Criminal Appeal (D.B) No.227 of 1991
With
Criminal Appeal (D.B) No.154 of 1991
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Against the judgment of conviction and order of sentence dated
8.5.1991 passed by Sessions Judge, Deoghar in Sessions Case
No.8 of 1987.
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Ram Prasad Mandal.......Appellant (in Cr. App. No.227 of 1991)
1.Mahadeo Mandal
2.Jhupar Mandal
3.Congress Mandal
4.Salik Mandal
5.Robin Mandal
6.Thetho @ Titu Mandal
@ Thetho Mandal
7. Thakur Mandal...............(Appellants (in Cr. App. No.154 of 1991)
VERSUS
State of Bihar now Jharkhand ..................................Respondent
For the Appellant: M/s. K.P.Deo and Bharat Kumar
For the State : Mrs. Anita Sinha, A.P.P
P R E S E N T
THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
THE HON'BLE MR. JUSTICE R. R. PRASAD
By Court: Since both the appeals arise out of the common judgment
it were heard together and are being disposed of by this common
judgment.
The appellant, Ram Prasad Mandal having been found guilty
for committing murder of one Baldeo Mandal was convicted under
section 302 of the Indian Penal Code whereas the other appellants
including Mahadeo Mandal and Thetho @ Titu Mandal @ Thetho
Mandal (Both died during the pendency of this appeal) were
convicted under section 302/149 of the Indian Penal Code and all
of them were sentenced to undergo rigorous imprisonment for life.
Further the appellant, Robin Mandal having been found guilty for
an offence under section 307 of the Indian Penal Code for making
an attempt on the life of Muli Mandal and Kalia Mandal was
sentenced to undergo rigorous imprisonment for 7 years. He was
further sentenced along with Ram Prasad Mandal, and Thakur
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Mandal to undergo rigorous imprisonment for two years under
section 148 of the Indian Penal Code whereas all other accused
were sentenced to undergo rigorous imprisonment for one year
under section 147 of the Indian Penal Code.
The case of the prosecution is that on 30.6.1986 at about 4
P.M. while Alosi Maldalain (P.W.5) wife of the deceased was
working inside the house, she heard some sound as if someone is
breaking the roof tiles. When she came out, she saw the
appellants, Jhupar Mandal, Congress Mandal and Salik Mandal
breaking the tiles of her roof by lathi and then raised alarm. Upon
it, all the three persons came to the house of the appellant
Mahadeo Mandal (since died). Meanwhile, her husband (deceased)
came running over there. On seeing him, the appellants, Mahadeo
Mandal, Robin Mandal and Thetho @ Titu Mandal @ Thetho Mandal
(since died) exhorted others to kill him. Thereupon, all the
appellants came near his house along with 8-10 unknown persons
and then appellant, Ram Prasad Mandal on the order of Mahadeo
Mandal shot an arrow which hit on the chest of Baldeo Mandal,
who died at the spot. In that occurrence Muli Mandal (P.W.2) and
Kaila Mandal (P.W.3)also sustained injuries caused by arrow.
On the next day at about 10.30 A.M, Chaukidar Harilal
Mandal informed to one P.C.Malviyar (P.W.7) the Officer- in-
Charge, of Karon Police Station that some persons have sustained
injuries in course of altercation in between Mahadeo Mandal and
Baldeo Mandal. The Officer-in-Charge having entered the said
information in the Station Diary (Ext.A) proceeded to the place of
occurrence where he reached at about 4 P.M. and recorded
Fardbeyan (Ext.3) of Alosi Maldalain (P.W.5) wife of the deceased
wherein she disclosed that her husband, whose parents had died in
his childhood, was brought up by Dasrath Mandal, father of the
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appellant Thetho @ Titu Mandal @ Thetho Mandal, who had given
two bighas of the land to his husband which the appellants wanted
to get it back and as such, they committed offence in the manner
stated above. On the basis of said Fardbeyan, a case was
instituted. After taking over the investigation, the Investigating
Officer recovered four arrows (Exts.I to I/3) from the place of
occurrence which were seized under seizure list (Ext.5). The
Investigating Officer having found Muli Mandal (P.W.2) and Kaila
Mandal (P.W.3) injured referred to them to Doctor for their
examination. Accordingly, both were examined by Dr. Harihar
Prasad Mandal (P.W.8) who found the following injuries on the
Kaila Mandal.
