Jharkhand High Court
Kartik Mandal And Ors vs State Of Bihar on 28 March, 2017
Author: H. C. Mishra
Bench: H. C. Mishra, S.N.Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Against the Judgment of conviction and Order of sentence dated 6.5.1992 passed by the
learned Additional Sessions Judge, Deoghar, in Sessions Trial No. 62 of 1991]
Criminal Appeal (DB) No. 101 of 1992 (P)
With
Criminal Appeal (DB) No.194 of 1992 (P)
1. Kartik Mandal
2. Janki Mandalian @ Janki Devi
3. Badri Mandal ...... Appellants
(In Cr. Appeal No.101/92)
Pawrit Mandal ...... Appellant
(In Cr. Appeal No.194/92)
Versus
The State of Bihar (Now Jharkhand) ...... Respondent
(In both cases)
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CORAM : THE HON'BLE MR. JUSTICE H. C. MISHRA
THE HON'BLE MR.JUSTICE DR.S.N.PATHAK
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For the Appellants : Mr. Sunil Kr. Mandal, Advocate
Mr. Kaushal Kishore Mishra, Advocate
Mr. Navin Kumar Jaiswal, Advocate.
For the Respondent : Mrs. Sadhna Kumar, Advocate
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C.A.V. On 28/03/2017 Pronounced On : 11/04/2017
H.C. Mishra, J.:- Both these appeals arise out of the same Judgment and as such, they were
heard together and are being disposed of by this common Judgment.
2. Heard learned counsel for the appellants in both these appeals and the
learned counsel for the State.
3. The appellants in both these appeals are aggrieved by the Judgment of
conviction and Order of sentence dated 6.5.1992, passed by the learned Additional
Sessions Judge, Deoghar, in Sessions Trial No. 62 of 1991, whereby, all the appellants
have been found guilty and have been convicted for the offence under Sections 341 and
302 / 34 of the Indian Penal Code and the appellant, Pawrit Mandal has also been found
guilty and convicted for the offence under Section 324 of the Indian Penal Code. Upon
hearing on the point of sentence, all the appellants were sentenced to R.I for life for the
offence under Sections 302 / 34 of the Indian Penal Code and the appellant
Pawrit Mandal was also sentenced for R.I for one year for the offence under Section 324
of the Indian Penal Code. No separate sentence was passed for the offence under Section
341 of the Indian Penal Code. The sentences of the appellant Pawrit Mandal were
directed to run concurrently.
4. The prosecution case was instituted on the basis of the fardbeyan of the
informant, Rameshwar Mandal, recorded on 16.4.1990 at 12 hours in village Digbad, P.S
Karon, District Deoghar. The occurrence had taken place on 15.4.1990 at about 3 P.M in
the village, in which, an altercation had taken place between the appellants,
Pawrit Mandal and Kartik Mandal on one side, and one Sito Mandal on the other, in
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which it is alleged that Pawrit Mandal assaulted Sito Mandal by sword, causing injuries
on his left hand. Murti Mandalain, the wife of the informant, was coming after cleaning
utensils at Pipra Ahri (seasonal pond), who was apprehended by Janki Mandalain and
Badri Mandal, who are the wife and son respectively, of Pawrit Mandal. Janki Mandalain
had caught hold the hands of the wife of the informant whereas Badri Mandal had
pressed her legs and it is alleged that Pawrit Mandal slit her neck by sword, due to which
she died at the spot. The motive behind the occurrence, as it is stated in the FIR, is that
the informant had two daughters, whom he had married with two sons of the appellant
Pawrit Mandal. As the informant had no son, he had married his two daughters with two
sons of the Pawrit Mandal, so that the informant and his wife could also be looked after,
but after the marriage, due to the greedy eyes over the property, the appellants had
committed the murder of the wife of the informant and Pawrit Mandal also wanted to kill
the informant, so as to grab his entire property. It is stated in the FIR that in course of
occurrence, Janki Mandalain was also injured by sword of Pawrit Mandal.
