Patna High Court
State Of Bihar vs Ganesh Mandal @ Bijay & Ors on 23 July, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Govt. Appeal (DB) No.40 of 1990
Arising Out of P.S.Case No. 10 Year-1986 Thana -Udakishunganj District- Madhepura.
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The State of Bihar
.... .... Appellant
Versus
1. Ganesh Mandal @ Bijay Mandal son of Puran Mandal,
2. Babulal Mandal son of Puran Mandal,
3. Sarwan Mandal son of Badri Mandal,
4. Badri Mandal son of Puran Mandal,
5. Bhagwan Mandal son of Puran Mandal &
6. Tej Narain Mandal son of Ganesh Mandal
All resident of village-Fatoria Bari, P.S. Alamnagar, District-Madhepura
.... .... Respondents
with
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Criminal Appeal (DB) No. 107 of 1990
Arising Out of P.S.Case No. 10 Year-1986 Thana -Udakishunganj District- Madhepura.
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Gujo alias Vijay Mandal, son of Ganesh Mandal, resident of village-Barki Fateria,
Police Station-Alamnagar, District-Madhepura
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
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Appearance :
(In G. APP. (DB) No. 40 of 1990)
For the Appellants : Shri Dilip Kumar Sinha, APP.
For the Respondent : Smt. Shashi Priya Pathak, Amicus Curiae.
.
(In CR. APP (DB) No. 107 of 1990)
For the Appellant : Smt. Shashi Priya Pathak, Amicus Curiae.
For the Respondent : Sri Dilip Kumar Sinha, APP.
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
and
HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) Date: 23-07-2014 Eight accused persons were put on trial initially by being Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 2 charged variously in Sessions Case No.7 of 1987 by the learned Additional Sessions Judge, Madhepura. While the trial was pending, one of the eight accused, namely, Rajendra Mandal died. The trial proceeding as against him was dropped, leaving seven accused persons on trial. As regards the charges, accused Ganesh Mandal alias Bijay Mandal, who is the one of the respondents in the connected Govt. Appeal he was indicted of committing an offence under Section 302/114 IPC whereas the solitary appellant of the connected Criminal Appeal, namely, Gujo alias Vijay Mandal was charged distinctly with committing offence under Section 302 IPC. The other accused persons were charged with commission of offence under Section 302/34 IPC. Appellant Gujo alias Vijay Mandal with Sarwan Mandal, one of the respondents in the Govt. Appeal was charged under Section 148 IPC whereas the remaining five respondents of the Govt. Appeal were charged under Section 147 IPC. Respondents Bhagwan Mandal, Badri Mandal (now dead) and Rajendra Mandal who died during trial, had been charged under Section 323 IPC. The judgment in the case was delivered on 06.03.1990 and the six respondents of the Govt. Appeal No.40 of 1990 were acquitted of all the charges framed against them while the solitary appellant of the connect Criminal Appeal No.107 of 1990 was convicted of offence under Section 302 IPC. Appellant Gujo alias Vijay Mandal was heard on sentence on the Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 3 same day and was directed to suffer rigorous imprisonment for life. The State of Bihar being aggrieved by and dissatisfied with the judgment of acquittal as regards the six respondents of Govt. Appeal No.40 of 1990 preferred that appeal to challenge the correctness of the findings leading to the acquittal of those respondents. The solitary appellant Gujo alias Vijay Mandal having been convicted and sentenced, preferred his appeal and this is how the two appeals came up before us for hearing. We have heard them together and we are disposing them of by this common judgment.
2. Some of the undisputed facts are that the deceased Naresh Mandal who was the full brother of P.W.10 (Suresh Mandal) was killed on 01.02.1986 in an incident having occurred at 8.30 A.M. and further that the cause of his death was an injury which was inflicted upon him by means of Kudal (spade). This also does not appear disputed that the occurrence had taken place on account of a controversy regarding possession of the prosecution party specifically Mahadeo Mandal (P.W.8) over a land which was a bit sallow while P.W.8 Mahadeo Mandal was preparing the land for transplanting onion saplings.
