1
CRIMINAL APPEAL (DB) NO. 80 OF 2004
With
CRIMINAL APPEAL (DB) NO. 292 OF 2004
With
CRIMINAL APPEAL (DB) NO. 275 OF 2004
Against the judgment of conviction and order of sentence dated
15.12.2003 and 17.12.2003 respectively passed in Sessions Case No. 168
of 1996 by Sri Ravindra Nath Verma , Sessions Judge, Dumka.
Kishore Mandal -----------Appellant ( in Cr.A. No. 80 of 2004)
Ashok Mandal ---------Appellant ( in Cr.A. No. 292 of 2004)
Bijay Singh ---------Appellant ( in Cr.A. No. 275 of 2004)
Vs.
The State of Jharkhand -----------Respondent ( in all the cases)
For the Appellants: Mr. Kaushlendra Prasad
( in Cr. A 80/04)
Mr. B.M. Tripathy, Sr. Advocate
Ms. Nutan Sharma
( in Cr.A. 292 /2004)
Mr. Rajeev Sharma, Sr. Advocate
Mr. Manoj Kumar
Mr. Mithilesh Singh
( in Cr.A. 275/2004)
For the State: Mr. D.K. Prasad, APP ( in all the cases)
PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
HON'BLE MR. JUSTICE PRASHANT KUMAR
By Court: In these appeals, the appellants Bijay Singh, Ashok Mandal and
Kishore Mandal challenged the judgment dated 15.12.2003 passed by learned
Sessions Judge, Dumka in Sessions Case No. 168 of 1996 whereby and
whereunder he convicted the appellants under section 302/34 of the IPC read with
section 120B of the IPC. The appellant Bijay Singh and Ashok Mandal also
convicted under section 27 of the Arms Act. All the appellants are sentenced to
under go imprisonment for life for committing the offence under section 302/34 IPC
and they are also directed to pay fine of Rs. 5,000/- each and in default of the same
to undergo R.I. for one year. The appellants Bijay Singh and Ashok Mandal are
also sentenced to under go R.I. for seven years for the offence under section 27 of
the Arms Act and to pay fine of Rs. 2000/- each and in default of the same to
undergo R.I. for six months.
2
2. As all the aforesaid three appeals arose from the common judgment
of conviction and order of sentence, these appeals were heard together and are
being disposed of by this common judgment.
3. The case of the prosecution, in brief, as per the fardbeyan of P.W. 12,
Bagal Chandra Mandal is, that on 17.7.1995 in the evening at about 7.30 to 8 p.m.
while he was in front of his house, appellant Ashok Mandal, Kishore Mandal along
with another person, who covered his face with a beard mask came there. The
aforesaid beard- masked person asked his wife to call Kalicharan Mandal. The
informant identified him as Bijay Singh resident of sonuadangl, by his voice. The
informant’s wife called her son Kalicharan Mandal, Kalicharan Mandal came on call
of his mother along with his son Pappu. It is alleged that the person having beard
mask, asked Kalicharan for doing shuttering work in his building. Kalicharan
expressed his inability to do the work for 10 to 15 days as his wooden planks were
engaged somewhere else. Hearing the same, Bijay Singh and Ashok Mandal took
out revolver and fired on Kalicharan causing serious injuries to him. Kalicharan fell
on the ground. The informant and his wife then started crying and raising alarm.
The neighbour, Ram Prasad Mandal put off light of his house and taking advantage
of the darkness, the accused fled away. It is further alleged that at the time of
fleeing, accused persons exploded a bomb, which caused injury to the grand son of
informant, Pappu on his left hand. They rushed Kalicharan to hospital but he was
declared dead.
4. On the basis of aforesaid statement, police instituted Dumka ( T) P.S.
Case No. 093 dated 17.7.1995 under section 302/34 of the IPC and took up
investigation. After completing the investigation, the police submitted charge sheet
against the appellants along with one Ram Prasad Mandal under section 302/34 of
the IPC under section 120B of the IPC and also under section 27 of the Arms Act.
Learned CJM, Dumka took cognizance of the offence and committed the case to
the court of sessions as the offence under section 302 of the IPC is exclusively
triable by the court of sessions.
5. Learned court below framed charges against the appellants and Ram
Prasad Mandal under section 302/34 and 120(B) of the IPC. Appellant Ashok
3
Mandal and Bijay Singh were additionally charged under section 27 of the Arms
Act. The charges were read over and explained to the accused, including the
appellants, to which they pleaded not guilty and claimed to be tried.