5. On the basis of the fardbeyan to the aforesaid effect, Karon P.S Case
No.15 of 1990 corresponding to G.R. No. 345 of 1990, was instituted for the offence
under Sections 341, 326, 307, 302 / 34 of the Indian Penal Code and the investigation
was taken up. After investigation, the police submitted charge-sheet against all the
appellants.
6. After commitment of the case to the Court of Session, the charges under
Sections 341 and 302 / 34 of the Indian Penal Code were framed against all the
appellants, whereas the charges under Sections 307 and 326 of the Indian Penal Code
were framed against the appellant, Pawrit Mandal, and upon the appellants' pleading not
guilty and claiming to be tried, they were put to trial.
7. In course of trial, the prosecution has examined 13 witnesses in this case,
in which, P.W.-1 Satrughan Singh, P.W.-5, Madan Mohan Yadav and P.W.-13
Ram Dahin Singh, are the formal witnesses, who have proved the formal F.I.R., an
endorsement over the fardbeyan and the station diary entry No.229 dated 16.4.1990 of
Karon P.S., as Exhibits 1, 2 and 9 respectively.
8. P.W.-9 Rameshwar Mandal and P.W.-7 Sito Mandal are the eyewitnesses
to both the occurrences, i.e., assault made upon Sito Mandal, and the murder of the wife
of the informant, whereas P.W.-2 Harihar Mandal @ Degru Mandal, P.W.-4
Parwati Mandalain and P.W.-8 Kusumi Devi are the eyewitnesses only to the occurrence
of murder of the wife of the informant, and P.W.-6 Sukar Mandal is an eyewitness only
to the occurrence of assault on Sito Mandal.
9. P.W.-9 Rameshwar Mandal is the informant of the case and he has stated
that the occurrence had taken place at about 2.30-3.00 P.M, when there was an altercation
between the Pawrit Mandal and Sito Mandal at Shitla Mandap in the village.
Pawrit Mandal assaulted Sito Mandal by sword on his left hand whereas Kartik Mandal
assaulted Sito Mandal by lathi, injuring Sito Mandal. The wife of the informant had gone
to clean utensils at pond and while she was returning from the pond, Janki Mandalain and
Badri Mandal apprehended her and Pawrit Mandal slit her neck by sword.
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Janki Mandalain had caught hold the hands of his wife whereas Badri Mandal was
holding her legs, while Pawrit Mandal was sliting the neck of his wife. Kartik Mandal
was also standing there, armed with lathi. His wife died at the spot. When he tried to
prevent them, he was also threatened by Pawrit Mandal. The police arrived at the place of
occurrence on the next day and recorded his fardbeyan, and finding the same to be
correct, he put his thumb impression. This witness has again stated that the occurrence
had taken place due to the property of the informant. The informant has identified the
accused persons, present in the Court. He was put to cross-examination in which he has
stated that he has two daughters who are aged 5 years and 8-9 years. Harihar Mandal
wanted to get his son married with his daughter which he did not agree. He had not
married his daughters with the sons of Pawrit Mandal. He has denied the suggestion to
have stated in the fardbeyan that he had married both his daughters with two sons of
Pawrit Mandal. He has stated that he never lived to the house of Pawrit Mandal, rather he
was living in his own house. There was no panchayati in the village relating to the
marriage of his daughters with the sons of Pawrit Mandal. He has asserted that both his
daughters are still unmarried. He has also stated that at the time of occurrence, he had not
seen any injury on Kartik Mandal. Sito Mandal had fallen down upon getting lathi blow
from Kartik Mandal and prior to that, Pawrit Mandal had assaulted him by sword,
injuring him in his hand. Sito Mandal had not become unconscious, rather he went to his
house thereafter. He has denied the suggestion to have given the false evidence.
10. P.W.-7 Sito Mandal is another witness, who is the eye witness to both the
occurrences. This witness has stated that the occurrence had taken place on Sunday at
about 3 P.M. He was at the Shitla Mandap, where a panchayati was going on with regard
to the marriage of the daughters of Rameshwar Mandal with the sons of Pawrit Mandal,
as they were agnates. He has stated that Kartik Mandal assaulted him by lathi which he
caught, whereupon Pawrit Mandal assaulted him by sword, causing injury on his left
hand, near his elbow. Thereafter, Kartik Mandal again assaulted him by lathi on his head.
