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2023 DIGILAW 514 (JHR)

Dewani Mandal v. State of Jharkhand

2023-04-17

SANJAY KUMAR DWIVEDI, SANJAYA KUMAR MISHRA

body2023
ORDER : 2. On repeated calls, nobody was appearing for the appellants, as such, by order dated 27.03.2023, Mr. Rahul Kumar, learned counsel was appointed as Amicus Curiae to assist this court in this appeal. 3. Heard Mr. Rahul, learned Amicus Curiae, appearing for the appellants and Mr. Pankaj Kumar Mishra, learned A.P.P. for the State. 4. Reference may be made to the order dated 04.04.2019, wherein it has been recorded that appellant Nos. 2, 3, 6 and 8 have passed away. The other appellants have been given notice about posting of this criminal appeal, except the appellant No. 10 namely Obis @ Obisar Hembram, as he was absconding and his bail was cancelled and the learned court was directed to proceed against the sureties, who stood for the appellant No. 10 and file a report before the next date of posting. 5. The report dated 26.04.2019 has been brought on record, whereby, it has been informed that out of two bailers, one Lilu Mandal died 14-15 years ago and another bailor Sangram Soren received his notice. 6. The further report dated 02.03.2023 suggests that the distress warrant has been issued to the bailor Sangram Soren on 20.02.2023 for forfeiture of surety amount and process under Section 82 Cr.P.C. was also issued against the appellant Obis @ Obisar Hembram. 7. This appeal has been preferred by the appellants against the judgment of Conviction dated 31.08.1994 and Order of Sentence dated 02.09.1994, passed in S.T. No. 56 of 1991 by the learned 3rd Additional Sessions Judge, Deoghar, whereby they have been sentenced to undergo R.I. for life for the offence under Sections 302 read with Section 149 of the Indian Penal Code. 8. P.W.-4 Kusmi Mandalain, who is wife of the deceased Babulal Mandal and informant of the case and on her fardbeyan, the FIR was lodged stating therein that the accused persons named above are residents of the same village Bahadurpur, P.S.-Chitra, District-Deoghar and the houses of both the parties situates near the house of each other. The occurrence of this case as alleged in the fardbeyan (Exhibit-1) starts from 30.10.1990 i.e. Tuesday, on which day, a quarrel between the son of the deceased Babulal Mandal and daughter of accused Nakul Mandal both children aged about six to seven years took place. The occurrence of this case as alleged in the fardbeyan (Exhibit-1) starts from 30.10.1990 i.e. Tuesday, on which day, a quarrel between the son of the deceased Babulal Mandal and daughter of accused Nakul Mandal both children aged about six to seven years took place. Due to this reason the wife of the accused Nakul Mandal came out of the house having a stone piece in her hand and threw it on the wife of the deceased, i.e. P.W.-4 Kusumi Mandalain. In return, Kusumi Mandalain (P.W.-4) also threw the same stone on the wife of the accused Nakul Mandal, which hit on her head. The stone piece was pointed, hence it caused bleeding injury on the head of the wife of Nakul Mandal. 9. Mr. Rahul Kumar, learned Amicus Curiae appearing for the appellants submits that seven witnesses have been examined and all are interested witnesses. He submits that P.Ws. 1 and 2 have specifically stated that they went to the police station on Saturday morning (03.11.1990) and gave the information to the police that their brother has been killed and hung from a palash tree, however, this information about the commission of a cognizable offence was not the basis of the registration of FIR, rather the police came to the village and recorded the fardbeyan of P.W.-4, which then become the basis of the FIR. He further submits that both P.Ws. 1 and 2 as well as the I.O. (P.W. 6) have stated that no one was named as an accused when the information was received in the morning, however, subsequently by afternoon, when the fardbeyan of informant was recorded, the names of all 10 accused persons were taken. He further submits that the SI of the concerned police station proceeded to the place of occurrence to record the fardbeyan of the informant and the Station Diary entry that was made, was never produced before the learned court. He further submits that P.W.-1 was present in the panchayati, but he has not stated anything about any threats given by the accused persons to the deceased. According to him, P.Ws.-4 and 5 have stated that they watched the panchayati from their doorstep, they could not hear clearly as to what talks was happening at the panchayati. He further submits that P.W.-1 was present in the panchayati, but he has not stated anything about any threats given by the accused persons to the deceased. According to him, P.Ws.-4 and 5 have stated that they watched the panchayati from their doorstep, they could not hear clearly as to what talks was happening at the panchayati. He further submits that no person from the village including the Mukhiya or the other Panchs have been examined to prove that any threats were given during the course of panchayati. 