6. The prosecution examined altogether 20 witnesses in support of its
case. The Inquest Report (Ext.7), Fardbeyan (Ext.5), Seizure list ( Ext. 6), Injury
Report of Pankaj Mandal ( Ext.3), Post Mortem Report ( Ext.4), the Certified copy
of entry of non FIR 22 of 63 in the surveillance registrar of S.P., Dumka (Ext.8).,
Certified Copy of order dated 14.3.1989 passed by Sr. R.K. Bhagat, Executive
Magistrate, Dumka in T.R. Case No. 202 of 1988 ( Ext.9) were also brought on
record.
7. The statements of accused persons, including the appellants were,
thereafter, recorded under section 313 of the Cr.P.C. in which their defence is of
total denial and false implication. One witness was also examined on behalf of the
defence and number of documents ( Ext.A to Ext.N) were also brought on record.
8. After considering the evidence available on record, the learned
Sessions Judge, Dumka vide his judgment dated 15.12.2003 convicted and
sentenced the appellants. Aggrieved by the same, the present appeals have been
filed.
9. While assailing the judgment of learned court below, Sri Rajeev
Sharma, Senior Advocate appearing for the appellant Bijay Singh has submitted
that it is an admitted position that one of the accused who accompanied appellants
Ashok Mandal and Kishroe Mandal had covered his face with beard mask. It is
further submitted that the informant in his fardbeyan as well as P.W. 10 in her
statement before the police had stated that they identified the aforesaid beard mask
person by his voice. It is admitted by P.W. 10 and P.W. 12 that the appellant Bijay
Singh is resident of different Mohalla and they had no acquaintance and/or relation
with him. It has also come in evidence that there is no close relationship in between
the family of witnesses and Bijay Singh. Under the said circumstance, the claim of
witnesses that they have identified appellant Bijay Singh by his voice cannot be
accepted and it is not safe to convict the appellant Bijay Singh only on the basis of
aforesaid shaky evidence. The appellant Bijay Singh has filed a complaint case
4
against the S.I., N.C. Mishra, the then Officer-in-Charge, Dumka( T) police station
vide Ext-A. For the said reason the appellant Bijay Singh has been falsely
implicated in this case at the behest of police.
10. Sri B.M. Tripathy, learned senior counsel appearing for appellant
Ashok Mandal and Sri Kaushlendra Prasad learned counsel appearing for appellant
Kishore Mandal have submitted that the occurrence took place at 7.30 to 8 p.m. It
has come in evidence that on the date of occurrence there was a cloudy weather
and it was also drizzling. There was no light on the electric pole as the bulb was
fused from a long ago. Under the said circumstance, the claim of P.W. 10, 12 and
14 that they identified these appellants does not inspire confidence. The claim of
P.W. 12 that he had witnessed the occurrence is also falsify by the evidence of
P.W. 10 who has stated that after hearing the sound of firing and explosion of
bomb, her husband and daughter-in-law arrived at the scene of occurrence. Thus,
entire evidence of P.W. 12 is liable to be excluded from the arena of consideration.
He further submitted that the statement of P.W. 10 is also not acceptable, because
she had tried to falsely implicate co-accused Ram Prasad Mandal by saying that
these appellants along with Bijay Singh came at the place of occurrence on being
directed by Ram Prasad Mandal. There is enmity between the parties since long
and therefore there is every chance of their false implication by the informant and
their witnesses. It is further submitted that the police had not submitted charge
sheet under section 3/ 4 of the Explosive Substance Act, thus the manner of
occurrence as stated by the witnesses that at the time of retreat the appellants
exploded bomb due to that P.W. 14 received injury, is not correct. Even learned
court below had not framed any charge against the appellant either under section
3 /4 of the Explosive Substance Act or any other sections of the IPC for the injury
caused to P.W. 14. At the time of post mortem examination, doctor found
decomposition in the dead body in advance stage, which goes to show that the
death of the deceased took place 3 to 4 days earlier from the time of post mortem
examination. That being so, then the time of occurrence, place of occurrence and
manner of occurrence as stated by the prosecution witnesses P.W. 10,12 and 14
5
becomes suspicious and unreliable. On such inadmissible evidence the impugned
judgment of conviction and order of sentence, cannot be sustained.