3. In the background of the above admitted facts, what was alleged is that while P.W.8 Mahadeo Mandal was preparing the soil of the sallow land which was located in the backyards of his Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 4 house, respondent Ganesh Mandal alias Bijay Mandal came there and started abusing him and asked him to leave aside half of the area of the land as that part of the land belonged to him. P.W.8 was not relenting. He was stating that he had been tilling the land since time immemorial and, as such, he would not relinquish his possession as desired by respondent Ganesh Mandal @ Bijay Mandal. It is stated that finding that P.W.8 was not stopping the spade work over the part of land claimed by the respondent Ganesh Mandal alias Bijay Mandal, he called respondents Badri Mandal (since dead), Bhagwan Mandal, Babulal Mandal, Rajendra Mandal (died during trial), Gujo alias Vijay Mandal (appellant in Cr.Appeal No.107 of 1990), Tej Narain Mandal and Sarwan Mandal who all came there running. It was stated that accused Badri Mandal (since dead) and respondents Bhagwan Mandal and Babulal Mandal were carrying lathies in their hands. Appellant Gujo alias Vijay Mandal was carrying a kudal which weapon was also carried by respondent Sarwan Mandal. It appears that by the time the accused persons had arrived at the sallow land which was being dug up by P.w.8 (Mahadeo Mandal), persons from the prosecution side, i.e., Naresh Mandal (deceased), Yogendra Mandal (P.W.7), Upendra Mandal (P.W.1), Kishunlal Mandal (P.W.2), Chandrashekhar Mandal (not examined) and Adhiklal Mandal (also not examined) also arrived at that particular land and Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 5 attempted to intervene in the quarrel, during which course the deceased accused Rajendra Mandal dealt a lathi blow to Yogendra Mandal (P.W.7) which hit him on his back. The other accused persons also assaulted and started giving incessant lathis blows. The informant Suresh Mandal (P.W.10) was hit by Badri Mandal with lathi on his left hand and left leg. P.W.10 started running towards south with others. While prosecution witnesses were running away, P.W.1 Upendra Mandal was given lathi blow on his head by respondent Bhagwan Mandal causing lacerated bleeding injuries to him. Respondent Tej Narain Mandal also gave a lathi blow to P.W.1 on his waist. The accused persons were chasing and assaulting the prosecution witnesses who were running hither and thither. The Informant stated that when he was standing near the house of one Yogendra Mandal with his wife Radha Devi (not examined), he found that his younger brother Naresh Mandal (deceased) had been caught by accused Rajendra Mandal and respondents Sarwan Mandal and Tej Narain Mandal. The deceased accused Rajendra Mandal had caught Naresh Mandal (deceased) by his hand while respondents Sarwan Mandal and Tej Narain Mandal had caught the legs of the deceased who pulled the legs of the deceased, as a result of which, he fell down on the ground, when respondent Ganesh Mandal @ Bijay Mandal remonstrated appellant Gujo Mandal alias Vijay Mandal by stating as Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 6 to what he was looking at, he should give a blow and no sooner respondent Ganesh Mandal @ Bijay Mandal had uttered the above words, appellant Gujo Mandal @ Vijay Mandal dealt a Kudal blow on the head of the deceased Naresh Mandal, as a result of which, it was cut and split up in two parts, as a result of which Naresh Mandal died near the Darwaja of Jageshwar Mandal.
4. The Informant rushed to the police station leaving the dead body of his brother at the place of occurrence to lodge the report.
5. P.W.11 S.I. Indra Deo Ram was the Officer Incharge of Alamnagar Police Station and he stated that Suresh Mandal (P.W.
10) came to the police station and gave his statement which was reduced into writing at his direction by Md. Khalid, the writer constable posted at the police station. After statement of P.W. 10 was reduced into writing the informant signed it and on that basis F.I.R. of the case (Ext. 4) was drawn up by Md. Khalid which bore the signature of P.W.11. the Officer-in-Charge of the Police Station. P.W.11 took up the investigation himself and recorded the further statement of the informant (P.W.10) as also the statement of his brother Jogendra Mandal (P.W.7) who had accompanied him up to the police station. He left the police station for the place of occurrence and reached there at 12 P.M. and found the dead body lying on a cot at the Darwaja of said Jageshwar Mandal. He held inquest upon the Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 7 dead body and prepared the inquest report by carbon process. The carbon copy was marked as Ext-5. He, thereafter, recorded the statements of P.W.2 Kishunlal Mandal, Adhik Lal Mandal (not examined) and sent the dead body for postmortem examination to the doctor. P.W.11 thereafter inspected the place of occurrence.
