Patna High Court
Indeshwari Mandal vs The State Of Bihar on 6 July, 2023
Author: A. M. Badar
Bench: A. M. Badar, Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.845 of 2022
Arising Out of PS. Case No.-7 Year-2009 Thana- RUPAULI District- Purnia
======================================================
Indeshwari Mandal, S/o Late Puran Mandal, Resident of village- Parwatta
Tola, P.S.- Rupauli (Akbarpur), District- Purnea
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Pankaj Kumar Sinha, Advocate
Mr. Rajiv Kumar Singh, Advocate
Mr. Diwakar Sinha, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 06-07-2023
The present appeal has been preferred challenging
the impugned judgment of conviction dated 27.07.2012 and
order of sentence dated 28.07.2012 passed by Sri Shailendra
Kumar, Adhoc Additional Sessions Judge No.2, Purnea in
Sessions Trial No.315 of 2010/Trial No.288 of 2010, wherein
the appellant has been convicted for the offence punishable
under Section 302 of the Indian Penal Code (in short 'IPC') and
sentenced to undergo rigorous imprisonment for life and to pay
a fine of Rs.10,000/- and in default, to undergo further rigorous
imprisonment for one year.
2. Factual matrix of prosecution case, as it springs
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from written information of the informant (P.W.-2), namely,
Anandi Sharma, who is a local Choukidar No.5/8, that he
received an information on 17.01.2009 at about 12:00 in noon
that a dead body of unknown lady is lying in a bamboo-clump
of one Kokan Singh, located about 300 yards towards north-east
direction of village-Parwatta Bahiya. On said information, he
visited the place of occurrence and inquired about dead body
from villagers present thereof, where he came to know that dead
body is of one Chhewani Devi, wife of Indeshwari Mandal, son
of Late Puran Mandal, village-Parwatta Tola. He further came to
know that today i.e. 17.01.2009 at about 10:00 a.m., deceased
along with her husband (appellant/convict) went together to cut
bamboo purchased from Kokan Singh, having 'Dabiya' with
appellant and soon thereafter, villagers found the dead body of
deceased, where her throat appears to cut by using sharp-edged
weapons. The husband of deceased, namely, Indeshwari Mandal
(appellant/convict) was on run after occurrence. Informant came
to know on the basis of information gathered from co-villagers
and children of deceased that deceased Chhewani Devi aged
about 40 years, wife of Indeshwari Mandal (appellant), son of
Late Puran Mandal, resident of village-Parwatta Tola, P.S.-
Rupauli (Akbarpur), District-Purnea, was persuaded to
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accompany appellant/convict for Parwatta Bahiyar, upto
bamboo clumps of Kokan Singh, where by using sharp-edged
weapon, she was murdered by slitting her throat. Information of
this occurrence was given to parents of deceased by villagers
but, as no one was available there and the childrens of deceased
were also minor, where adult members of family were also
absent at that time, he lodged present case, as being informant.
3. On the basis of aforesaid written information,
Rupauli P.S. Case No.7 of 2009 dated 17.01.2009, was
registered, where after investigation, police submitted charge-
sheet against sole accused/appellant, namely, Indeshwari
Mandal vide Charge-sheet No.28 of 2009 dated 31.12.2009,
under Section 302 of the IPC.
4. After considering the materials available on record
as collected during the course of investigation, learned
Jurisdictional Magistrate took cognizance under section 302 of
the IPC against the appellant/convict and committed the case to
the court of sessions for trial, which has been registered as
Sessions Trial No.315 of 2010.
5. The learned Trial Court after considering the
materials available on record, framed charge under section 302
of IPC, against appellant/convict vide order dated 22.03.2010,
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which was duly explained to the appellant but, he pleaded "not
guilty" and claimed for trial. Accordingly, the trial of present
case was commenced, where after conclusion of trial, the
appellant was convicted for the offence under Section 302 of the
IPC and upon conviction, he was ordered for a sentence of
rigorous imprisonment for life along with fine of Rs.10,000/-,
against which, present appeal is being preferred.