11. On the other hand, learned Additional P.P. submitted that P.W. 10
and 12 have deposed in the court that they have identified appellant Bijay Singh
even otherwise. Under the said circumstance, the identification of Bijay Singh who
is known to the prosecution witnesses from before the occurrence, is sufficient for
his conviction. The I.O. and other witnesses have categorically stated that in front of
the house of Ram Prasad Mandal ( father of Ashok and Kishore Mandal) an electric
bulb was burning. It has also come in the evidence that the house of appellant
Ashok Mandal and Kishore Mandal situate in front of the house of deceased. Thus,
the aforesaid two appellants are well known to P.W. 10, 12 and 14, and they can
easily be identified even in dim light. It is further submitted that only because P.W.
10 stated that P.W. 12 and wife of deceased came after hearing the sound of firing
and explosions, it cannot be said that P.W. 12 had not seen the occurrence.
P.W.10 is an illiterate lady and the aforesaid statement was given by her in cross
examination. The said statement must have come in the stress of cross
examination. The statement of P.W.10, 12 and 14 with regard to the manner of
occurrence is fully corroborated by the doctor who held post mortem examination
on the dead body. In view of the above, there is no illegality and/or irregularity in
the impugned judgment of the court below.
12. Having heard the submissions, we have gone through the record of
the case and carefully scrutinized the evidence available on record. As noticed
above, in the instant case prosecution had examined altogether 20 witnesses. P.W.
1 is Bhairaw Nath Ram, P.W. 2 is Mukta Devi, P.W. 3 is Kapil Rai, P.W. 5 Chhotu
Rai is witness to inquest. P.W. 6 Sudarsan Sharma is hearsay witness. P.W. 4 Ajit
Sah, P.W. 7 Raju Chalak have been tendered for cross examination. P.W. 8 Gopal
Pd. Singh is a seizure list witness, P.W. 9 Nitai Dutta has been declared hostile.
P.W. 10 Chintamani Mandalain is the mother of deceased and eye witness to the
occurrence, P.W. 11 Karuna Devi is sister-in-law of the deceased. P.W. 12 Bagal
Chandra Mandal is the informant and an eye witness to the occurrence. P.W. 13
Subodh Kumar Mandal, the brother of deceased, is a hearsay witness. P.W. 14
6
Pankaj Kumar Mandal @ Pappu is the son of the deceased and an eye witness to
the occurrence, P.W. 15 Basanti Devi is the wife of the deceased, P.W. 16 Dr.
Rama Nand Sah is the doctor who had examined the injuries of Pankaj Mandal and
proved injury report ( Ext.3), P.W. 17 Dr. Atul Kumar Mallick is the doctor who held
autopsy on the dead body of deceased Kalicharan Mandal, P.W. 18 Yugal Kishore
Mandal is another brother of deceased, P.W. 19 Shailendra Kumar Jha is the main
Investigating Officer, P.W. 20 Mukti Nath Mishra is a police officer posted at Dumka
(Town) Police Station who seized blood stained earth and two pellets from the
place of occurrence on the direction of P.W. 19. The prosecution had also proved
and exhibited signatures of the witnesses on Inquest Report, Fardbeyan, Seizure
list which were marked as Ext. 1 series. Injury report of Pankaj Mandal has been
proved and exhibited as Ext- 3 &3/1. Post Mortem Report is Ext.4, Fard Beyan has
been proved and marked as Ext.5, Seizure list proved and exhibited as Ext.6 and
the Inquest report is Ext.7. The certified copy of register kept in the office of S.P.
Dumka regarding non FIR No. 22 of 63 is Ext.8, the certified copy of order dated
14.3.1989 passed by Sri R.K. Bhagat, Executive Magistrate, Dumka in T.R. Case
No. 202 of 88 is Ext. 9 .