Punctured wound ½” x 1- ½ ” x 2″ directing upward in front
of left side of chest.
Dr. also found following injuries on the person of Muli
Mandal (P.W.2)
Punctured wound ½” x ½ ” x 2″ directing upward on lateral
side of right thigh.
Injuries on both the persons as per injury report (Ext.7 and
7/1) were found to be simple.
The Investigating Officer, on holding inquest on the dead
body prepared inquest report (Ext.4) and then sent the dead body
for post mortem examination which was conducted by
Dr.Kameshwar Prasad (P.W.6), who found following ante mortem
injuries.
“One lacerated penetrating wound of ¼ ”
diameter on front of chest, in middle at the base of
membrane sternum x chest cavity deep.
On opening the chest, right pleura and right
upper and middle lobes of right lung was found
punctured.”
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Dr. issued post mortem examination report (Ext.2) with an
opinion that death was caused due to shock and bleeding, as a
result of above noted injuries caused by substance like an arrow.
On completion of investigation, police submitted charge
sheet against the appellants upon which cognizance of the offence
was taken and in due course when the case was committed to the
court of sessions, charges were framed to which the appellants
pleaded not guilty and claimed to be tried.
In course of trial, the prosecution examined as many as five
witnesses. On them, Muli Mandal (P.W.2), Kaila Mandal (P.W.3),
Jhuniya Mandalain, daughter-in-law of the deceased, (P.W.4) and
P.W.5 the informant, Alosi Mandalain (wife of the deceased) are
the eye witnesses.
According to the case of the defence, they have falsely been
implicated in this case due to enmity and, in fact, occurrence never
took place in other manner it was projected by the prosecution
rather it took place in the manner it was given by accused Mahadeo
Mandal (since died) in his Fardbeyen (Ext.B) which has been
recorded on the same day when the Fardbeyan of the informant
was recorded wherein it has been stated by said Mahadeo Mandal
that when the members of the prosecution party did attack on his
house and caused injury to his daughter-in-law, he shot arrows
causing injury to the deceased and other injured.
That apart, one of the appellants, namely, Ram Prasad
Mandal had also taken plea of alibi and in order to prove such plea,
he has examined himself as D.W.3 and also produced a document
(Ext.4) to establish that he, on the day of occurrence, was at
Asansol.
The trial court having found the appellants guilty passed the
order of conviction and sentenced as aforesaid.
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Being aggrieved with the judgment of conviction and order
of sentence, the appellants have preferred this appeal.
Learned counsel appellants submits that occurrence as has
been claimed by the prosecution never occurred in the manner in
which it has been projected, rather it took place in the manner
which was projected by Mahadeo Mandal (since died) in his
Fardbeyan (Ext.B) recorded by the same Investigating Officer on
the same day when he had recorded the Fardbeyan of the
informant (P.W.5) and the version of the Mahadeo Mandal gets
support from the objective finding of the Investigating Officer
whereby he found marks of arrow on the door and over the wall of
the house of the deceased but this aspect of the matter, which was
quite significant to show the falsity of the prosecution case was
never taken into consideration in right perspective by the learned
trial judge and hence, the order of conviction and sentence is quite
bad.
However, learned counsel appearing for the State submits
that versions of the eye witnesses as many as five in number get
corroboration from the medical evidence and therefore, trial court
has rightly passed the order of conviction and sentence against
them.
On perusal of the record, we do find that P.W.1 Sito Mandal,
P.W.2 Muli Mandal, P.W.3 Kaila Mandal and P.W.4 Jhuniya
Mandalain all claimed themselves to be the eye witnesses have
testified that while the appellants, Jhupar Mandal, Congress Mandal
and Salik Mandal were breaking the tiles of the roof of the house of
the deceased, the informant Alosi Mandalain (P.W.5) raised alarm
and then the accused persons came to the house of Mahadeo
Mandal. Meanwhile, when Baldeo Mandal (deceased) came to his
house, Ram Prasad Mandal on the order of Mahadeo Mandal shot
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an arrow causing injury to Baldeo Mandal, who fell down and died.