10. On the above grounds, learned Amicus Curiae appearing for the appellants submits that there is no specific allegation against all the accused person, rather the only specific allegation is made against Subodh Mandal and Girish Hembrom that they pushed the informant inside her house and kept her confined for two hours, but there is not even a whisper of any specific allegation against other accused persons and they have merely been roped in because of village politics and prior enmity. He further submits that the conduct of the informant and her version of events is rather doubtful and unconvincing, in as much as, she has stated that the deceased was chased by the accused persons when he was in a garden while she was pushed inside the house, and throughout she and her daughter kept crying and screaming, but it is highly improbable that not a single person heard her cries or paid heed to her screams, especially considering the fact that her brother-in-law (P.W.-1) is her immediate neighbor. He further submits that non-examination of any independent witness despite their availability is also fatal to the prosecution version of events, because prior enmity between the parties has already been established. He further submits that non-examination of Medical Officer is also a major lapse on the part of the prosecution since the post-mortem report has not been sufficiently proved to establish that the death has been caused by strangulation and not by voluntary hanging. He further submits that the statement under Section 313 Cr.P.C. has been recorded, but the accused persons have denied specifically and the circumstances not explained elaborately to the accused persons. 11. He further submits that the statement under Section 313 Cr.P.C. has been recorded, but the accused persons have denied specifically and the circumstances not explained elaborately to the accused persons. 11. On these grounds, learned Amicus appearing for the appellants submits that the case of the appellants is fit to be allowed and they may kindly be acquitted by setting aside the impugned judgment, as no case is made out and this court may consider that even if the appellant No. 10 is absconder, no case is made out against him also and this court may interfere in the matter. 12. Mr. Pankaj Kumar Mishra, learned A.P.P. appearing for the State submits that the chain of crime is made out and the learned court has rightly convicted the appellants and there is no illegality in the impugned judgment and due to non-examination of any independent witness and Medical Officer, the case is not vitiated. 13. In view of the above submissions of the learned counsel appearing for the parties, we are required to look into the materials, on the basis of which, the conviction has been made to the accused appellants. Before proceeding further, we would like to deal with the P.Ws. version for coming to the final conclusion. P.W.-1 Shibhu Mandal, who is none else than brother of the deceased, P.W.-2 Bisheshwar Mandal is brother-in-law of the deceased, P.W.-3 Rabi Mandal is cousin brother of P.W.-2, P.W.-4 is Kusumi Mandalain, who is informant and wife of the deceased, P.W.-5 Meena Devi is daughter of the deceased, P.W.-6 Ram Kripal Sharma is the I.O. of case and P.W.-7 is Dashrath Prasad, who has proved the postmortem report. 14. P.W. 1 Shibu Mandal, P.W.-4 Kusumi Mandalain and P.W.-5 Meena Devi have stated that after panchayati, Babu Lal Mandal (deceased) went to the house of his father-in-law at village Dudhicuan, P.S.-Chitra, District Deoghar. Bisheshwar Mandal (P.W.-2) who is brother-in-law of the deceased has also admitted that on Thursday, Babulal Mandal had gone to his house. He stated that the deceased talked about holding of panchayati and decision of the panches of imposition of Rs. 1100/- only as fine and Rs. 500/- as cost of treatment upon Babulal Mandal. 15. P.W.-3 Ravi Mandal has been tendered by the prosecution, who has deposed nothing in his cross-examination. 16. He stated that the deceased talked about holding of panchayati and decision of the panches of imposition of Rs. 1100/- only as fine and Rs. 500/- as cost of treatment upon Babulal Mandal. 15. P.W.-3 Ravi Mandal has been tendered by the prosecution, who has deposed nothing in his cross-examination. 16. P.W.-4 and P.W.-5 are the wife and daughter of the deceased respectively have stated that they have seen Babulal Mandal going with all the accused persons named above chased him and they were going behind Babulal Mandal. They stopped them from coming out of the house and according to P.W.-1 Shibu Mandal, P.W.-4 Kusumi Mandalain and P.W.-5 Meena Devi in the following morning i.e. in the morning, the accused Pahru Roy intimated them that the dead body of Babulal Mandal was hanging with a palash tree. P.W.-1 has requested him to show the said palash tree to show the dead body. 17. P.W.-2 Bisheshwar Manadal has also stated that he had also reached near the dead body on Saturday. He brought a photographer and in presence of the village chaukidar, the photographer got four photographs from different corners of the dead body of deceased Babulal Mandal. These photographs have been marked Exhibits-X, X/1, X/2 and X/3 for identification. 18. P.W.-6 Ram Kripal Sharma was the I.O. of the case. He has recorded the fardbeyan of Kusumi Mandalain (P.W.