13. On behalf of the defence one witness, namely, Braj Kishore Singh has
been examined to prove the signature on the complaint petition marked as Ext. A
and A/1. Besides that the defence had also brought on record and exhibited the
following documents:- Certified copy of order dated 21.1.1998 passed by Sri
Deepak Kumar, J.M. 1st Class, Dumka in P.C.R. Case No. 13 /95 as Ext.B, certified
copy of order dated 9.1.95 by C.J.M. Dumka, in Dumka ( T) P.S. Case No. 169/94
as Ext. C, Certified copy of order dated 10.1.95 passed by the C.J.M. Dumka in
Dumka (T) P.S. Case No. 160/94 as Ext. D, certified copy of order dated 28.5.92 in
C.R. 591/91 as Ext. E, certified copy of Judgment passed by Sri L. Ram, S.D.J.M.,
Dumka on 21.8.96 in T.R. Case No. 648 /96 as Ext.F, certified copy of deposition of
Ram Charitra Singh in G.R. Case No. 240/95 as Ext.G, certified copy of Judgment
of G.R. Case No. 24/95 passed by Sri L. Ram, S.D.J.M. Dumka on 6.6.96 as Ext.H,
Certified copy of judgment of G.R. Case No. 944/92 passed by Sri Kiran Shankar,
J.M. !st Class, Dumka on 19.8.96 as Ext.I, certified copy of judgment of G.R. Case
7
No. 884/92 passed by Sri Kiran Shankar on 19.8.96 as Ext.J, Certified copy of
judgment of G.R. Case No. 918 /92 by Sri Kiran Shankar, J.M. 1st Class, Dumka on
20.8.96, as Ext.K, certified copy of judgment of G.R. Case No. 1084/94 passed by
Sri Binod Pd. Singh, J.M. 1st Class, Dumka dated 6.8.98 as Ext.L, certified copy of
Voter list of Dumka Assembly Constituency 166 of Serial No. 161 to 165 as Ext.M
and certified copy of judgment of G.R. Case No. 259/88 by Sri L. Ram, S.D.J.M.,
Dumka dated 6.12.93 as Ext.N.
14. P.W. 17 Dr. Atul Kumar Mallick is the Medical Officer who conducted
post mortem examination on the dead body of Kali Charan Mandal. P.W. 17 stated
that on 19th July 1995 at 12.30 p.m. when he was posted as Medical Officer at
Jawahar Lal Nehru Medical College and Hospital, Bhagalpur, he held post mortem
examination on the dead body of Kali Charan Mandal and found following
antemortem injuries:-
(i) One abrasion 1/2′”x1/4″ over posterial part of inner aspect of
left elbow.
(ii) One wound of entry with inverted margin1″x1/2xxleading to
left chest cavity was present in left axillary in mid axillary line at
the level of 6th rib. The bullet after causing fracture of left 6th rib
entered left chest cavity, pierced left lung and its pleura, right
lung and its pleura and after causing fracture of 4th rib came
out in right axilla near anterior axillary fold. This wound of exit
had everted margin and measured ¼”x1/4″. Both chest cavities
were filled with blood and blood clot. Both lungs were pale
chambers in both sides of heart were empty.
(iii) One wound of entry with inverted margin ¾”x1/2″ leading to
left chest cavity and abdominal cavity was present. On lower
part of left side of chest in axilla near posterior axillary fold at
the level of 10 rib. The pillet after causing fracture of 6th &10th
rib pierced diapharagm on left side, left lob of liver, loops of
intestine and came out through a wound of exit with everted
margina 1/3″x1/4″ on lower and outer parts of right side of
abdomen in the right. I.A. Kesha. The abdominal cavity was
filled with blood and blood clots. All abdominal solid viscera
were pale. The stomach contained almost completely digested
pasty food and its mucus was pale.
8
15. P.W. 17 found that all the above injuries were ante-mortem. Injury No.
1 was simple and was caused by hard and blunt substance. Injury no. 2 and 3 were
grievous and dangerous to life in ordinary course of nature and caused by fire arm.
In his opinion the cause of death was haemorrhage and shock. According to him,
time elapsed since death was 36 to 48 hours from the time of the post mortem
examination. He proved the post mortem examination report as Ext.4. Thus, from
the evidence of P.W. 17 it is well proved that Kali Charan Mandal died of fire arm
injury.
16. P.W. 1 stated that at the time of occurrence he was present in his
house and he heard the sound of two explosions at the interval of 10 to 15 seconds.
He further states that after sometime when he came out of his house he saw the
crowd assembled there. He also went there and found Kalicharan Mandal lying on
the ground in injured condition. He further stated that at the place of occurrence
none had disclosed the name of person who had made explosion. P.W. 2 Mukta
Devi had also stated that at the time of occurrence she was present in her house
and she also heard the sound of explosion thereafter she closed her door. However
she opened the door after the people gathered but she did not come out of her
house. P.W. 3 Kapil Rai had stated that at the time of occurrence he had gone for
easing and there he heard the sound of explosion. He did not state anything more
about the occurrence. P.W.4 has been tendered for cross examination and during
cross examination he stated that his house situates at a distance of 300 yards from
the house of informant. P.W. 5 Chhotu Rai had stated that the inquest report of
deceased Kali Charan Mandal was prepared in his presence. He further stated that
he and Yugal Kishore Mandal put their signatures on the said inquest report. P.W. 6
Sudarsan Sharma had deposed that at the time of occurrence he was in his shop.