It was a place which was outside the Darwaja of the said Jageshwar Mandal which was situated to the east of the kachha road situated contiguous to the Darwaja of Jageshwar Mandal and the Mahavir Asthan the mast of which was also situated there. Blood was found at the Mahavir Asthan near the mast of the deity and the dead body was lying just west of the place where the blood was found east of the road. He also found a sallow land situated west of the house of Jageshwar Mandal and soil of the land was found freshly spaded. P.W.11 seized the blood which was found by him at the place of occurrence in presence of P.Ws.7 and 8, namely, Jogendra Mandal and Mahadeo Mandal by preparing seizure memo in that behalf. He, thereafter, arrested the two accused persons, namely, Bhagwan Mandal and Rajendra Mandal and also searched the house of appellant Gujo alias Vijay Mandal and recovered the spade from it which was as per the evidence of P.W.11 bearing some blood-like-stain. The seizure memo in respect of recovery of spade was prepared by P.W.11 in presence of one Kako Mandal (not examined) and P.W.6 Manohar Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 8 Mandal. The spade was produced during the trial before the court and that was marked material Ext-1. P.W.11 searched the four accused persons but did not find them and recorded the statements of Mahadeo Mandal (P.W.8), Manohar Mandal (P.W.6), Jai Jai Ram Mandal (P.W.4) and Wakil Mandal (P.W.5). He arrested the accused persons and after procuring the copy of the postmortem examination report and concluding the investigation, he sent up the accused persons for their trial.
6. The defence of the accused persons, as appears from suggestion given to P.W.2 Kishunlal Mandal in paragraph-7 of his evidence was that P.W.7 Jogendra Mandal had given a spade blow to respondent Bhagwan Mandal and he was brandishing the spade by moving it around him by his hand and while he was so moving the spade, it hit Naresh Mandal (deceased) who died of that particular injury at the very sallow land which was being spaded by P.W.8 (Mahadeo Mandal). It further appears that for the incident in which some of the accused persons were assaulted a criminal case had also been lodged by them.
7. In support of the charges, the prosecution examined as many as eleven witnesses, out of whom, P.W.1 Upendra Mandal, P.W.2 Kishunlal Mandal, P.W.4 Jai Jai Ram Mandal, P.W.7 Jogendra Mandal and P.W.10 Suresh Mandal came to support the charges as Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 9 eye witnesses to the occurrence. The other witnesses, like, P.W.3 Ajit Lal Mandal and P.W.8 Mahadeo Mandal were not an eye witnesses to the occurrence. P.W.5 Wakil Mandal had been tendered with P.W.9 Bilas Mandal.
8. The defence also examined two witnesses, i.e., Brahmdeo Mandal and Ramdeo Mandal who deposed on the fact which was suggested to P.W.2 Kishunlal Mandal in paragraph-7 by the defence that while P.W.8 Mahadeo Mandal was tilling the sallow land he was opposed in his exercise by deceased Ganesh Mandal and marpit had taken place. P.W.7 Jogendra Mandal had given a Kudal blow to respondent Bhagwan Mandal. Respondent Bhagwan Mandal was hit and in order to protect himself from being assaulted P.W.7 Jogendra Mandal brandished the spade by moving it around his body by hand and in that course, the deceased Naresh Mandal was hit on his head and succumbed to the injuries.
9. After considering the evidence of the eleven prosecution witnesses and two defence witnesses, the impugned judgment was passed by the learned trial Judge holding that charge under Section 302/34 or 302 was not established against the accused persons except appellant Gujo @ Vijay Mandal and that under Section 302/114 I.P.C. was also not proved against Ganesh Mandal alias Bijay Mandal. It was also held that charges under Section 147 and 148 as Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 10 also under Section 323 against other accused persons were not established by evidence and, as such, acquitted the six respondents, out of whom, respondent no.4 Badri Mandal died and, as such, the Govt. Appeal stood abated as against him. The learned trial Judge upheld that the participation of Gujo alias Vijay Mandal in giving a spade blow to the deceased was fully established and, as such, held him guilty under Section 302 IPC and sentenced him as pointed out at the very outset of the present judgment.