He has stated that Murti Mandalain (deceased), was coming from the pond after cleaning
utensils, whereupon Janki apprehended her and caught her both hands and Badri Mandal
caught her legs and Pawrit Mandal slit her neck by sword. Murti Mandalain died at the
spot. The police arrived at the place of occurrence on the next day, and his statement was
also recorded and he was sent for his treatment. The police had also seized the
bloodstained earth from the place of occurrence and had prepared the seizure list, upon
which, he had put his signature which on identification was marked as Exhibit-3. This
witness has also stated that the police recorded the fardbeyan of Rameshwar Mandal in
his presence, upon which also, he had put his signature, which was marked as Ext-2/1. He
had also identified the signature of another witness Pancham Mandal, which was marked
as Ext-2/2. This witness had identified all the accused persons, present in the Court. In his
cross examination, this witness has stated that the daughters of Rameshwar Mandal were
married with two sons of Pawrit Mandal and he is also an agnate of Pawrit Mandal. He
has stated that all the Mandal families in village Digbad are agnates. In his cross
examination, this witness has also stated that Kartik Mandal was not injured in the
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occurrence, but he has admitted that for the occurrence of the same day, Kartik Mandal
had also lodged a police case, in which, he was an accused and the case was pending. He
has stated in his cross-examination that upon getting injured, he did not go to his house
immediately, rather he remained at Shitla Mandap, from where the pond was clearly
visible, and in between, there are the houses of Rameshwar Mandal and Balbhadra. This
witness has also stated that at time of assault upon deceased, Badri Mandal had pressed
both her legs and Janki had caught hold her hands. This witness has also given the
boundary of the place of occurrence. He has denied the suggestion to have given false
evidence.
11. P.W.-2 Harihar Mandal @ Degru Mandal, P.W.-4, Parwati Mandalain and
P.W.-8 Kusumi Devi, are the eyewitnesses to the occurrence of murder only. They have
stated that near the pond, Murti Mandalain was apprehended by Janki and Badri by
holding her both hands and legs and Pawrit Mandal assaulted her by sword, sliting her
neck. Murti Mandalain died at the spot. P.W.-2 Harihar Mandal @ Degru Mandal has
also stated that at the time of occurrence, Janki Mandalain was also injured by sword.
P.W.-4 Parwati Mandalain and P.W.-8 Kusumi Devi have also stated that at the time of
assaulting the deceased, Kartik Mandal was also standing there, armed with lathi. P.W.-2
and P.W.-4 have stated in their cross-examination that the daughters of
Rameshwar Mandal were married with the sons of Pawrit Mandal. P.W.-2 has also stated
that after the said marriage, Rameshwar and his wife were living at the house of
Pawrit Mandal. However, P.W.-4 Parwati Mandalain has stated that Rameshwar Mandal
was living in his own house, whereas P.W.-8 Kusumi Devi has stated that Rameshwar is
living in the house of Sito Mandal, as his house had fallen down.
12. P.W.-6 Sukar Mandal is the eyewitness only to the occurrence of assault
upon Sito Mandal. He has stated that Kartik Mandal has assaulted Sito Mandal by lathi
on his head and Pawrit Mandal had assaulted Sito Mandal by sword, injuring him in his
left hand, near elbow. Thereafter, this witness went to his own house and he heard the
noise, whereupon he learnt that Murti Mandalain was also murdered. He came and saw
the dead body of Murti Mandalain near the pond with her neck slit, and he heard that
Pawrit Mandal had assaulted her and kartik Mandal, Badri and Janki were also present
there. This witness has also stated that Rameshwar Mandal had two daughters with
whom Pawrit Mandal forcibly married his sons, even though both of them were agnates.
This was done by Pawrit Mandal due to the landed property of Rameshwar Mandal. This
witness has also identified the accused persons in the Court. In his cross-examination,
this witness has also stated that after the marriage of the daughters, Rameshwar Mandal
and his wife were living in the house of Pawrit Mandal. He has stated that he had not
seen any injury on Kartik Mandal at the time of occurrence. This witness has also given
the boundary of the place of occurrence of murder.