He heard the sound of explosion and closed his shop. He further deposed that after
sometime he came out of his shop and went to hospital. There he saw dead body of
Kali Charan Mandal. He proved his signature on the fardbeyan. P.W. 7 Raju Chalak
has been tendered for cross examination. P.W. 8 Gopal Prasad Singh had stated
that in his presence blood stained earth was seized. He proved his signature on the
9
seizure list. P.W. 9 Nitai Dutta, also a seizure list witness, had proved his signature
on the said seizure, but he was declared hostile and his attention was drawn to his
previous statement made before the police. Thus from the perusal of evidence of
P.W. 1 to 9, we find that their evidence is not very much relevant for proving the
charges leveled against the appellants.
17. P.W. 10 Chintamani Mandalain is the mother of deceased. She
stated that at the time of occurrence she was sitting in front of her house. At that
time Bijay Singh, Ashok Mandal and Kishore Mandal had come. Bijay Singh had
covered his face with beard mask. Bijay Singh wanted to see Mistri ( Kalicharan).
Kalicharan and his son Pankaj came out of the house, Bijay Singh asked
Kalicharan to do shuttering work. When Kalicharan replied that he was unable to do
the work for next 15 days, Bijay Singh and Ashok Mandal took out pistols and fired
at Kalicharan. On receiving injury Kalicharan fell on the ground. Kishore Mandal
then hurled a bomb. The splinter of said bomb caused injury to Pankaj. The
accused persons thereafter fled away. Kalicharan was taken to Hospital where he
died. She further admits that there was enmity and litigations between her family
members and the accused persons, which led to the said occurrence. In her cross
examination she stated that she saw the occurrence in the light of street bulb. She
further stated that she did not remember about her statement before the I.O. that
she identified Bijay Singh by his voice. However, P.W. 19 ( I.O.) stated that this
witness had stated before him that she identified appellant Bijay Singh by voice.
This witness also stated that after hearing the sound of firing and explosion her
husband and daughter-in-law had come out of the house.
18. P.W. 11 Karuna Devi is the sister-in-law of the deceased. She stated
that after hearing the sound of firing she came out of the house. She then deposed
that her father-in-law and mother-in-law disclosed that Ashok Mandal and Bijay
Singh had fired from their pistols, whereas accused Kishore Mandal had exploded
bomb. She saw injured Kalicharan lying on the ground. She further states that
Pankaj Mandal had also received injury on his hand.
10
19. P.W. 12 Bagal Chandra Mandal is the informant of this case and
claimed himself to be the eye witnesses of the occurrence. He deposed that at the
time of occurrence he was out side his house. Bijay Singh, Ashok Mandal and
Kishore Mandal came there and asked about Kalicharan Mandal. On being called
Kalicharan came out. Thereafter Bijay Singh asked him to do shuttering work in his
building, when Kalicharan showed his inability to do the work for next 15 to 20
days, as wooden planks were engaged somewhere else then there was exchange
of hot words and altercation. In the meantime Bijay Singh and Ashok Mandal took
out their revolvers and fired at Kalicharan. On receiving injury, Kalicharan fell on the
ground. He further stated that Ram Prasad Mandal put off the electric light and the
aforesaid accused persons fled away. However at the time of fleeing they exploded
a bomb, which caused injury to Pankaj. Kalicharan was then taken to hospital,
where he died. He stated that his fardbeyan was recorded in the Hospital. During
the cross examination, he admits that he had identified Bijay Singh by voice.
20. P.W. 13 Subodh Kumar Mandal is the brother of deceased. He stated
that at the time of occurrence he was not present in his house. However after
receiving information he went to hospital and saw the dead body of his brother. He
further stated that his father disclosed that Ram Prasad, his two sons and Bijay had
come to his house and shot dead his brother.
21. P.W. 14 Pankaj Kumar Mandal @ Pappu is the son of deceased. He
is also an eye witness to the occurrence. This witness stated that on being called
he along with his father came out of the house. He saw Kishore Mandal, Ashok
Mandal and Bijay Singh firing at his father and fleeing away. He further deposed
that at the time of fleeing, the accused persons exploded a bomb. He also
received injury by the splinter of said bomb. In his cross examination, attention was
drawn on his previous statement that he had not taken the name of appellant Bijay
Singh before the Investigating Officer. To which he replied that he has taken his
name before the I.O. However, from the perusal of evidence of P.W. 19, we find
that the I.O. had categorically stated that this witness had not taken the name of
Bijay Singh before him.