They have further deposed that when Muli Mandal (P.W.2) and
Kaila Mandal (P.W.3) came over there, the appellant Rabin Mandal
shot arrows which hit them, as a result of which they became
injured. Similar is the version of the informant (P.W.5). But the
testimonies of all the witnesses are susceptible to doubt for the
reason that P.W.7, the Investigating Officer when came at the
place of occurrence, he did notice the marks of arrow hitting on the
wall as well as on the door of the house of the deceased, whereas
according to the prosecution witnesses, one arrow shot by the
appellant Ram Prasad Mandal hit the deceased and other two
arrows shot by him hit the injured Muli Mandal (P.W.2) and Kaila
Mandal (P.W.3) and the third one went off begging. Under this
situation, had that version been true, there would have no scope of
finding arrow marks on the door as well as on the wall of the
house of the deceased but those marks were found to be there
which certainly creates doubt over the manner of occurrence, as
projected by the prosecution which also becomes doubtful by the
disclosure made by the Choukidar before the Officer-in-Charge of
Karon Police Station disclosing therein that some persons sustained
injuries in course of altercation in between the Baldeo Mandal and
Mahadeo Mandal. The said information which had been entered
into the Station Diary has been proved as Ext.A. The doubt
further deepens when one takes notice of the statement made by
the accused Manadeo Mandal (since died) before the Investigation
Officer at the place of occurrence on the same day in his Fardbeyan
(Ext.B) wherein it has been stated that while he was in his house,
the deceased and also other accused persons came to his house
and started breaking the tiles and upon it, when his daughter-in-
law came, she was assaulted, as a result of which, she fell down
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and when he brought her inside the house, accused persons
entered into the house by breaking upon the door and started
searching him and then in order to save his life, he shot 3-4
arrows. Later on it was told to him that one arrow hit Baldeo
Mandal, as a result of which he died and Muli Mandal and Kaila
Mandl sustained injuries as they were also hit by arrow. This
statement seems to have been made simultaneously when the
Fardbeyan of the informant was recorded and, therefore, it cannot
be thrown out-rightly as an after thought story, rather in the facts
and circumstances, story of the defence appears to be more
probable. On he other hand, prosecution seems to have failed to
establish even the genesis of occurrence as according to the
prosecution case, three accused persons came to the house of the
deceased and started breaking the roof tiles. On seeing this when
informant (P.W.5) raised alarm, they came to the house of other
accused and subsequent to it occurrence took place but factum of
breaking of the tiles never seems to have been established by the
prosecution as the Investigating Officer in his objective finding has
never said about the breaking of the tiles of the house of the
deceased.
Going further in the matter, we do find that, according to
eye witnesses, when Baldeo Mandal fell down after being hit by
arrow, P.W.2 Muli Mandal and P.W.3 Kaila Mandal reached over
there and then they sustained arrow injuries when it was shot by
Robin Mandal but it is strange to note that P.W.2 Muli Mandal
though in his examination-in-chief has supported the prosecution
case but he never seems to have stated about the occurrence in
the manner in which he deposed in his statement under section
161 of the Code of Criminal Procedure where he had stated that
he never saw anyone shooting from an arrow. If this was the first
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version of P.W.3, then that also creates doubt over the testimony
of P.W.2, another eye witness as he also seems to have reached
at the place of occurrence simultaneously with P.W.3.
So far P.W.1, Sito Mandal and P.W.4 Jhuniya Mandalain
(daughter-in-law of the deceased) are concerned, they though
have claimed to have seen the accused persons shooting arrows
but their names do not find mentioned in the Fardbeyan of P.W.5,
rather P.W.5 in her Fardbeyan only speaks about the P.Ws. 2 and
3, whom she saw at the place of occurrence. Accordingly,
credibility of these two witnesses are also not above board.
Thus, prosecution does not seem to have established the
case beyond all reasonable doubt, rather, in the circumstances as
stated above, all the appellants deserve benefit of doubt.
Accordingly, the order of conviction and sentence passed by the
trial court is hereby set aside. Consequently, they are acquitted of
the charges levelled against them and are discharged from the
liability of the bail bonds.
In the result, these two appeals are allowed.
( Amareshwar Sahay, J)
( R. R. Prasad, J. )
Jharkhand High Court, Ranchi
The 17th March, 2009
NAFR/N.Dev