Patna High Court
Narayan Mandal & Ors vs State Of Bihar on 27 September, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.428 of 2005
[Against the judgment of conviction dated 12.5.2005
and sentence dated 18.5.2005 passed by Sri Manoj
Kumar Verma, learned Additional Sessions Judge, F. T.
C. -I, Madhubani in Sessions Trial No. 114 of 1999/
292 of 2002]
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1. Narayan Mandal son of Late Niras Mandal
2. Suresh Mandal son of Narayan Mandal
Both are residents of village Satlakha, P.S. Rahika, District- Madhubani.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Ms. Nitu Sinha, Amicus Curiae.
For the Respondent/s : Mr. Ashwini Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 27-09-2012
This appeal has been filed by the appellants Narayan
Mandal and his son Suresh Mandal against the judgment of
conviction dated 12.5.2005 and sentence dated 18.5.2005 passed
by the learned Additional Sessions Judge, F. T. C. -I, Madhubani
in Sessions Trial No. 114 of 1999/ 292 of 2002 by which both of
them have been sentenced to rigorous imprisonment for life
under Section 302/34 IPC.
2. According to the Fard Beyan (Ext. 2) of the
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informant Rampuri Devi (P.W. 7) is that on 11.6.1998 at 7 p.m.
her husband Jagdish Mandal (deceased) returned to his house
from duty and asked whose child has made stool. His younger
child Pankaj Kumar Mandal informed that the son of Suresh
Mandal has made stool there. The deceased uttered that the place
should be cleaned, in the meantime Suresh Mandal came out
from his house and made altercation. Thereafter, Suresh Mandal
took out Chhura from his waist and assaulted her husband
Jagdish Mandal (deceased) who fell down in severe condition.
The occurrence was facilitated by Narayan Mandal and his son
Suresh Mandal. On raising alarm by the informant, her Debar
Hiralal Mandal (P.W. 3), Dular Mandal (P.W. 4), her daughter
Parmila Devi (P.W. 5), Urmila Devi (P.W. 1), Dhanraj Mandal
(P.W. 2). Rijhan Mandal (P.W. 6) and others came there and
witnessed the occurrence. Her husband was taken to Rahika
hospital for treatment where he succumbed to his injuries.
3. Fard beyan was recorded by A S I, P Rai (P.W. 10)
on 12.6.1998 at 12.30 P.M. at Primary Health Centre, Rahika.
On the basis of fard beyan Town (Rahika) P. S. Case No. 169/98
dated 12.6.1998 was instituted against both the appellants for the
offence punishable under Section 302/34 IPC. After investigation
charge-sheet was submitted, cognizance was taken; the case was
committed to the Court of Sessions. The charge was framed
Patna High Court CR. APP. (DB) No. 428 of 2005 dt. 27-09-2012
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under Section 302/34 IPC to which they denied and claimed to
be tried. After trial both of them have been convicted and
sentenced as aforesaid.
4. This appeal has been registered on the basis of an
application filed by the appellants before the Jail Superintendent,
Madhubani. No advocate has been engaged by both of them. The
amicus curiae has assisted the Court in hearing of this appeal.
5. The defence of the appellants is that they have
been falsely implicated in this case.
6. This Court is required to reappraise the
prosecution evidence and to consider as to whether the
prosecution has been able to substantiate its charge beyond
shadow of all reasonable doubts.
7. The prosecution has examined altogether 11
witnesses; P. W. 1 Urmila Devi, daughter of the informant, P. W.
2 Danraj Mandal, P. W. 3 Hiralal Mandal, P. W. 4 Dular Mandal,
P. W. 5 Pramila Devi, another daughter of the informant, P. W. 6
Rijhan Mandal, P. W. 7 Ram Pari Devi, the informant of this
case, P. W. 8 Mahadeo Panjiyar, P. W. 9 Ram Lochan Mandal,
P. W. 10 Pitambar Rai, the Investigating Officer and P. W. 11,
the doctor Raishul Azam who has conducted the autopsy on the
deceased. No defence witness has been examined in this case.