11
22. P.W. 15 Basanti Devi is the wife of deceased. She stated that at the
time of occurrence her father-in-law was out side the house. On being called, her
husband and son Pankaj went out of the house. After 1-2 minutes she heard the
sound of firing. Whereupon she came out and saw that her husband was injured
and lying on the ground and her son also received injury on his left hand. She
further states that she saw that Kishore Mandal and Ashok Mandal and one person
having small beard were fleeing away. In her cross examination, she stated that her
mother-in-law had called her husband. At paragraph no 8 she admits that she had
not taken the name of Bijay Singh before the police nor she had identified him in
the T.I. parade.
23. P.W. 16 Dr. Rama Nand Sah examined the injuries of Pankaj Mandal
on 17.7.95 at 9 p.m. and found lacerated wound ¼”x1/8″x1/8″ on the left arm.
According to him the said injury was caused by hard and blunt substance. He
stated that the said injury may be possible by hard particles. He has proved the
injury reports. (Ext. 3 &3/1).
24. P.W. 18 Jugal Kishore Mandal is also one of the brothers, of the
deceased. He is hear-say witness on the point of occurrence. He stated that after
receiving the information he went to the hospital. He further said that in his
presence the inquest report was prepared and has had put his signature as a
witness. He proved his signature on the inquest report.
25. P.W. 19 Shailendra Kumar Jha is the Investigating Officer. He
deposed that on 17.7.1995 he received information regarding the occurrence and
after making entry in the station diary he along with other police officials went to the
place of occurrence where he came to know that the deceased Kalicharan Mandal
was taken to hospital. Whereupon he went to Dumka Hospital. There he recorded
the fardbeyan of P.W. 12. He has proved the fardbeyan, marked as (Ext. 5). He
then stated that on the basis of said fardbeyan the FIR was drawn and
investigation was taken up. He had then inspected the place of occurrence. On his
instruction P.W. 20 seized blood stained earth and pellets and prepared seizure list.
He produced and proved the blood stained earth and pellet as material Ext- I. He
12
also prepared inquest report (Ext.-8). After completing the investigation, he
submitted charge sheet. In his cross examination, he stated that though on the
electric pole at Tinmohani, electric bulb fused, a bulb was burning in front of the
house of the accused. He has further stated that P.W. 10 Chintamani Mandalain
stated before him that she had identified the accused, who had covered his face
with beard mask by his voice. He stated that Pankaj Kumar had not taken the
name of Bijay Singh.
26. P.W. 20 Mukti Nath Mishra is another Police Officer who had seized
blood stained earth and two pellets from the place of occurrence. He has prepared
seizure list in presence of witnesses. He has also proved the blood stained earth
and pellets, material Ext- I.
27. D.W. 1 Braj Kishore Singh is an advocate clerk who formally proved
signature of Bijay Singh on the complaint petition which has been marked as Ext. A
to A/1. However, during the cross examination, he deposed that he did not know
the contents and facts of the said complaint case.
28. Thus, from the evidence of P.W. 10, 12 and 14, it is clear that
appellant Ashok Mandal, Kishore Mandal and one person who covered his face
with beard mask had come to the place of occurrence and called deceased Kali
Charan Mandal. It is also evident from the evidence of aforesaid three witnesses
that Ashok Mandal and another person who covered his face with beard mask had
fired at Kali Charan Mandal due to that he received injury and fell on door-step.
The doctor P.W.- 17 had also found two wounds of entry near the left chest and
two wounds of exit. P.W. 20 had seized two pellets from the place of occurrence
and same was produced in court. Thus, the statement of P.W. 10, 12 and 14 find
full support from the evidence of the doctor and I.O. The aforesaid three witnesses
had stated that at the time of retreat, appellant Kishore Mandal had hurled bomb
and injury was caused to P.W. 14 by the splinters. The aforesaid statements of
P.W. 10, 12 and 14 were not specifically disputed by the defence. P.W. 16 was the
doctor of Sadar Hospital, Dumka. He examined the injury of P.W. 14 on the same
day at 9 p.m. and proved his injury report which also shows that P.W. 14 received
13
injury. He further stated that the said injury is possible by a hard particles. Under
the said circumstance, the manner of occurrence as stated by the aforesaid three
witnesses find full support from the doctors P.W. 16 and 17. as also from the
physical finding of two Investigating Officers P.W.s. 19 and 20. Moreover the other
witnesses P.W. 1, 2, 3, 6, 8, 13 and 15 also stated that they also heard the sound of
explosion. P.W. 1 further stated that after sometime when he went to the place of
occurrence he found the deceased lying on the ground in injured condition. Thus,
this witness also corroborates the statement of aforesaid eye witness.
