Patna High Court
Naresh Mandal & Ors vs State Of Bihar on 12 April, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.254 of 2001
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1. Naresh Mandal Son of late Bhim Mandal
2. Anil Mandal son of late Gore Lal Mandal
3. Laxmi Mandal son of late Bhim Mandal
All resident of village Gauripur P.S. Naya Ram Nagar District Munger
.... .... Appellants
Versus
State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 261 of 2001
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1. Jhaksu Mandal
2. Baleshwar Mandal both sons of late Mohan Mandal
3. Horil Mandal
4. Bitra Mandal @ Nitra Mandal both sons of late Dhathura Mandal
5. Rajendra Mandal son of Daro Mandal
6. Shankar Mandal son of Rajendra Mandal
7. Arjun Mandal son of Gurudeo Mandal
8. Gohali Tanti son of Pairu Tanti
All resident of village Gauripur P.S. Naya Ram Nagar District Munger
.... .... Appellants
Versus
State Of Bihar
.... .... Respondent/s
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Appearance:
(In CR. APP (SJ) No. 254 of 2001)
For the Appellants : Mrs. Indu Ambastha, Advocate
For the Respondent: Mr. Sujit Kumar Singh, A.P.P.
(In CR. APP (SJ) No. 261 of 2001)
For the Appellants : Mrs. Sudha Kumari Ambastha, Advocate
For the Respondent: Mrs. Abha Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
Date: 12-04-2013
1. All the above named appellants have been convicted for
the offence punishable under section 307/34 of the Indian Penal Code
and were sentenced to undergo rigorous imprisonment for ten years
Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 2
under the above stated section and furthermore, appellant no.1 in Cr.
Appeal no.254/2001, namely, Naresh Mandal was separately
convicted for the offence punishable under section 323 read with
section 147 of the Indian Penal Code and was sentenced to undergo
rigorous imprisonment for one year for the aforesaid offence by
learned Addl. Sessions Judge III, Munger vide impugned judgment of
conviction dated 23.7.2001 and order of sentence dated 26.7.2001
passed in Sessions trial no. 638/1990 and accordingly, both the above
stated criminal appeals were heard together and a common judgment
is being delivered in both the above stated criminal appeals.
2. In brief, the prosecution case, is that P.W. 6, Laxmi
Pandit gave his fardbeyan to ASI of Kotwali police station on
17.1.1990at 7.10 p.m. in injured condition at sadar hospital Munger to this effect that he had taken a pond for fishing in auction from the government which had caused annoyance to Mandal community of his village. He further stated that on the morning of the same day, he had put soil in front of his house and Bito Mandal came on rickshaw and some hot exchange of words took place between him and the aforesaid Bito Mandal but due to intervention of villagers, matter was pacified. He further stated that Mandal community of his village hatched up a conspiracy to assault him as well as his family members and on the same day at about 4.30 p.m. while he was returning to attend the call of nature and reached near a school, appellants Anil Mandal, Naresh Mandal and one co-accused Dayanand Mandal surrounded him and the appellant- Anil Mandal as well as co-accused Dayanand Mandal put pistols on him whereas the appellant-Naresh Mandal started Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 3 assaulting him with lathi as a result of which he sustained injuries on his head, hands and legs. He raised alarm which attracted his brother Rajendra Pandit (P.W.5) who came running there but, in the meantime, Laxmi Mandal, Baleshwar Mandal, Jhapso Mandal, Bitra Mandal, Langra Mandal, Horil Mandal, Shankar Mandal, Rajendra Mandal,Mahto Mandal, Gohali Tanti and Arjun Mandal having armed with lathi in their hands came there and at the instigation of Anil Mandal, they started assaulting his brother Rajendra Pandit with lathi. The villagers came there having heard noise, and after that the above stated persons fled away from there. P.W.6 noticed that his wrist watch and some cash were missing and after the aforesaid occurrence P.W.5 and P.W.6 were brought to hospital by the villagers. The alleged occurrence is said to have taken place on account of previous enmity.
3. On the basis of the aforesaid fardbeyan, Naya Ramnagar P.S. case no.07/1990 was registered for the offences punishable under sections 147, 148, 341, 323, 379 of the Indian Penal Code and formal FIR was drawn up under the aforesaid sections against the appellants and others. The matter was investigated by the Investigating officer and after completion of investigation, charge sheet was submitted against fourteen persons including the appellants for the offences punishable under sections 147, 148, 341, 323, 379, 325, 307 of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way.