13. P.W.-3 Bhanu Mandal is the witness to the seizure of bloodstained earth
from the place of occurrence. He has stated that Murti Mandalain was murdered and he
heard that Pawrit Mandal had murdered her. On the next day, the police came and seized
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the bloodstained earth from near the pond and he had also put his thumb impression on
the seizure list.
14. P.W.-10 is the Dr. Ashok Kumar Chatterjee, who had conducted the
post-mortem examination on the dead body of the deceased, Murti Mandalain on
17.4.1990at about 10.45 A.M. The body was fowl smelling and there were blebs all over the body. There were maggots around the wound at the neck. He found the following ante-mortem injuries on her person:-
One incised wound extending from right side of the neck below the mandibular angle to the left side of neck below the middle of mandible about 7&1/2" x 1&1/2"x oesophagus deep, margins were inverted, carrotide and jugular artery and vein on the right side were cut. The oesophagus was also cut.
There was one abrasion on the back of the neck left side 1" x 1/2". On opening of skull brain and maninges were pale. On opening of chest both lungs were pale and heart was empty. On opening of abdomen, liver, spleen and kidney were pale. Stomach contained 4 ounces of undigested food particles. Uterus N.A.D. External genitilia N.A.D. Time elapsing from death about 48 hours from the time of P.M. Exam. This witness has stated that the death was caused due to the shock and hemorrhage due to the above injuries, caused by sharp cutting weapon, such as sword. This witness has identified the post-mortem report to his pen and signature, which was marked as Exhibit 4.
15. P.W.-12 is Dr. Bishwanath Das, who had examined the injuries on Sito Mandal. He has stated that he had examined the injuries on Sito Mandal on 16.4.1990 and he had found the following injuries on his person:-
(1) One lacerated bleeding wound 1 ½" x ¼" x skin deep, red in colour, on the posterior side on the left fore-arm about 3" away from the left elbow.
(2) Abrasion on the right side of the fore-head.
Both the Injuries were simple in nature, caused by hard blunt substance such as blunt edge of a sword. He has identified the injury report to be in his pen and signature, which was marked as Exhibit-8. This witness was cross examined by the defence and in his cross-examination, he has stated that on the same day, he had also examined Kartik Mandal, Pawrit Mandal and Janki Devi, on whom also, he had found simple injuries, including lacerated wounds. The injury reports were not proved by the defence.
16. P.W.-11 is Prem Chand Malviya, who is the Investigating Officer of the case. This witness has stated that he was posted at Karon Police Station on 16.4.1990 when he got an information that the occurrence had taken place in village Digbad. He made the station diary entry and reached village Digbad, where he found Murti Mandalain, the wife of Rameshwar Mandal, dead. He recorded the fardbeyan of Rameshwar Mandal. He has proved the fardbeyan to be in his pen and signature, which was marked as Exhibit-5. He also prepared the inquest report of the dead body of Murti Mandalain which he has proved to be his pen and signature, and the same was marked as Exhibit-6. He has stated about the investigations made by him and he has also 6 stated about the place of occurrence. He has also stated that he found a lot of blood on the place of occurrence which he seized in presence of the witnesses and prepared the seizure list, which was marked as Exhibit-3/1. He had also prepared the injury memo of the injured, Sito Mandal and the same was marked as Exhibit-7. He has stated that he sent the dead body of the deceased for post-mortem examination. He has also proved the F.I.R. which was earlier marked as Exhibit-1. He has stated that after completing the investigation, he submitted charge-sheet. In his cross-examination, he has also stated that at the first place of occurrence, there was an altercation between Kartik Mandal and Sito Mandal and Kartik had also lodged a case, being Karon P.S. Case No. 16 of 1990, in which also, he made investigation and submitted charge-sheet. He has stated that Parwati Mandalain had not made any statement before him that Kartik Mandal was also present when Pawrit Mandal was slitting the neck of the deceased.