P. W. 8 and P. W. 9 are only the formal witnesses, who have
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proved the signature of the Officer-in-Charge of the Town Police
Station Madhubani on formal FIR as Ext. 1. P. W. 9 is a seizure-
list witness.
8. P. W. 7 is the informant and the wife of the
deceased. She has stated that on the date of occurrence her
husband returned to his house from SDO Office where he was
working as a peon. Her husband asked as to why latrine made on
the way to the courtyard was not removed. Eldest grandson of
Narayan Mandal had made stool there. Narayan Mandal
instigated his son Suresh Mandal to assault the deceased. Suresh
Mandal gave a chhura blow to her husband Jagdish Mandal who
fell down after receiving injury. He was taken to Rahika hospital
where he died during treatment. Her statement was recorded by
the office-in-charge in the hospital. She has identified both the
appellants in the Court. In her cross-examination, she has stated
that Narayan Mandal is the elder brother of her husband and
Suresh Mandal is his son. Both of them live in the same
courtyard. No altercation was made between Narayan and her
husband. At the time of occurrence 10 persons were in the
courtyard. She has further stated that the appellants have one and
a half bighas of land. The partition had been made between the
accused and the deceased. The courtyard and the house were also
partitioned. Northern side of courtyard was allotted to Suresh,
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western side was allotted to the deceased and western side was
allotted to Hira and eastern side was allotted to Dular Mandal.
Stool was made in the share of her land. She has further stated
that she has made statement before the Officer-in-Charge that her
husband returned from his duty at 6 pm. and put bicycle on
Darwaja. There was altercation. Suresh Mandal assaulted the
deceased with Chhura. The informant and her daughters raised
alarm. In the meantime, witnesses came there. She has further
stated that the Investigating officer seized the blood stained soil.
It is not the fact that the appellants have been falsely implicated
in this case.
9. P. W. 1 is the daughter of the deceased. She has
supported the prosecution case stating that her father returned to
his house at 6 p.m. and asked as to who had made stool there.
Narayan (the appellant) came there and asked the deceased as to
why he was making nuisance. Thereafter, Suresh came there.
Narayan asked Suresh to assault with Chhura. Thereafter, Suresh
assaulted the deceased with Chhura who fell down. He was taken
to the hospital and during treatment her father succumbed to his
injuries. In her cross-examination, she has admitted that accused
Narayan is her uncle and Suresh is her cousin brother. The
houses of both the parties are in the same courtyard. It appears
that her evidence is quite natural and convincing.
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10. P. W. 2 has also supported the prosecution case as
P. W. 1. He has denied the suggestion of the defence that Suresh
Mandal was suffering from mental problem for three years prior
to the occurrence. He has made statement before the Court that
Suresh was neither suffering from mental illness prior to the
occurrence nor he is suffering at present. P. W. 3 has also
supported the prosecution case as P. W. 2. P. W. 4 has also
supported the prosecution case as P. W. 3. P. W. 5 Pramila Devi
is the daughter of the deceased. She has supported the
prosecution case as P. W. 1. P. W. 6 has also supported the
prosecution case as P. W. 4.
11. P.W. 11 is the doctor who had performed the
autopsy on the dead body of the deceased and has found the
following ante-mortem injury on his person;
(i) One bruise on left lower chest laternal aspect of
manbarium sterni 1" x ¼".
(ii) One stitched wound on right lower chest 2" below
right nipple 3" in length.
On desection, the Doctor found-one penetrating
wound on right lower chest 2" below nipple, penetrating right
lung and liver.
12. P. W. 10 Pitambar Roy is the Investigating
Officer of this case who has also found blood in the courtyard
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during investigation. He has also stated that he had collected the
blood stained soil but he did not send it for forensic examination.