6. Hence, the present appeal.
7. To substantiate its case, the prosecution altogether
examined eight witnesses in support of its case, which are: Md.
Jalil (P.W.-1), Anandi Sharma (P.W.-2), who is the informant of
this case, Vikash Kumar (P.W.-3), who is the minor son of the
deceased, Soni Kumari (P.W.-4), who is minor daughter of
deceased, Ashiya Devi @ Jaliya Devi (P.W.-5), Fucho Ram
(P.W.-6), Dr. N.K. Jha (P.W.-7), who conducted postmortem
upon deceased, Lalan Prasad Singh (P.W.-8), who is the
investigating officer of this case.
8. The following documents were exhibited by
prosecution during the course of trial, which are as under:-
Sl. No. Exhibit Nos. Name of documents
1. Exhibit No.1 Signature of informant on
formal FIR.
2. Exhibit No.2 Postmortem examination
report.
3. Exhibit No.3 Fardbeyan.
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4. Exhibit No.4 Inquest report.
There is no material exhibits on behalf of the
prosecution during the trial.
9. After closing the prosecution evidence, the
appellant/convict was examined under Section 313 of the Code
of Criminal Procedure (for short 'CrPC') by explaining him all
incriminating evidences available against him, where he shows
his complete innocence and false implication.
10. No witness or documents was examined in defence
of appellant/convict.
ARGUMENT ADVANCED BY LEARNED COUNSEL APPEARING
ON BEHALF OF THE APPELLANT/CONVICT:
11. It is submitted by learned counsel appearing on
behalf of the appellant/convict that informant (P.W.-2) is not the
eye-witness of this occurrence. It is submitted that not only
informant but none of the prosecution witnesses are eye-witness
and, as such, the case of prosecution exclusively rests upon
circumstantial evidence. It is submitted that P.W.-5 and P.W.-6
both during the trial have declared hostile. It is argued that from
their cross-examination by State, nothing appears from
deposition of P.W.-5, namely, Ashiya Devi @ Jaliya Devi,
which may use as a corroborative piece of evidence suggesting
involvement of appellant/convict with crime in question. It is
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submitted that merely on the basis of cross-examination of
P.W.-6, who otherwise declared hostile, appellant was convicted
with present case by ignoring his substantial deposition as he
deposed in his examination-in-chief, that he knows nothing
about present occurrence. It is submitted that P.W.-7, who is the
doctor, only proved homicidal death having no role to
established the guilt of appellant. It is also submitted that
weapon of murder as alleged to used by appellant to commit
murder was also not recovered from the place of occurrence and
merely on the basis that he found running away from the place
of occurrence (which is an open place), it cannot be said that
non-else than appellant committed crime in question. It is also
pointed out that the contradictions as noticed by Trial Court can
be used maximum for the purpose to examine the credibility of
the witness and same cannot occupy the space of substantial oral
deposition/evidence. It is also pointed out that even the
contradictions noted is not in terms of law and same is mere
reproduction of statement of witnesses as made during the
course of investigation under Section 161 of the Criminal
Procedure Code (in short 'Cr.P.C.'). In support of his
submissions, learned counsel relied upon the legal report of
Tahsildar Singh and Anr. v. State of Uttar Pradesh [AIR
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1959 SC 1012]. While concluding argument, it is submitted that
the circumstances of this case is not convincing on its face to
suggest that non-else than appellant committed the crime in
question. It is submitted that chain of circumstances is
incomplete on its face and on this score only, the present
conviction of appellant is liable to be set aside. In support of his
submission, learned counsel relied upon the judgment of
Hon'ble Apex Court in the matter of Sharad Birdhi Chand
Sarda v. State of Maharashtra [(1984) 4 SCC 116]. It is
submitted by learned counsel that circumstances to be of 'must
or should' and not 'may be' and in support of same, he relied
upon the judgment of Hon'ble Apex Court in the matter of
Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra
[(1973) 2 SCC 793].