17. The defence has also examined three witnesses in the case. D.W.-1 Arjun Mandal and DW-2 Purnanand Thakur are the deed writers and they have proved the Bhugat Bandha deeds (deeds of usufructuory mortgage), executed by the informant Rameshwar Mandal, which were marked as Exhibits-A Srs & B Srs. D.W.-3 Ramdeo Pd. Rai is a formal witness, examined by the defence, who has proved the fardbeyan and the FIR of Karon PS Case No. 16 of 1990, lodged by Kartik Mandal, against Sito Mandal, which were marked Exhibits C and C/1.
18. Learned counsel for the appellants has submitted that the appellants have been falsely implicated in this case and the prosecution has not been able to prove the charges against the appellants beyond all reasonable doubts. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. It is submitted by the learned counsel that there are two places of occurrence, and except P.W.-9 Rameshwar Mandal and P.W.-7 Sito Mandal, the witnesses are either the eyewitnesses to the occurrence of murder, or the eyewitness to the occurrence of assault on Sito Mandal. It is submitted that though the informant and the witnesses have supported the prosecution case, but so far as the occurrence of murder of the wife of the informant is concerned, there is a motive assigned in the FIR by the informant, i.e., he had solemnized the marriages of both his daughters with the sons of Pawrit Mandal, and according to the prosecution case, the murder was committed due to the greedy eyes over the landed property of the informant. It is submitted by the learned counsel that this motive has been completely changed by the informant in his evidence and in his cross-examination, the informant has completely denied the factum of marriage of his daughters with the sons of the informant. The fact, however, remains that the other witnesses have stated that the daughters of the informant Rameshwar Mandal were married with the sons of the Pawrit Mandal, even though they were agnates, and even on the date of occurrence also, the panchayati was being done for the same reason, as has been stated by P.W.7, Sito Mandal, the injured in the case. The witnesses have also stated that after the marriage, the informant and his wife were living in the house of Pawrit Mandal, though this fact was completely denied by P.W.9., the informant himself. Learned counsel, accordingly, submitted that since the very motive as assigned in the 7 FIR for committing the offence, has been completely denied by the informant himself in his evidence, the entire occurrence becomes absolutely doubtful. It is also submitted by the learned counsel for the appellants that for the occurrence of assault upon Sito Mandal, there is a case and counter case and the defence has also proved the fardbeyan and the FIR of the counter case, but this fact, has been concealed by the prosecution.
19. Learned counsel further submitted that the defence has been able to prove that the appellants Pawrit Mandal, Kartik Mandal and Janki Mandalain were also injured in the occurrence, but their injuries have been concealed by the prosecution, except the injury upon Janki Mandalain. Learned counsel, however, submitted that due to these discrepancies, the entire prosecution case becomes very doubtful and in the facts of this case, the appellants are entitled at least to the benefits of doubt.
20. Learned counsel for the State, on the other hand, has submitted that there is no illegality in the impugned Judgment, inasmuch as, P.W.-9 Rameshwar Mandal and P.W.-7 Sito Mandal are the eyewitnesses to both the occurrences, i.e., the occurrence of assault on Sito Mandal and the occurrence of murder of the wife of the informant and the other witnesses, P.W.-2 Harihar Mandal, P.W.-4 Parwati Mandalain and P.W.-8 Kusumi Devi, are also the eyewitnesses to the occurrence of murder and they have fully supported the prosecution case. All the witnesses are consistent, in saying that the accused Janki Mandalain and Badri Mandal caught hold the hands and legs respectively, of the deceased and Pawrit Mandal slit the neck of the deceased by sword, causing the death of the deceased at the spot, and Kartik Mandal was also standing there armed with lathi. The ocular evidence of the witnesses is fully supported the medical evidence of P.W.-10 Dr. Ashok Kr. Chatterjee and the post-mortem report Exhibit-4, proved by him. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge of murder of Murti Mandalain, against all the appellants beyond all doubts.
21. It is also submitted by learned counsel for the State, that the allegation of assault on Sito Mandal, is supported by P.W.-9 Rameshwar Mandal, P.W.-7 Sito Mandal, the injured himself, and P.W.-6 Sukar Mandal, as eyewitnesses and is also corroborated by the medical evidence of P.W.-12 Dr. Bishwanath Das, and the injury report proved by him as Exhibit-8, and as such, the prosecution has been able to prove this charge also against the appellant Pawrit Mandal. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Court below.