10. We have heard Sri Dilip Kumar Sinha, the learned counsel appearing on behalf of the State of Bihar in support of the Govt. Appeal. We have heard Smt. Shashi Priya Pathak, the learned Amicus Curiae who was requested by us to assist us in absence of counsel whose names appear in the list. Smt. Pathak appears on behalf of the solitary appellant in Cr.Appeal No.107 1990, namely, Gujo alias Vijay Mandal as also for five surviving respondents, namely, Ganesh Mandal alias Bijay Mandal, Babulal Mandal, Sarwan Mandal, Bhagwan Mandal and Tej Narain Mandal.
11. It was contended by Sri Sinha in support of State's appeal that the evidence of the witnesses clearly suggested that the witnesses, like, P.Ws.1,2,4,7,8 and 10 were assaulted by the accused persons. They had converged upon the swallow land where respondent Ganesh Mandal alias Bijay Mandal objected the spading Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 11 of the land by P.W.8 Mahadeo Mandal. The assault was so fierce and intense that the witnesses ran for their lives but still the respondents chased them and beat them up by lathi. Those witnesses, i.e., six in number, were injured which fact is proved from the evidence of P.W.11 who had issued the injury reports and had also obtained injury certificates from the doctor who had treated them and those injury reports and injury certificates were tendered in evidence by P.W.11 as may appear from his evidence in paragraphs-18 and 19 of his deposition. It was, as such, urged by the learned Public Prosecutor that they were acting in prosecution of the common object which they were prosecuting as members of an unlawful assembly and that common object was continued being prosecuting till they all had come to the Darwaja of Jogendra Mandal to surround the deceased Naresh Mandal where he was killed in the manner as stated by four witnesses. It was, as such, urged by the learned Public Prosecutor that the acquittal of the respondents for an offence under Section 302/34 or 302/149 or under Sections 147 and 148 was quite perverse and illegal. Likewise, acquittal of appellant Ganesh Mandal alias Bijay Mandal under Section 302 read with Section 114 of the IPC was also perverse. The weight of the evidence available on record proved the charges and the respondents were established to be guilty of the offences they had been charged with.
Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 12
12. As regards the appeal against conviction preferred by appellant Gujo alias Vijay Mandal, Smt. Pathak took us through the evidence of witnesses and submitted that the occurrence had taken place in two parts. The first part related to assault allegedly given by the accused persons to the witnesses at the shallow land which has been described by the witnesses as khanta and the second part of it had taken place, as per evidence and prosecution story, at the Darwaja of Jageshwar Mandal. It was submitted by Smt. Pathak that the evidence of the witness was as omnibus and indefinite as regards the assault on the witnesses by the accused persons as not to establish individual participation. The evidence might be showing that the witnesses had been assaulted by the accused persons but as regards the individual act of giving blows to any of the six prosecution witnesses who were allegedly injured in the incident, the evidence in that behalf was not clear and cogent and, as such, could not lead to an inference that any particular accused had given a blow to any particular injured witnesses. It was, as such, contended that the acquittal of the respondents for the charge under Section 302/34 or 323 IPC or for offences under Sections 147 and 148 IPC does not appear perverse. So far as the second part of the incident, that is, the killing of deceased Naresh Mandal is concerned, Smt. Pathak submitted that there were many anomalies in the prosecution Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 13 evidence. The first anomaly pointed out by Smt. Pathak was that while the prosecution evidence and the story was that the dead body was lying on the ground at the place of occurrence, P.W.11 found it lying on the cot and that no blood or anything was found at the shallow land, the first place of occurrence. Submission also was that there was some variance in the basic prosecution story and the evidence as regards the manner of instigating Gujo alias Vijay Mandal by respondent Ganesh Mandal alias Bijay Mandal to give the fatal blow to the deceased and that also indicates as if the prosecution witnesses were not telling the truth.