ARGUMENT ON BEHALF OF THE STATE:
12. It is submitted by learned counsel appearing on
behalf of the State that to complete the guilt, a single
circumstance may be sufficient, if it is so trustworthy and
convincing to suggest that non-else than the appellant
committed crime in question, as of present case. It is submitted
that P.W.-6 during his cross-examination by State deposed in
Para-4 that he stated before darogaji (Police) that he saw
appellant running away from bamboo-clump of Kokan Singh
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having 'dabiya' in his hand and his clothes were also found
stained with blood. It is submitted that P.W.-6 also informed
about the occurrence to Kokan Singh, who is owner of bamboo-
clump, where occurrence took place and he also saw the dead
body having slitted throat. It is pointed out that this clear cut
deposition of P.W.-6 regarding incriminating circumstances can
not be limited with contradiction purpose only, rather it gets
strength by corroborating with deposition of P.W.-8, who is the
investigating officer of this case, who also deposed that similar
statement was made before him during the course of
investigation by P.W.-6. It is submitted by learned APP for the
State that the injury, which proved fatal as caused by sharp-
edged cut weapon like 'dabiya' is appearing in corroboration
with finding of P.W.-7, who is the doctor and conducted
postmortem upon the deceased. While concluding argument,
learned APP submitted that the circumstances of present case is
sufficient to prove the guilt of appellant qua crime in question
beyond any reasonable doubt as there was no possibility of any
other person meeting or approaching the deceased at the place
of incident or before the commission of crime in the intervening
period. In support of his submission, learned APP relied upon
the legal report as reported through State of Goa vs. Sanjay
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Thakur [(2007) 3 SCC 2007].
CONCLUSION
13. We have heard the arguments as advanced by
learned counsel appearing for the parties and also perused the
evidences available on record along with Trial Court's records
and proceeding.
14. It appears from the deposition of witnesses that
none of the prosecution witness of this case is the eye-witness of
the occurrence and as such present case exclusively rest upon
circumstantial evidence.
15. P.W.-1, Md. Jalil is appearing formal witness of
this case, who identified the handwriting of Vivekanand Singh,
who is the scriber of FIR, having his signature, which on his
identification, exhibited before the learned trial court as Exhibit
No.1.
16. P.W.-2 is Anandi Sharma, who is Choukidar
No.5/8, and informant of the present case, who identified his
signature upon written information, which was exhibited as
Exhibit No.-3. He arrived on the place of occurrence on
information of a dead body and not appearing the eye-witness of
the occurrence. In Para-6 of his cross-examination, it was
deposed by him that he came to know from some unknown
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villagers that appellant committed murder of his wife. It was
deposed by him that he is not the eye-witness of the occurrence
and being a local choukidar, he know the appellant/convict.
17. P.W.-3 is Vikash Kumar, the minor son of the
deceased aged about 5 years, who is also not the eye-witness of
the occurrence. He deposed that he saw the dead body of her
mother, where her throat was found slitted. On cross-
examination, he deposed that he does not know the name of
place from where dead body of his mother was recovered. He
specifically deposed in Para-7 of his cross-examination that his
statement was not recorded by the police during the course of
investigation.
18. P.W.-4 is Soni Kumari, who is the minor daughter
of deceased aged about 4 years and deposed that her mother is
alive and she usually comes in her dream. It appears from her
deposition that, P.W.-4 was not able to understand the nature of
questions qua crime in issue and as such not helping prosecution
to established guilt of appellant/convict.
19. P.W.-5 is Ashiya Devi @ Jaliya Devi, who declared
hostile during trial and nothing substantial surfaced in her cross-
examination, which may used as a corroborative piece of
evidence qua involvement of appellant in crime in question.
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20. P.W.-6 is Fucho Ram, who also declared hostile
during the course of trial where he deposed in his examination-
in-chief that he knows nothing about the occurrence but, on
cross-examination by State he deposed in Para-3 that his
statement was recorded by police and he deposed before police
that he saw appellant running away from bamboo-clump of
Kokan Singh having 'dabiya' in his hand, where his cloths were
also found stained with blood. It was also deposed by him that
the said occurrence was reported to him by owner of the
bamboo-clump, namely, Kokan Singh, whereas in his cross-
examination, he specifically deposed in Para-10 that he is not
the eye-witness of the occurrence and he could not explain the
boundry of bamboo-clump of Kokan Singh. He deposed that he
did not made any statement before police that he saw dead body
with slitted throat and also that on information, several villagers
came to see dead body.