29. The submission of learned counsel for the appellants that in view of
statement of P.W. 10, at paragraph no. 23 it cannot be said that P.W. 12 is the eye
witness, cannot be accepted. It has to be kept in mind that P.W. 10 is an illiterate
lady. The Supreme Court in Krishna Mochi Vs. State of Bihar ruled that “a
witness may not stand to the test of cross examination, which may be sometime
because he is a bucolic person and is not able to understand the question put to
him by the skillful cross examiner and at times, under the stress of cross
examination, certain answers are snatched from him. When a rustic or illiterate
witness faces an astute lawyer, there is bound to be imbalance and therefore minor
discrepancies have to be ignored.” (emphasis added) , reported in 2002(2) East.
Criminal Cases 156(SC).
30. The aforesaid statement at paragraph no. 23 appears to be snatched
from P.W. 10 under the stress of cross-examination, taking the advantage of her
illiteracy, though she might not have even understood the question. Moreover the
presence of P.W. 12 at the place of occurrence at the time of occurrence is also
corroborated from the deposition of P.Ws. 11, 14 and P.W. 15 who had
categorically stated that at the time of occurrence P.W. 12 was in front of his house.
Thus, only because of some stray statement of P.W. 10 at paragraph no. 23
testimony of P.W. 12, who is an eye witness of the occurrence can not be
discarded.
31. It is next submitted by the learned counsel for the appellants that the
doctor who conducted autopsy on the dead body has specifically mentioned that
14
the body was on advance stage of decomposition. That goes to suggest that the
occurrence must have been taken place 3 to 4 days prior to the date of post
mortem examination. The time of occurrence as well as manner of occurrence as
stated by the prosecution witnesses cannot be accepted.
32. In our considered view, the aforesaid submission has no substance.
In the postmortem report it is stated that in the dead body rigour motis was absent.
Decomposition is in advance stage with formation of plebs, pilling out of skin at
places and protusion of eye and tongue. The doctor opined that the time of death
elapsed was within 36 to 48 hours from the time of post mortem examination. It is
relevant to mention that the post mortem took place on 19.7.1995 at 12.30 Noon
and the occurrence had taken place on 17.7.1995 at 7.30 to 8.30 p.m. and from
the time of occurrence, the post mortem was conducted within 48 hours. It is worth
mentioning that while cross examining the doctor, no question was put to him as to
when the decomposition commences in the dead body. As per the Modi’s Medical
Jurusprudence and Toxicology, 23rd Edition, during the hot months from April to
October in Northern India, decomposition /putrefaction commences before the
rigour mortis completely pass off from the lower extremities. Further that 18 to 36
or 48 hours after the death, gases collect in the tissues, cavities and hollow viscera
under considerable pressure with the result that the features become bloated and
distorted, the eyes are forced out of their sockets, the tongue protruded between
the teeth, and the lips become swollen and everted. These gases form blisters
under the skin containing a reddis coloured fluid, on the various parts of the body.
When these burst, the cuticle being softened peels of easily. Thus as per Modi’s
Medical Jurisprudence the aforesaid symptoms appears in a dead body between
18 to 48 hours from the time of death. In the instant case, doctor also found the
same symptoms and on that basis, he concluded that the death took place within
36 to 48 hours from the time of post mortem. Thus there is no inconsistency in the
medical evidence and the evidence of eye witnesses with regard to time of
occurrence.
15
33. It is submitted by learned counsel for the appellants that the I.O. and
P.W. 12 had stated that the electric bulb fitted on the electric pole was fused from
last one month and there was no source of light. Accordingly, the claim of P.Ws.
10, 12 and 14 that they identified Ashok Mandal and Kishore Mandal, after seeing
their faces, is not acceptable. In this connection, it is relevant to mention that in
the fardbeyan it has come that just after the occurrence the accused Ram Prasad
Mandal had put off the pole light and there was darkness on the road. In the
fardbeyan it is mentioned that there was a electric light in front of the house of
accused Ram Prasad Mandal. This fact was also supported by P.W. 12 in his
deposition at paragraph 2. The I.O. in Paragraph No. 15 had categorically stated
that an electric bulb was on the pole in front of the house of accused persons. It
has come in the evidence that the house of Ram Prasad Mandal i.e. the father of
appellants Ashok Mandal and Kishore Mandal situates in front of the house of
informant. Since the aforesaid two appellants are next door neighbour of informant,
they can easily be identified by the informant and his family members. Moreover
P.W. 14 has stated that at the time of occurrence a lantern was burning near the
door, where occurrence took place. Thus, in our view, there is sufficient source of
light for identifying appellant Kishore Mandal and Ashok Mandal, who are next
door neighbour of the informant.