13. After hearing learned counsel for both the
parties, perusing the record, and after considering the evidence
adduced on behalf of the prosecution, it appears that prosecution
has been able to substantiate its charge against the appellants, but
on perusal of charge it appears that both the appellants have been
asked as to whether they have committed murder of Jagdish
Mandal, the husband of the informant on or about 30 th June
1998, whereas, the constant case of the prosecution is that the
occurrence took place on 11.6.1998 at 6 PM. The second demerit
of the prosecution case is that both the appellants have been
examined under Section 313 Cr.P.C. It has been asked by the
prosecution as to whether they have heard the statement of the
witnesses. Both of them have accepted that they have heard the
statement of prosecution witnesses. The second question has
been asked that there is evidence against both of them that they
have committed the murder of Jagdish Mandal, the husband of
the informant on 30.6.1998 and the reply has been made in
negative. Under Section 313 Cr.P.C. the accused have been
given right to explain any circumstance appearing in the
evidence against him and after the witnesses for the prosecution
have been examined and before he is called on for his defence
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question him generally on the case. It has been held in several
cases by the Hon'ble Supreme Court that the circumstances
which were not put to the appellants in their explanation under
Section 313 of the Code of Criminal Procedure have to be
completely ignored from consideration. In this connection, a
reference may be made to a decision of Hon'ble Supreme Court
in the case of Sharad Birdhichand Sarda v. State of
Maharashtra, reported in AIR 1984 SC 1622. It is better to
quote paragraphs 142 and 144 of the aforesaid judgment;
"142. Apart from the aforesaid
comments there is one vital defect in some of
the circumstances mentioned above and relied
upon by the High Court, viz., circumstances
Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As
these circumstances were not put to the
appellant in his statement under Section 313 of
the Criminal Procedure Code they must be
completely excluded from consideration
because the appellant did not have any chance
to explain them. This has been consistently held
by this Court as far back as 1953 where in the
case of Hate Singh Bhagat Singh v. State of
Madhya Bharat AIR 1953 SC 468 this Court
held that any circumstance in respect of which
an accused was not examined under Section
342 of the Criminal Procedure Code cannot be
used against him. Ever since this decision, there
is a catena of authorities of this Court uniformly
taking the view that unless the circumstance
appearing against an accused is put to him in
his examination under Section 342 or Section
313 of the Criminal Procedure Code, the same
cannot be used against him. In Shamu Balu
Chaugule v. State of Maharashtra, (1976) 1
SCC 438: (AIR 1976 SC 557) this Court held
thus :
"The fact that the appellant was said to be
absconding, not having been put to him under
Patna High Court CR. APP. (DB) No. 428 of 2005 dt. 27-09-2012
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Section 342, Criminal Procedure Code, could
not be used against him."
144. It is not necessary for us to
multiply authorities on this point as this
question now stands concluded by several
decisions of this Court. In this view of the
matter, the circumstances which were not put to
the appellant in his examination under Section
313 of the Criminal Procedure Code have to be
completely excluded from consideration."
14. In this view of the matter, it can be concluded that
charge is not according to the prosecution case nor examination
under Section 313 Cr.P.C. of the appellants has been made
according to the evidence, as such the evidence not explained to
the appellants cannot be used and relied upon against them. In that
view of the matter, it can be held that the prosecution has not been
able to substantiate its case in accordance with law. The
appellants are entitled to get the benefit of doubt.
15. Considering the facts and circumstances stated
above, in our opinion the impugned judgment of conviction and
order of sentence is fit to be set aside and the appellants are
entitled to get the benefit of doubt. Accordingly, the impugned
judgment of conviction and order of sentence is set aside. The
appellants are acquitted by giving them the benefit of doubt on
technical ground. The appellants have already remained in
custody since 12.6.1998. Both the appellants are directed to be
released, if not wanted in any other case.
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16. In the result, this appeal is allowed.
17. Let a copy of the first and last page of the
judgment be handed over to the appointed Amicus Curiae Ms.
Nitu Sinha, Advocate who has assisted the Court satisfactorily
and she will get the prescribed fees from the High Court Legal
Services Committee, Patna.
(Shyam Kishore Sharma, J.)
Patna High Court, Patna
Dated 27th September, 2012
A.F.R./Kanchan (Amaresh Kumar Lal, J.)