13. While hearing the submissions of the two learned counsel, we put a very categorical question to the learned Additional Public Prosecutor to clearly point out to us as to whether the story of assault on individual prosecution witnesses by any of the respondents was consistently corroborated by all the prosecution witnesses. What we wanted Sri Sinha to inform us from the evidence was as to whether P.W.1 Upendra Mandal who had alleged being assaulted by respondents Tej Narain Mandal and Bhagwan Mandal was indeed supported also by other witnesses who could have stated that indeed P.W.1 was assaulted by respondents Tej Narain Mandal and Bhagwan Mandal. Likewise, we also wanted to know from the learned Public Prosecutor as to whether P.W.7 Jogendra Mandal who claimed, as Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 14 per evidence of P.W.1 being assaulted by respondent Tej Narain Mandal had indeed been stated to be assaulted by respondent Tej Narain Mandal by other witnesses. We must record the fairness of Sri Sinha who submitted that the witnesses were not consistent in corroborating the individual assault given by respondents to the different witnesses and, as such, Sri Sinha was very fairly conceding that the story of assault which was given to the witnesses at the very sight of the swallow land might be true, but the individual act of giving blows by the accused persons does not appear getting consistent and uniform support from the witnesses.
14. We have also examined the evidence in the light of our query. In fact the very query which we had raised with the learned Additional Public Prosecutor was the result of our serious consideration of the evidence of the witnesses as we had found that the story of individual assault by accused persons to any particular witness had not uniformly been supported by the witnesses and in that view whereas the prosecution story on its first part was reliable the participation of individual accused in giving blows, in our opinion was not substantiated. In view of the inconsistent and varying evidence of the prosecution witnesses regarding the individual act of the respondents, we do not have any hesitation in holding that the charges under Section 323 IPC which was framed against some of the Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 15 accused persons could not be said to be established and the acquittal of respondents for that charge or for having participated individually in assaulting difference P.Ws. in the first part of the incident could not be said to be perverse. We hasten to add that this finding of ours does not mean that the genesis of the occurrence was not established. We find that the witnesses were consistent and reliable when they narrated the story of P.W.8 Mahadeo Mandal spading the shallow land for transplanting onion saplings when he was forbade to do so by respondent Ganesh Mandal alias Bijay Mandal which turned into a verbal duel which attracted the accused who were called to come there, and the witnesses, who were assaulted. In fact, the evidence of P.Ws.7,8 & 10 indicates that the accused persons were probably showing their number which was rejoined by the P.Ws. by retorting that they also had equal numbers, which ultimately turned in an assault being opened up by the accused on P.Ws. The fresh spading of the land was found by the I.O. P.W.11, which lends credence to the genesis part of the prosecution story.
15. Coming to the next part of the prosecution story, it relates to the final part of the incident when the prosecution witnesses had been driven away by the respondents after being beaten up by lathi. The prosecution story and the evidence was that the deceased Naresh Mandal was captured by the accused persons at the Darwaja Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 16 of one Jageshwar Mandal. As regards the accused persons capturing Naresh Mandal, five names clearly appeared from the evidence and they were respondents Ganesh Mandal alias Bijay Mandal, Sarwan Mandal, Tej Narain Mandal, deceased accused Rajendra Mandal and appellant Gujo alias Vijay Mandal. The prosecution story as per its evidence was that respondents Sarwan Mandal and Tej Narain Mandal had caught the deceased by his legs while the deceased accused Rajendra Mandal had caught him by his hand and as soon as deceased Naresh Mandal was captured by them, the two respondents, namely, Sarwan Mandal and Tej Narain Mandal pulled the legs of the deceased to fell him down on the ground. The manner in which he fell on the ground had been stated consistently by all the witnesses that he fell as if he had squatted on the ground by his buttock. It is at this stage that the prosecution witnesses stated that respondent Ganesh Mandal alias Bijay Mandal shouted at the appellant Gujo alias Vijay Mandal who was standing there with the spade asking him as what he was looking at; he give a blow with Kudal to deceased Naresh Mandal. As soon as these words were uttered by respondent Ganesh Mandal alias Bijay Mandal, appellant Gujo alias Vijay Mandal dealt a Kudal blow on the head of the deceased while standing in his back. All the witnesses are consistent word by word in narrating every part of this occurrence. We have considered the evidence of witnesses, Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 17 like, P.Ws.1,2,4,7,8 and 10 and we find that when it came to cross- examining those witnesses, as may appear from P.W.1 in paragraph-7, P.W.2 in paragraph-4 at page 21 of the paper book, P.W.4 in paragraph-3 at page-31 of the paper book, P.W.7 Jogendra Mandal in paragraph-5 at page-40 of his evidence, P.W.8 in paragraph-1 and finally P.W.10 in examination-in-chief in paragraph-1 at page-49 in cross-examination in paragraph-7 at page-56 of the paper book, we find the story of catching the deceased by his hands and legs was consistently stated by those witnesses. They stated that the deceased accused Rajendra Mandal caught the hands of the deceased Naresh Mandal while respondents Sarwan Mandal and Tej Narain Mandal caught his legs and pulled the same so as to felling him on the ground and at the instigation of respondent Ganesh Mandal alias Bijay Mandal, appellant Gujo alias Vijay Mandal dealt a blow with spade on his head which was cleavaged into two equal parts and while giving that blow, appellant Gujo alias Vijay Mandal was standing in the back of the deceased. There is no inconsistency, there is no variance and there is not even the slightest conflict in the description of the manner of occurrence which was given by the witnesses as regards killing deceased Naresh Mandal by giving the Kudal blow. Considering the evidence of witnesses, what we find is that the participation of five accused persons in commission of murder of Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 18 deceased Naresh Mandal could not be doubted. The evidence was very clear, at the same time it was equally cogent which established the participation of the deceased accused Rajendra Mandal, respondents Sarwan Mandal and Tej Narain Mandal as also respondents Ganesh Mandal alias Bijay Mandal who definitely appear having abated the appellant Gujo alias Vijay Mandal to give the fatal blow.