4. Appellants along with co-accused stood trial and they were jointly charged for the offence punishable under section 307 read Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 4 with sections 149 and 379 of the IPC whereas the appellant- Naresh Mandal was, separately, charged for the offences punishable under sections 323, 147 of the IPC. Furthermore, the appellant Anil Mandal and -accused Dayanand Mandal were jointly charged for the offence punishable under section 148 of the IPC and the appellants Laxmi Mandal , Baleshwar Mandal, Jhaksu Mandal, Dyanand Mandal, Shankar Mandal, Rajendra Mandal, Naresh Mandal, Baleshwar Mandal, Horil Mandal, Bitra Mandal and Arjun Mandal were jointly charged for the offences punishable under sections 325, 147 of the IPC. Appellants denied the charges and claimed to be tried.
5. In course of trial, altogether, seven prosecution witnesses were examined and besides it, prosecution got exhibited documentary evidence including injury reports of P.W.5 and P.W.6 and some money receipts. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they denied the prosecution story.
6. One defence witness, Dr. Krishna Kishore Bajpaie, was examined and the aforesaid witness proved injury report of the appellant- Shankar Mandal as exhibit A.
7. The learned trial court, having considered the testimonies of prosecution witnesses as well as documentary evidence, passed the impugned judgment of conviction and order of sentence against the appellants in the manner as stated above.
8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove the motive as well as manner of occurrence and failed to take notice of counter case as well as Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 5 injury sustained by the appellant- Shankar Mandal. Learned counsel for the appellants further submitted that the learned trial court relied upon unexhibited document which is not permissible in the eye of law and therefore, the impugned judgment of conviction and sentence order can not sustain in the eye of law. Learned counsel for the appellant also submitted that Investigating officer was not examined by the prosecution and non-examination of the Investigating officer caused serious prejudice to the appellants.
9. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that P.W.5 and P.W.6, the injured persons of this case, have fully supported the prosecution case and P.W.7, who examined P.W.5 and P.W.6 after the alleged occurrence, found several injuries on the persons of P.W.5 and P.W.6 and therefore, the prosecution succeeded to prove its case beyond all shadow of reasonable doubts.
10. As I have already stated that, altogether, 7 prosecution witnesses have been examined. Out of them, P.W. 1 and P.W.2 are formal witnesses and they have proved formal FIR as well as fardbeyan as exhibits 1 and 2 respectively. They have stated nothing in respect of alleged occurrence.
11. P.W.3, Subodh Pandit and P.W.4, Pramod Pandit claimed themselves to be eye-witness of the alleged occurrence.
12. P.W.5, Rajendra Pandit is injured whereas P.W.6 Laxmi Pandit is the informant as well as injured of this case.
13. P.W.7, Dr. Sudhir Kumar examined P.W.5 and P.W.6 Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 6 after the alleged occurrence and proved injury reports of the above stated injured persons as exhibits 4 series.
14. P.W.3, Subodh Pandit stated that while he was returning after attending the call of nature, he saw the appellant Anil Mandal and accused Devanand Mandal who had put pistols on P.W.6 whereas Naresh Mandal was assaulting P.W.6 by lathi. This witness further stated that when P.W.5 came there on the hue and cry of P.W.6, all the appellants started assaulting him with lathi. This witness disclosed the names of Jhaksu Mandal , Shakar Mandal , Anil Mandal, Naresh Mandal, Langra Mandal, Rajendra Mandal and could not remember the names of rest appellants. This witness further said that injured persons were taken to hospital by the villagers and P.W.5 remained in hospital for more than one month. He disclosed the genesis of the occurrence saying that one pond had been settled to P.W.6 and the appellants could not take settlement of the aforesaid pond and that was the reason of the occurrence. This witness, specifically, stated that he had made statement before the police that Laxmi Mandal, Anil Mandal, Dayanand Mandal had put pistols on P.W.6. This witness stated that he had not seen as to whether any person had assaulted the appellant Shankar Mandal or not but he admitted that he had seen injury on the person of Shankar Mandal. This witness further stated that the alleged occurrence had taken place in public park but he could not say as to whether P.W.6 had crossed the aforesaid park or not. He further admitted at para 12 of his cross-examination that no one went to save P.W.5 and P.W.6. He also admitted in his cross-examination that pond had been settled 10 to 12 years ago and a proceeding had Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 7 been initiated in respect of the aforesaid pond between the appellants and Laxmi Pandit about 7 to 8 years ago. The defence, specifically, suggested him that no occurrence had taken place in respect of the pond but this witness denied the above stated suggestion of the defence. Furthermore, this witness denied the suggestion of defence that P.W.6 stopped one Harinandan while he was going by his rickshaw and the aforesaid Harinandan and the appellant Shankar Mandal were assaulted by P.W.5 and P.W.6 and when the villagers came to their rescue, P.W.5 and P.W.6 sustained injuries at the hands of the villagers.