-4), which was marked Exhibit-1 and on the basis of the said fardbeyan, the FIR was lodged, which was marked as Exhibit-2. He prepared the inquest report, which was also marked Exhibit-3 and also the seizure list was marked as Exhibit-4. He inspected the place of occurrence. He deposed that the place of occurrence is situated on a parti piece of land belonging to the State of Bihar, over which, a tree of parashbani (palash tree) stands. The said tree was having two branches and he found the dead body of the deceased Babulal Mandal hanging with the help of a thin rope of herkudurum having its face in the East. The dead body was hanging on the strength of his right knee, over which, the left leg was also found kept. 19. Exhibit-4 is the seizure list, which shows that the I.O. seized a thin rope of herkudurim of five feet in length. The dead body was hanging on the strength of his right knee, over which, the left leg was also found kept. 19. Exhibit-4 is the seizure list, which shows that the I.O. seized a thin rope of herkudurim of five feet in length. Exhibit-3 is the inquest report, which makes the fact clear that it was not a case of hanging, rather this is a case in which, Babulal Mandal was murdered somewhere else and thereafter hanged with rope. The investigating officer has found the black sign around the neck of Babulal Mandal. He has also found the sign of tying hands. 20. Exhibit-6 is the certified copy of the order passed in Misc. Petition No. 544 of 1986 [Babulal Mandal Versus Pahalu Roy & Ors.], which suggests that both the parties are at the inimical terms. In para-3 of the said petition of the Misc. Case, attached with Exhibit-6, clearly shows that the accused persons were threatening the deceased Babulal Mandal with dire consequence. On Tuesday, quarrel between the children of Babulal Mandal and Nakul Mandal has occurred and thereafter between their wives, on which, a panchayati was held on Wednesday, wherein the Babulal Mandal was imposed a fine of Rs. 1100/- and also the cost of medical treatment of Rs. 500/-, which the deceased did not pay and nonpayment of the imposed amount, assembled the accused persons in mind and body and they decided to do away with his life. Thereafter, on Friday at evening at about 6.00 P.M., after coming from his sasural, when Babulal Mandal was going to see his field from his house, all the accused persons having common object of killing him and thereafter they chased him. 21. Looking into the evidence of P.W.-5, we find that there is no eyewitness to the occurrence. Further we find that all the witnesses are interested witnesses and there is no doubt that the testimony of interested witness cannot be mechanically overruled and if it is consistent, it can be relied upon and the conviction can be based on it because an interested witness is not likely to leave out real culprit. However, in the case in hand, the interested witnesses were not truthful and their presence itself was doubtful. 22. However, in the case in hand, the interested witnesses were not truthful and their presence itself was doubtful. 22. As discussed hereinabove and looking into the post-mortem report (Exhibit-5), we find that one deep ligature mark was present on the front and side of the neck up to the mastoid process of skull of both sides. The colour of ligature mark was black and it was accompanied by small abrasion over the ligature mark. Knot mark was not visible on any side of the neck. 23. None of the witnesses have given the specific allegation against all the accused persons, rather the specific allegation is only against Subodh Mandal and Girish Hembrom that they pushed the informant inside her house and kept her confined for two hours. The independent witnesses were there, however, non-examination of any independent witness is fatal to the prosecution version of the evidence. The Medical Officer has not been examined, which is a major lapse on the part of the prosecution and the said post-mortem report has not been sufficiently proved to establish the cause of death of the deceased. 24. It is well settled that in the case of witnesses, who are characterized as interest, the court should examine their evidence with care and caution to exclude the possibility of false implication, if their evidence would otherwise be satisfactory and reliable, there would be nothing wrong in the court acting on their evidence. However, in the case in hand, the interested witnesses are not inconsistent with the crime and their statements are contradictory. 25. There is no direct evidence to connect the accused with the crime and the prosecution relied on circumstantial evidence. It is settled law, to convict an accused on the basis of circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused. The circumstantial evidence should not only be consistent with the guilt of the accused, but should be inconsistent with the innocence of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused. The circumstantial evidence should not only be consistent with the guilt of the accused, but should be inconsistent with the innocence of the accused. Bearing these principles in mind, we shall examine how far the prosecution has succeeded in establishing that the accused was guilty of the offences with which they were charged. 