34. So far as the identification of Bijay Singh by voice as claimed by the
prosecution is concerned, it has been submitted that P.W. 10 and 12 stated that
they had no family relation with the appellant Bijay Singh. The two families are not
even in visiting term. Bijay Singh is resident of different Mohalla. He never came to
the house of informant prior to the occurrence. It is further submitted that in his fard
beyan as well as at paragraph no. 27 P.W. 12 has categorically stated that he had
identified Bijay Singh by his voice. P.W. 10 though stated in her deposition that she
did not remember what she had said before the police about identifying Bijay
Singh by his voice, but the I.O. in his deposition has categorically stated that
witness Chintamani Mandalain had stated before him that she identified the
accused who covered his face with beard-mask by his voice. It is further submitted
16
that P.W. 14 had not taken the name of Bijay Singh before the police and for the
first time he has implicated him in court. Since the witnesses are not acquainted
and familiar with voice of Bijay Singh, it is risky to convict him on the basis of his
identification by voice.
35. We have carefully scrutinized the evidence of P.W. 10, 12 and 14
regarding identification of Bijay Singh. P.W. 10 in the examination in chief has
stated that at the time of occurrence one of the accused had covered his face with
beard- mask. However, she identified Bijay Singh. In the cross examination when
she was confronted with her earlier statement, she stated that she did not
remember whether she had said so before the police, or not. However, the I.O.
P.W. 19 had stated that she made statement before him that she identified Bijay
Singh by his voice. P.W. 12 in his fard beyan as well as in the deposition at
paragraph no. 27 stated that he had said before the police that he identified Bijay
Singh by his voice. Thus, it is evident that the Bijay Singh was identified by P.Ws.
10 and 14 by his voice. The Supreme Court in Kirpal Singh Vs. The State of
Uttar Pradesh, reported in AIR 1965 SC 712 held that if the accused is
intimately known to the witness from before the occurrence , it is possible for the
witnesses to identify him by his voice, but when the person recognizing is not
familiar with the person recognized then such identification is risky in a criminal
trial. In the instant case, P.Ws. 10 and 12 in their deposition have said that Bijay
Singh does not belong to their caste. He is also not related with them. The house
of Bijay Singh situates in another Mohalla Rasikpur. It is also admitted by these
witnesses that the two families are not on visiting term. P.W. 10 also specifically
stated at paragraph no 24 that prior to occurrence, Bijay Singh never came to her
house. P.W. 12 also categorically stated that he had no acquaintance with Bijay
Singh. Thus, in view of the aforesaid deposition, it is clear that P.W. 10 and 12 are
not familiar with the voice of Bijay Singh and their claim that they identified Bijay
Singh by his voice, does not inspire confidence. So far as the identification of this
appellant by P.W. 14 is concerned, it is worth mentioning that he claims that he
had said before the police that the third man who came with Ashok Mandal and
17
Kishore Mandal was Bijay Singh. However, that has been contradicted by the P.W.
19 who categorically stated that P.W. 14 had not taken the name of Bijay Singh
before him.
36. Under the said circumstance the identification of Bijay Singh by P.W.
14 for the first time in court is not reliable. We find substance in the submission of
learned counsel for the appellant Bijay Singh that his conviction only on the basis of
identification by voice cannot be sustained.
37. In view of the aforesaid discussion, we conclude that so far as the
appellants Ashok Mandal and Kishore Mandal are concerned, the prosecution has
been able to prove the charges leveled against them beyond the shadow of all
reasonable doubts and there is no error in the impugned judgment of their
conviction. However, conviction of appellant Bijay Singh only on the basis of
identification by his voice is not sustainable.
In the result:-
38. We allow Cr. Appeal (DB) No. 275 of 2004 and set aside the
conviction and sentence of Bijay Singh passed in S.C. No. 168 of 1996 by the
Sessions Judge, Dumka. We acquit him of the charges. We are informed that he is
in custody; he is directed to be set at liberty forthwith, if not wanted in any other
case.
39. We uphold the conviction and sentence of the appellants Kishore Mandal
and Ashok Mandal passed in the said S.C. No. 168 of 1996 and dismiss Cr.
Appeal (DB) No. 80 of 2004 and Cr. Appeal (DB) No. 292 of 2004.
(Narendra Nath Tiwari, J.)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 19/11/2009
Sharda/NAFR