Beni Yadav vs The State of Jharkhand

Heard learned counsel for the appellants and the learned

counsel for the State.

The appellants are aggrieved by the Judgement of

conviction and Order of sentence dated 30.04.1992 passed by the

learned 2nd Additional Sessions Judge, Dumka, in S.C. No. 259 of

1991, whereby both these appellants were convicted for the offence

under Section 302 of the Indian Penal Code, and upon hearing on the

point of sentence, they were sentenced to undergo rigorous

imprisonment for life.

The case relates to triple murder. The F.I.R. was instituted

on the basis of the fardbeyan of Bhola Mandal, who happens to be

the father of two of the deceased, namely, Kanti Mandal and Makuni

Mandal. According to the prosecution case, on 18.06.1990 in the

early morning at about 3:00-4:00 A.M., both the aforesaid sons of the

informant were going to bring paddy straw (Puwal) on bullock carts

from another village namely, Parekesho. The informant and one

Rohan Chaudhary of their village also accompanied them. Rohan

Chaudhary sat along with Kanti Mandal and the informant sat along

with Makuni Mandal (on the two bullock carts on which they were

going to bring the paddy straw, as has come in the evidence). In the

way the informant got the call of the nature and he got down from

the bullock cart and went towards the river for easing himself and

the bullock carts proceeded. After some time he heard the alarm

raised by his sons and he rushed towards the bullock carts which

were going ahead, and when he reached near, he saw the appellants

Binod Chaudhary @ Indu Mandal and Anil Chaudhary who are own

brothers, and Suresh Chaudhary and Sarjug Mamrik. There were two

to three other persons also whom the informant did not identify. Out

of fear the informant concealed himself in the Palash forest. In the

meantime several persons from the village Narhibaran had

assembled there, but the informant kept himself concealed. In the

meantime several persons of the informant''s village, i.e., Ghongha

Dhekcha also reached there and upon hearing the voices of the

persons of his village he came out of the forest. By that time the

darkness had started clearing off, and he found four persons (named

in the F.I.R.) of Narhibaran village and more than 11 persons of his

own village assembled there whom he informed about the accused

persons. When his son Kanti Mandal gained some consciousness he

named Anil Chaudhary and Binod Chaudhary. (Though it is not stated

in the FIR, but in the evidence it has come that Rohan Chaudhary

was found dead on one bullock cart at the spot). Both the injured

were taken to Nonihat hospital for treatment but Kanti Mandal died in

the way, and before his death, he named Binod Chaudhary and

Anil Chaudhary. They took the dead body of Kanti Mandal and the

injured Makuni Mandal to Nonihat hospital where the police papers

were demanded and thereafter they proceeded towards the Jarmundi

hospital. In the meantime one police jeep arrived and took the

injured Makuni Mandal to Jarmundi hospital, but in the way Makuni

Mandal also died, whose dead body was brought to the police station.

The informant had brought the dead body of his son Kanti Mandal to

the police station on the bullock cart. The informant has stated that

the occurrence had taken place due to long drawn enmity between

the parties, as the accused Binod Chaudhary was taken in adoption

by the aunt of the informant and both the brothers were demanding

partition of the family property for which there were litigations also

between them. In the previous evening there was a panchayati also

for partition of the family property in which both the accused were

also present and there was a quarrel between Anil Chaudhary and

Makuni Mandal, who had also threatened. The informant alleged that

due to this long drawn enmity both the sons of the informant and

Rohan Chaudhary were murdered by the accused persons. The

fardbeyan of the informant to the aforesaid effect was recorded near

Motihara River at 8:30 hours, on the basis of which Jarmundi P.S.

Case No. 71 of 1990, corresponding to G.R. No. 537 of 1990 was

instituted against four named accused persons and three to four

unknown persons and investigation was taken up. After investigation

the police submitted the charge-sheet only against the accused

Binod Chaudhary @ Indu Mandal and Anil Chaudhary, who faced the

trial.