22. Having heard the learned counsels for both sides and upon going through the record, we find that the eyewitnesses have fully supported the prosecution case of assault on Sito Mandal as also of committing murder of Murti Mandalain, the deceased. On the manner of offence, all the eyewitnesses, detailed above, are fully consistent and there is nothing in their cross-examinations to discredit their testimonies. So far as the plea that the witnesses have concealed the injuries upon the appellants Pawrit Mandal and Kartik Mandal, we do not find much substance in this submission, as P.W.-12 Dr. Bishwanath Das has stated that there were only simple injuries on them. Even their 8 injury reports have not been proved by the defence. This apart, the fardbeyan and the FIR of Karon PS Case No. 16 of 1990, lodged by the appellant Kartik Mandal, against the appellant Sito Mandal, proved as Exhibits C and C/1, clearly show that the allegation therein had nothing to do with the occurrence of murder of the wife of the informant. Only Sito Mandal has been made accused in the case, with the simple allegation of assault upon Kartik Mandal only. There is nothing therein to show that the appellant Pawrit Mandal was also injured in the occurrence, and it speaks nothing about the occurrence in which the wife of the informant was murdered. Indeed the informant, or any other witness has not been made accused in that case, and in the present case, the prosecution has disclosed the injury on the appellant Janki Mandalain.
23. So far as the motive of the offence is concerned, it is a fact that the informant had assigned the motive for committing the offence in the FIR, i.e., the marriage of both his daughters with two sons of Pawrit Mandal and it is stated that the offence had been committed due to the greedy eyes over his property, and the informant himself has denied this motive in his evidence as P.W.-9. Whatever may be the reason for denial of the motive, but the fact remains that so far as the allegation of assault on Sito Mandal and the allegation of murder of the wife of the informant are concerned, all the eyewitnesses, including the informant and the injured, are consistent on the point of manner of occurrence and there is nothing in their cross-examinations to discredit their testimonies about the manner of the occurrence. The ocular evidences of these witnesses are fully corroborated by medical evidence of P.W.-10 Dr. Ashok Kumar Chatterjee and P.W.-12 Dr. Bishwanath Das, who have proved the post-mortem report (Exhibit-4) and the injury report of Sito Mandal (Ext- 8). The witnesses were natural and most probable witnesses and their presence at the place of occurrence, being agnates and neighbours, cannot be doubted. In view of these consistent evidences, on the manner of occurrence, we are of the considered view, that the motive behind the offence, looses its significance, and it is not at all material whether the prosecution was able to prove the motive behind the offence or not. The law in this regard is well settled by the Hon'ble Supreme Court of India, in Bipin Kumar Mondal Vs. State of W.B., reported in (2010) 12 SCC 91, as follows:-
"21. The issue of motive becomes totally irrelevant when there is direct evidence of a trustworthy witness regarding the commission of the crime. In such a case, particularly when a son and other closely related persons depose against the appellant, the proof of motive by direct evidence loses its relevance. In the in- stant case, the ocular evidence is supported by the medical evidence. -------- .
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24. It is settled legal proposition that even if the absence of motive as al- leged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trust- worthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is 9 not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evid- ence is worthy of reliance."
24. In view of the aforesaid well settled principle of law, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 6.5.1992, passed by the learned Additional Sessions Judge, Deoghar, in Sessions Trial No. 62 of 1991, convicting and sentencing the appellants as aforesaid.
25. We do not find any merit in both these appeals and the same are accordingly, dismissed. The appellants are on bail and their bail bonds, are hereby, canceled. The appellants are directed to surrender in the Court below forthwith, for serving out their sentences.
26. The Trial Court below is also directed to forthwith issue process compelling the surrender / production of the appellants for serving out their respective sentences. Let the LCR be sent back forthwith to the Court concerned, along-with the copy of this Judgment.
(H. C. Mishra, J.) Dr. S.N. Pathak, J. :-
(Dr. S.N. Pathak, J.) Jharkhand High Court, Ranchi Dated : 11/04/2017 N.A.F.R /BS/-