16. The I.O. P.W.11 found blood near the mast of Hanuman Asthan and had seized the blood stained earth in presence of witnesses. The place might not be the integral part of the Darwaja of Jageshwar Mandal, but may not it be a prudent inference of ours to note that after being caught or in the process of being captured, the deceased Naresh Mandal must have attempted to get away from the clutches of his captors and that attempt should have moved to and forth. Finding the dead body not on earth and on a cot, which was also the highlight of the submission of Smt. Pathak, to us appears not of serious consequence as moral life and thought process has its own peculiarity which may not be easy to explain, murder, proved and established, could not be rejected as hypothetical on those small and irrelevant pitfalls, moreso when the Inquest report Ext-5, an evidence, as to where the dead body was found lying clearly states that it was lying at the Darwaja of Jageshwar Mandal, where the P.W.11 had Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 19 found quite some amount of blood.
17. After having considered the evidence, what we find is that the finding recorded by the learned trial Judge so as to acquitting the respondents Ganesh Mandal alias Bijay Mandal, Sarwan Mandal and Tej Narain Mandal was perverse. In fact when we were considering the judgment of the learned Judge from paragraph-20 onwards we could not find that the individual participation of these respondents, namely, Ganesh Mandal alias Bijay Mandal, Sarwan Mandal and Tej Narain Mandal was even considered with reference to the evidence and it was a blanket order of acquittal which was passed without considering the evidence and the effect thereof as regards the proof of charges regarding their participation in the commission of the offence. In that view of the matter, the acquittal of respondents Ganesh Mandal alias Bijay Mandal, Sarwan Mandal and Tej Narain Mandal, i.e., respondents 1,3 and 6 of the Govt. Appeal appears quite perverse and against the weight of evidence available to us on record of the case. As such, the same is hereby set aside.
What we find further from the evidence is that they had definitely formed an unlawful assembly and the common object of that assembly was to commit murder and in prosecution of that common object they had caught hold of deceased Naresh Mandal and had committed his murder in the manner we have just described in the Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 20 preceding paragraph. They had definitely formed an unlawful assembly and in the face of the evidence available to us, we have no hesitation in convicting the respondents, Ganesh Mandal alias Bijay Mandal, Sarwan Mandal and Tej Narain Mandal. Respondents Ganesh Mandal alias Bijay Mandal and Tej Narain Mandal for the offence under Section 147 IPC and respondent Sarwan Mandal for the offence under Section 148 IPC as he was armed with spade while the remaining two respondents Ganesh Mandal alias Bijay Mandal and Tej Narain Mandal do not appear being armed with any deadly or dangerous weapon. Appellant Gujo alias Vijay Mandal had been acquitted for the offence under Section 148 IPC. The State has not filed any appeal, else we could have also considered convicting him under Section 148 IPC as he was the speared head of the unlawful assembly who had committed the murder of deceased Naresh Mandal by means of weapon like spade, in prosecution of the common object of the unlawful assembly which offence every member of that unlawful assembly knew likely to be committed. At any rate, he stands already held guilty of committing the offence under Section 302 IPC and on considering the evidence, we find no need to interfere with his conviction.
