Appellant 9 had killed the accused before the body was taken away by all the appellants. We have read the evidence of all the witnesses. We have given a careful consideration to the material on record. We see no reason to take a different view. The evidence in this case is direct and there is no reason to disbelieve this evidence. We see no substance in the submission of Mr. Mishra that these two ladies could not have seen the boy being killed and could not have in any case come to a conclusion that he had died. Their presence at the place of incident could not be doubted. Their evidence clearly indicates that the incident took place before their eyes. We cannot accept the submission of Mr. Mishra that their evidence discloses that the incident took place outside the courtyard and on the road. Mr. Mishra has relied on stray sentences. The evidence has to be read as a whole. Read as a whole, both the ladies have given positive evidence that the murder took place in the courtyard. We also see no substance in the submission that PW-3 and PW-4 could not positively say that Krishnanand Chaudhary had been killed. The evidence is that Bijoy Chaudhary stated that “he is still alive and should be killed.” On this statement Appellant 9 gave a chhura-blow on the chest. The evidence is that Krishnanand Chaudhary, who was till then struggling twitched and thereafter his body became still. From this it could be concluded that death had taken place. It must be mentioned that even PW-1, whose evidence Mr. Mishra relied upon, has deposed that Krishnanand Chaudhary had died.” 28. The surrounding circumstances, the evidences of the witnesses including the eye witness as well the Investigating Officer prove beyond doubt that Tejo Mandal was forcibly taken away by the appellants and was burnt to death. 29. The death of Tejo Mandal was a grotesque and gruesome murder of a person being burnt alive in a funeral pyre. The anguish of the accused is understandable but the diabolical nature, in which the entire act was orchestrated highlights the cruel and clogged mind set of the appellants. 29. The death of Tejo Mandal was a grotesque and gruesome murder of a person being burnt alive in a funeral pyre. The anguish of the accused is understandable but the diabolical nature, in which the entire act was orchestrated highlights the cruel and clogged mind set of the appellants. In order to avenge the death of Sarswati Devi, whose death was till that time not proved to be homicidal, suicidal or accidental, the appellants became a law unto themselves and committed the ghastly act. Although some doubt has been cast by the learned senior counsel for the appellants with respect to the delay in institution of the FIR but the same can be inferred to be reasonably explained inasmuch as the distance of village-Chittakharo to the police station was about 20 kilometers and after the ill feted incident had taken place the subsequent incident had taken place after 9 A.M. and considering the ghastly nature of the crime committed by the appellants, it cannot therefore be said that an FIR was instituted without any reasonable explanation. So far as sending the FIR to the court, which was received on 10.11.2003, learned APP has stated that 9.11.2003 was a Sunday and the same also appears to be a reasonable explanation for sending the FIR to the court on 10.11.2003. 30. In the case of Jai Prakash Singh (supra), it was held that a promptly lodged FIR reflects the first account of what has actually happened and who was responsible for the offence in question. As has been held above, sufficient and reasonable explanation has been given by the prosecution for the delay in institution of the FIR although it is to be noted that the FIR was lodged after about ten hours from the time of the incident. 31. In the case of State of Rajasthan (supra), it was held that delay in the FIR reaching the court is not tenable because assuming that there were some court holiday that cannot be a ground for the delay in the FIR reaching the Magistrate as requirement of law is that FIR should reach the Magistrate concerned without any undue delay. The aforesaid was one of the several grounds, which were considered by the Hon’ble Supreme Court while upholding the judgment of acquittal passed by the High Court. The aforesaid was one of the several grounds, which were considered by the Hon’ble Supreme Court while upholding the judgment of acquittal passed by the High Court. Therefore the delay in sending the FIR to the court cannot be a sole ground for disbelieving the prosecution case. The inability of the police to act promptly cannot create a shadow over the case of the prosecution as the prosecution case has sufficiently been proved by the evidences on record. 32. The defence has failed to demolish the edifice built by the prosecution and since the involvement of the appellants having been proved beyond doubt in committing such dastardly act, learned trial court on proper appreciation of the evidence on record had rightly convicted the appellants for the offences under sections 147, 342, 323/149, 364/149, 302/149 and 201/149 of the Indian Penal Code whereas acquitting them from the charges levelled under sections 436/149 of the Indian Penal Code. 33. There being no reasons to conclude otherwise, this appeal fails and the same is hereby dismissed. Appeal dismissed.