15. P.W.4, Pramod Pandit supported the prosecution story in his examination-in-chief but when he cross-examined, he stated that he had not seen any injury on the person of Shankar Mandal. The attention of this witness was drawn by the defence towards his previous statement recorded by police. He admitted that when P.W. 6 was being assaulted, none had gone to save him except P.W. 5. He also admitted that all the appellants had not assaulted P.W. 6 and similarly, P.W 5 was assaulted by some appellants and P.W.5 was not assaulted by the appellants Anil Mandal, Naresh Mandal and one co- accused Dayanand Mandal
16. P.W. 5 has also supported the prosecution case in his examination-in-chief and stated that police recorded his statement in hospital on 18.1.1990 and later on, he was referred to PMCH, Patna where he reached on 20.1.1990 but due to strike of doctors, he could not got admitted in PMCH, Patna and after that he got admitted himself in a private clinic, namely, Kaya clinic. This witness denied Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 8 this fact that the appellant Shankar Mandal was assaulted by them and this witness stated that he had not seen any injury on the person of Shakar Mandal but admitted this fact that for the same occurrence, Shakar Mandal had lodged a case against his brother and others. This witness also denied this fact that the present case was lodged to save skin from the counter case.
17. P.W.6, Laxmi Pandit, is the informant and injured of this case. He, too, supported his fardbeyan in his examination-in-chief and proved the signature on fardbeyan as exhibit 1. He also stated that his brother P.W. 5 was referred to Patna where his treatment was done in a private clinic and P.W.5 remained there for near about one week. He stated that in front of his house, there was a pond which had been taken by this witness on settlement. He further stated that the appellants also wanted to take settlement of the aforesaid pond but could not succeed which caused annoyance to them and they committed the alleged occurrence. On being cross-examined by the defence, this witness admitted that the appellant Shankar Mandal had filed a case against him and others for the occurrence of the same day but in the aforesaid case he as well as co-accused were acquitted. He further stated that he had not seen any injury on the person of appellant Shankar Mandal. He admitted in his cross-examination that settlement of the pond had taken place prior to 1.3.1985 for the period of nine years. This witness further stated that all the appellants had filed a petition for cancellation of the aforesaid settlement but they could not succeed in their attempt. He also admitted that after settlement and prior to alleged occurrence, no quarrel had taken place Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 9 on the point of fishing and only hot exchange of words had taken place between him and the appellants though he had not given any information regarding the aforesaid hot of exchange of words to the police officials.
18. P.W.7, Dr. Sudhir Kumar stated that he found, altogether, six injuries on the person of P.W.6 and out of the aforesaid six injuries, three injuries were simple in nature whereas opinion regarding two injuries were kept reserved in absence of x- ray report as well as opinion regarding nature of the injury was also kept reserved due to requirement of consultation of surgeon. He found that all the aforesaid injuries were caused by hard and blunt substance. This witness further stated that on 17.1.1990 at about 6.10 p.m. P.W. 5 was examined by him. He found, altogether, five injuries on his person. This witness stated that he found two injuries simple in nature whereas he did not give any opinion regarding rest injuries. He also stated that patient was referred to PMCH, Patna on 19.1.1990 but due to strike of doctors, patient went to Dr. R.B. Sharma at Patna as has been told by the patient.