21. P.W.-7, is the doctor, who conducted the
postmortem upon the deceased and deposed that while he was
posted on 18.01.2009 at Sadar Hospital, Purnea as a Medical
Officer, on that very day, conducted postmortem upon the dead
body of Chhewani Devi, wife of Indeshwari Mandal
(appellant/convict) aged about 40 years, resident of village-
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Parwatta Tola, P.S.-Rupauli, District-Purnea and found
following antemortem injuries:-
"(A) On External Examination:-
(i) One sharp cut injury over middle and left side of
neck measuring 5" x 4" x 3" cutting through the
oesophagius, trachea, muscles and vessels. Blood
clots over the wound and around the wound.
(ii) One lacerated wound over chin, measuring 1" x
1/2" x 1/8".
(iii) One lacerated wound over left knee joint
measuring 1" x 1/4" x 1/8".
(iv) One lacerated wound over left forearm
measuring 1/2" x 1/4" x 1/8".
(B) On Dissection:-
(i) Head - Brain Pale.
(ii) Thorax - Lung pale, Heart empty of blood.
(iii) Abdomen - Liver, spleen, kidney-pale.
(iv) Gut - Faceal matter and gas
(v) Stomach - Digested food material, Uterous-
non-trignante smell.
Bladder- Residual urine present."
Time elapsed since death was 24 hours where cause
of death was opined as due to "hemorrhage and shock" as
mentioned above. He identified his signature and stated that the
postmortem report of the deceased was prepared by him and on
his identification same was exhibited before the learned trial
court as Exhibit No.-2.
On cross-examination, he deposed that it is not
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mentioned in postmortem that whether injury inflicted upon
deceased was caused due to repeated blow or single blow. It is
also deposed by him that injury as found upon deceased may be
caused either of repeated or single blow.
22. P.W.-8 is Investigating Officer of this case, who
identified the signature of informant (P.W.-2) on written
information, which has been exhibited as Exhibit No.-3. He
also identified the inquest report of deceased as prepared by
S.H.O. Surendra Pratap Singh, which on his identification
before the trial court exhibited as Exhibit No.-4. He explained
the place of occurrence as bamboo-clump of Konkan Singh and
sent the dead body for postmortem to Sadar Hospital, Purnea. It
is also deposed by him to record the statement of witnesses
during the course of investigation and submitted charge-sheet
against appellant/convict finding case true against him. It is
deposed by him in his cross-examination that he did not read the
contents of fardbeyan/written information and statement of
owner of place of occurrence, namely, Konkan Singh was also
not recorded during the course of investigation.
23. It would be appropriate to reproduce the relevant
Para-152, 153 and 154 of legal report of Sharad Birdhi Chand
Sarda case (supra) for better understanding of legal position on
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the point of circumstantial evidence and the same are as
follows:-
"152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh [(1952)
2 SCC 71]. This case has been uniformly followed and
applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC
198] and Ramgopal v. State of Maharashtra [(1972) 4
SCC 625]. It may be useful to extract what Mahajan, J.
has laid down in Hanumant case [(1952) 2 SCC 71]:
"It is well to remember that in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in
the first instance be fully established, and
all the facts so established should be
consistent only with the hypothesis of the
guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but the
one proposed to be proved. In other words,
there must be a chain of evidence so far
complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and it must be
Patna High Court CR. APP (DB) No.845 of 2022 dt. 06-07-2023
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such as to show that within all human
probability the act must have been done by
the accused."