18. While making her submission Smt. Shashi Priya Pathak, the learned Amicus Curiae was strenuously submitting that it Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 21 was a case of solitary blow to the deceased. There was no repetition of blow and the incident had occurred on account of some hot exchange of words and may be some exchange of blows also and, as such, the solitary blow might have been given in the heat of passion. Smt. Pathak was submitting that it may not be a case under Section 302 IPC and considering that the Court should convert the conviction of appellant Gujo alias Vijay Mandal from Section 302 IPC to Section 302 part-II of the IPC and take a lenient view while passing sentence upon him.
19. In order to answering the submission raised by the learned Amicus Curiae, we want to consider some attending circumstances of the case as regards the commission of murder of deceased Naresh Mandal. Indeed it was a very trifle murder, that is, the digging up of the shallow land and the dispute was for possession thereof. It may also be a fact that there would have been some hot exchange of words and may be exchange of a few blows also, but the proved facts indicated that the accused persons chased the witnesses down. The very evidence does not indicate that deceased Naresh Mandal had participated in any manner in the initial part of the occurrence. He ran away from the scene of occurrence. The evidence indicated that he was standing after having taken shelter at the Darwaja of Jageshwar Mandal. The accused persons ran and chased Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 22 the witnesses and having not got them ultimately found the deceased at the place of occurrence. The defence suggestion also indicated that the killing of deceased Naresh Mandal was the result of a spade blow and it was not denied. It was true that the doctor was not examined and the postmortem report had been tendered in evidence by P.W.11 the I.O. of the case but considering the undisputed fact of killing deceased Naresh Mandal by use of a spade which could not be a less dangerous weapon and the manner and circumstances under which deceased Naresh Mandal was brutally killed, we feel that it could not be a case under any other Section than Section 302 IPC.
20. Thus, in the light of the discussions we have just made, we hold respondent Ganesh Mandal alias Bijay Mandal guilty for the offence under Sections 147 or 302/114 IPC and the remaining respondents, namely, Sarwan Mandal, Tej Narain Mandal guilty for the offence under Section 302/149 IPC. We direct the three respondents, namely, Ganesh Mandal alias Bijay Mandal, Sarwan Mandal and Tej Narain Mandal to suffer rigorous imprisonment for life for their individual convictions recorded above which sentence was inflicted upon convicting appellant Gujo alias Vijay Mandal whose appeal appears of no merit. As regards respondents Babulal Mandal and Bhagwan Mandal, we have not found any evidence of their participation on account of being the member of the unlawful Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 23 assembly. The witnesses did state that all the accused persons had surrounded the deceased Naresh Mandal but had not specifically named except any other than those five accused. We extend benefit of doubt to respondents Babulal Mandal and Bhagwan Mandal and uphold their acquittal which was recorded by the learned trial Judge.
21. As a result of our discussion of the evidence and consideration thereof, we allow the Govt. Appeal to the extent we have just recorded to hold guilty respondent Ganesh Mandal alias Bijay Mandal for the offences under Sections 147 or 302/114 IPC and sentenced him to suffer rigorous imprisonment for life. We do not propose to pass any sentence upon him for the offence under Section 147 IPC. The remaining two respondents, namely, Sarwan Mandal and Tej Narain Mandal are held guilty of committing offences under Sections 147 and 148 IPC respectively as also under Section 302/149 IPC and each of them is sentenced to rigorous imprisonment for life. We are not passing any sentence against respondents Sarwan Mandal and Tej Narain Mandal for being convicted under Sections 147 and 148 IPC respectively in view of sentence we have already inflicted upon them under Section 302/149 IPC. We do not disturbe the findings of guilt and order of sentence passed by the learned trial Judge upon the solitary appellant Gujo alias Vijay Mandal in Cr.Appeal No.107 of 1990.
Patna High Court G. APP. (DB) No.40 of 1990 dt.23-07-2014 24
22. Smt. Shashi Priya Pathak has assisted us with all zeal and vigour in both the appeals and we direct that she should be paid one fee of hearing in each of the two appeals by the Patna High Court Legal Services Committee and for that purpose, let the copies of first and last pages of the impugned judgment be made over to Smt. Pathak.
(Dharnidhar Jha, J)
Abhay/Brajesh Kr. (Amaresh Kumar Lal, J)
U T