19. On perusal of the above stated evidences, it is apparent that there was no intervening circumstance to prevent the appellants to commit murder of P.W.6 and P.W.5 as both the injured persons as well as eye-witnesses stated that none came in rescue of P.W.6 and P.W.5 and after the aforesaid occurrence, when witnesses arrived, the appellants themselves left P.W.6 and P.W.5. Furthermore, it is the case of the prosecution that two appellants were armed with fire arms but admittedly, no fire arm was used for committing the alleged Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 10 occurrence and therefore, the aforesaid circumstance clearly indicates that appellants had no intention to commit the murder of P.W.5 and P.W.6 because had the appellants been intended to commit murder of P.W.6 and P.W.5, at least, two appellants who were armed with fire arms would have used fire arms. Furthermore, I find that no x- ray plate was produced nor any Radiologist was examined and apart from this, the doctor who is said to have examined P.W.5 in his private clinic at Patna, was also not examined nor supplementary injury report was produced before the learned trial court. Further, I find from perusal of the impugned judgment that an injury report of P.W.6 prepared by a private doctor, namely, R.B. Sharma was filed before the learned trial court but the aforesaid injury report was not proved legally by the prosecution. Furthermore, I find that even though the aforesaid injury report of P.W.5 was not legally proved, the learned trial court relied upon the aforesaid injury report and based his finding on the above stated injury. In my view, the learned trial court committed error in relying on a document which has not been brought in evidence in accordance with law. Therefore, it is clear that there is nothing on the record to prove this fact that P.W.6 and P.W.5 had sustained grievous injury in the alleged occurrence and, therefore, it can easily be said that the prosecution succeeded to prove this fact that P.W.7 found simple injury on the persons of P.W.6 and P.W.5 after the alleged occurrence.
20. P.W.6 stated that the appellants were annoyed as the settlement of the pond had been made in his favour and due to the aforesaid annoyance, the appellants committed the alleged crime. Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 11
21. The defence of the appellants is that on the alleged date of occurrence, one Harinandan was assaulted by the prosecution party while he was going by his rickshaw through the path which had been encroached by P.W.6 and when the appellant Shankar Mandal, went to his rescue, the aforesaid Shankar Mandal was assaulted by the prosecution party and furthermore, when villagers came to rescue, Shankar Mandal and Harinandan were assaulted by P.W.6 and P.W.5. P.W.3 has admitted in his deposition that he had seen injury on the person of appellant- Shankar Mandal and furthermore, P.W.6 admitted that Shankar Mandal had filed a case for the occurrence of the same day but the appellants had not brought FIR of the above stated counter case in evidence. So, it is very difficult to know as to when the occurrence of counter case took place. Furthermore, it is obvious from perusal of the deposition of P.W.6 that the settlement of the pond had taken place five to seven years ago and after settlement, no quarrel had taken place between the parties prior to the alleged occurrence and, therefore, it appears to me that the prosecution has suppressed some facts and has not disclosed real cause of the alleged occurrence.
22. As I have stated that P.W.6 and P.W.5 supported the alleged occurrence and doctor also found some injuries on the persons of P.W.6 and P.W.5 and , therefore, even if the prosecution failed to prove the charge framed under section 307 of the IPC against the appellants, then also, I am of the view that prosecution succeeded to charges framed under sections 323 and 147 of the IPC against the appellants. Accordingly, conviction of the appellants is altered under Patna High Court CR. APP (SJ) No.254 of 2001 dt.12-04-2013 12 section 323 of the IPC in place of section 307/34 of the IPC.
23. As I have discussed above that prosecution has succeeded to prove for the offence punishable under section 323 and 147 of the IPC against the appellants but so far as quantum of punishment is concerned, admittedly, alleged occurrence took place in the year 1990 and since then the appellants are facing trauma of this case. Furthermore, I find that the alleged occurrence took place on account of petty dispute and parties filed case and counter case against each other and persons from both sides sustained injuries. In my view, it would be improper to send the appellants behind the bar and the ends of justice will meet, if the appellants are released after due admonition under section 3 of the Probation of Offenders Act and accordingly, the appellants are released after due admonition under section 3 of the Probation of Offenders Act.
24. In view of the aforesaid discussions, both the above stated criminal appeals are dismissed with modification in the judgment of conviction and order of sentence in the manner as stated above.
Shahid/AFR (Hemant Kumar Srivastava,J)