153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned "must or should" and
not "may be" established. There is not only a
grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was held
by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the
observations were made:
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between 'may be' and 'must be' is
long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
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not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
24. It appears from the impugned judgment that
conviction of appellant in present case was made by learned
Trial Court mainly by considering the statement of P.W.-6 as
made in Para-3, Para-4 and 13 of his cross-examination and also
by taking note of deposition of P.W.-3 as made in Para-2,
corroborating with finding of doctor (P.W.-7).
25. It would be appropriate to reproduce the relevant
quoted paragraphs of the impugned judgment, which is the basis
of conviction, as considered by the learned Trial Court, as to
complete the circumstances to secure conviction, which are as
follows:-
(i) The deposition of P.W.-2 in para-3 that "xkWao
ds yksx bUns"oj eaMy dk uke crkdj dg jgs Fks fd
mlus gh viuh iRuh Nsouh nsoh dh gR;k fd;k gSA"
(ii) The deposition of P.W.-3 Vikash Kumar in
Para-2 and 3 that "esjh ekWa ej xbZ gSA esjh ekWa tgWak
ejh Fkh ogkWa tkdj eSaus ns[kk Fkk fd esjh ekWa dk xyk
dVk gqvk FkkA"
In Para-3 that "esjs firkth tsy esa gSA"
(iii) The deposition of P.W.-6 Fucho Ram in
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Para-4 and 13 that "nkjksxk th ds le{k eSaus dgk
Fkk fd vfHk;qDr dks eSa dksdu flag ds ckWal ds fcV~Vk
ls Hkkxrs gq, ns[kk Fkk rFkk mlds diM+k esa [kqu yxk
ns[kk Fkk] rFkk fd ;g Hkh dgk Fkk fd mlds gkFk esa
nfc;k FkkA"
26. It appears from the deposition as reproduced
hereinabove that P.W.-2, namely, Anandi Sharma (informant)
came to know from unknown villagers that appellant/convict
committed murder of deceased Chhewani Devi. P.W.-3, who is
the minor son of deceased only stated that he saw the dead body
of his mother where he found her throat slitted, suggesting
maximum the homicidal death of deceased. Maximum emphasis
by learned Trial Court was given to the deposition of P.W.-6,
who in his cross-examination stated before the learned Trial
Court that he found the appellant running away from bamboo-
clump (place of occurrence) having 'dabiya' in his hand. It is
apparent from his deposition that though he saw blood-stained
cloth of appellant but, he failed to depose that whether any such
blood-stained was available on the 'dabiya' which was alleged
to be used to slit the throat of the deceased and merely on this
evidence only, his substantial deposition in examination-in-chief
that he knows nothing about the occurrence, cannot be
disbelieved. The basis of deposition of P.W.-2, informant is
hearsay input, whereas the deposition of P.W.-6 as surfaced
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during cross-examination of State is also creating a doubt, as he
noticed blood-stained on cloth of appellant but, he failed to
notice blood-stained on 'dabiya' which was just alleged to used
as murder weapon. The deposition of P.W.-7 and 8 is appearing
not relevant as to established the guilt of appellant/convict
beyond reasonable doubt.
27. Hence, by taking note of above discussed
circumstantial evidences as available on record, it can be safely
said that five golden principles as required to established the
guilt of appellant, as case is based upon circumstantial
evidences, is not appears available to us in view of the ratio laid
down in Sharad Birdhi Chand Sarda case (supra).
28. In view of above made discussions, the present
appeal is allowed. The impugned judgment of conviction dated
27.07.2012and order of sentence dated 28.07.2012 passed by Sri Shailendra Kumar, Adhoc Additional Sessions Judge No.2, Purnea in Sessions Trial No.315 of 2010/Trial No.288 of 2010 are, accordingly, set aside.
29. The appellant Indeshwari Mandal, who is in custody, is acquitted of the charge levelled against him. He is directed to be released from custody forthwith, if not required in any other case.
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30. It is further directed that fine, if any, paid in terms of order of sentence be returned to the appellant immediately.
(A. M. Badar, J.) (Chandra Shekhar Jha, J.) Sanjeet/-
AFR/NAFR NAFR CAV DATE 18-05-2023 Uploading Date 07-07-2023 Transmission Date 07-07-2023