26. There are no eye witnesses and the guilt of the accused depends solely on circumstantial evidence. The mode of evaluating circumstantial evidence has been stated by the Supreme Court in Hanumant v. State of M.P., reported in (1952) 2 SCC 71 : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused, again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 27. In the case in hand, the conviction has been made on the circumstantial evidence and solely based on court’s approach and in this regard, further reference may be made to the case of Chandran @ Surendran & Anr. Versus State of Kerala, reported in 1991 Supp (1) SCC 39, wherein the Hon’ble Supreme Court in paras-12 and 13 held as follows:- “12. Admittedly, there is no direct evidence connecting the appellants with the offence. No identification parade seems to have been conducted although PW 33 has deposed that he requested for an identification parade. Further, there is no evidence about the movement of these appellants near the scene either before or after the occurrence. Therefore, the inference of guilt of the appellants is to be drawn from circumstantial evidence only. No identification parade seems to have been conducted although PW 33 has deposed that he requested for an identification parade. Further, there is no evidence about the movement of these appellants near the scene either before or after the occurrence. Therefore, the inference of guilt of the appellants is to be drawn from circumstantial evidence only. It is needless to emphasise that those circumstances should be of definite tendency pointing towards the guilt of the appellants and in their totality must unerringly lead to the conclusion that the offence was committed by the appellants and none else. The circumstantial evidence adduced by the prosecution in the instant case is two fold: (1) The recovery of MOs 1 to 3 said to have been made in pursuance of the statement of the first accused to the police. (2) The evidence of PW 30, the Fingerprint Expert to the effect that the finger impressions found on the two glass pieces seized from the scene of the occurrence were found on comparison and examination as those of appellants 1 and 2. 13. As the appellants are awarded the extreme penalty of law only on the above two pieces of evidence, we have to scrutinise these two circumstantial pieces of evidence in a very careful, cautious and meticulous way and see whether this evidence can be accepted and acted upon to mulct these appellants with this dastardly crime. The fact that these two murders which are cruel and revolting had been perpetrated in a very shocking nature should not be allowed in any way to influence the mind of the court while examining the alleged involvement of the appellants. It is worthwhile to recall an observation of this Court in Datar Singh v. State of Punjab [ (1975) 4 SCC 272 : 1975 SCC (Cri) 530] articulating that (SCC p. 275, para 3) “Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime ….” 28. The doctor, who has conducted the post-mortem examination has not been examined, which is vital latch on the part of the prosecution. There is no eyewitness to the occurrence. Reference may be made to the case of Kapildeo Sinha Versus Kirandeo Prasad & Ors., reported in (2008) 14 SCC 658 , wherein the Hon’ble Supreme Court in para-6 held as follows:- “6. There is no eyewitness to the occurrence. Reference may be made to the case of Kapildeo Sinha Versus Kirandeo Prasad & Ors., reported in (2008) 14 SCC 658 , wherein the Hon’ble Supreme Court in para-6 held as follows:- “6. Before the High Court the respondent No.1 pointed out that the police officer who made investigation of the case was not examined in the trial court causing serious prejudice to him. The doctor who conducted autopsy over the dead body of the deceased was also not examined.” 29. In view of the above, it is well settled principles that on the basis of circumstantial evidence, the case of the prosecution needs to be examined whether the circumstances are established and that they form a complete chain in establishing the guilt of the accused. In the case in hand, it is admitted fact that there is enmity between the parties, however, when the case rests upon circumstantial evidence, such evidence must satisfy and the same are quoted hereinabove in the case of Kapildeo Sinha (Supra). 30. In view of the above facts, reasons and analysis, we find that there is no eyewitness to the occurrence and only on the basis of circumstantial evidence, all the accused persons have been convicted. 31. Accordingly, the judgment of Conviction dated 31.08.1994 and Order of Sentence dated 02.09.1994, passed in S.T. No. 56 of 1991 by the learned 3rd Additional Sessions Judge, Deoghar, whereby they have been sentenced to undergo R.I. for life for the offence under Sections 302 and 149 of the Indian Penal Code, are hereby, set aside. We also find that against the absconding accused also there is nothing found as such, this appeal is also allowed in his favour. The appellants are already on bail, as such, they are discharged from the liabilities of their respective bail bonds. 32. Before parting with this Judgment, we also must record that we have been given able assistance by the learned amicus curie Sri Rahul Kumar, and we direct the Secretary, High Court Legal Services Authority, to make the payment of prescribed remuneration to him. Let a copy of this Judgment be also sent to the Secretary, High Court Legal Services Authority, for the needful. 33. Accordingly, this appeal is allowed. 34. Let the Lower Court Records be sent back forthwith along with a copy of this order.