After commitment of the case to the Court of Session,

charge was framed against both the accused for the offence under

Section 302 of the Indian Penal Code, and upon the accused persons''

pleading not guilty and claiming to be tried, they were put to trial. In

course of trial 12 witnesses were examined by the prosecution,

including the informant, the I.O., and the doctor who had conducted

the post-mortem examination on the dead bodies. It may be stated

at this place that P.W.-2 Jaganath Chaudhary, P.W.-4

Madan Chaudhary (son of Rohan Chaudhary, the deceased), P.W.-5

Laxman Layak, P.W.-6 Upendra Chaudhary, P.W.-7 Naresh Chaudhary

and P.W.-8 Govind Chaudhary, had become hostile at one point or

the other.

Though in the F.I.R. the informant has named the four

accused persons without attributing any allegation of assault against

them, or stating that they were armed with any weapon, as also it

appears from the F.I.R., that the time of occurrence was still dark and

upon seeing the accused persons the informant had concealed

himself in the Palash forest and he came out only after hearing the

voices of his own villagers, when the darkness had started clearing

off, which makes it doubtful whether the informant was an eye

witness to the occurrence, the informant Bhola Mandal, who was

examined as P.W.-10 in the case has attributed the allegation of

assault against the accused persons, stating that they were variously

armed, claiming to be the eye witness to the occurrence. This

witness has stated that the occurrence is of the night between

Sunday and Monday at about 3:00-4:00 A.M. in the morning. This

witness and his sons Kanti Mandal and Makuni Mandal were going on

bullock carts for bringing paddy straw from Parekesho village,

whereas Rohan Chaudhary was also going with them to another

village. They were going on two bullock carts and when they reached

near Motihara River the informant got the call of nature and he went

to ease himself. Both the bullock carts proceeded further. After

easing himself he heard the alarm raised by his sons, whereupon he

went running and saw Binod Chaudhary, Anil Chaudhary, Suresh

Chaudhary and Sarjug Mamrik and three other persons, whom he did

not identify, all of them were assaulting Kanti, Makuni and Rohan.

Binod and Suresh were armed with Tanga, Anil was armed with

Barchi, Sarjug was armed with Tanga and the three unknown persons

were also armed with Lathi and Tangi and they all were assaulting all

the three persons. This witness concealed himself in the Palash

bushes out of fear. Other persons of village Narhibaran and of the

informant''s village reached there, whereupon he came out of the

bushes and went to the place of occurrence. By that time the

accused persons had fled away. Rohan was found dead on one

bullock cart, Makuni and Kanti were alive. This witness informed all

the persons who had assembled that all the four named accused

persons and three unknown persons had assaulted all the three

victims by Tangi and Barchi. Kanti and Makuni were taken on a

bullock cart to Nonihat hospital. Sitaram Mandal, Bichhu Khirhar,

Upendra Chaudhary, Govind Chaudhary and Bhikhal Chaudhary of his

village also accompanied them. In the way Kanti Mandal gained

consciousness and he informed that Anil Chaudhary and Binod

Chaudhary had assaulted them. Thereafter he again became

unconscious and after some time he died. They reached Nonihat

hospital, but the doctor asked for the police papers. Thereafter they

were taking both the victims to Jarmundi, in the way police jeep

arrived and Makuni was taken to Jarmundi hospital on the police jeep,

but he died in the way. This witness has stated that his statement

was recorded by the police near Motihara river whereupon he had

put his signature, which he identified, which was earlier marked

Exhibit 1/10. Other witnesses had also put their signatures. This

witness has also stated that his Aunt had taken Binod Chaudhary as

son in adoption and there was property dispute between them. He

has stated about the panchayati held between the parties in which

the threatening was also given. He has identified both the accused in

the Court. This witness was put to cross-examination and in his cross-

examination he has admitted that there was criminal case also

between them in which he was an accused. He has also stated that

village, Parekesho (where they were going to bring the paddy straw)

was at a distance of about 10 to 11 miles from his village. He has

also stated that when he reached the place of occurrence, he saw

that the oxen were unyoked from the bullock carts, two of them were

tied in the wheel of one bullock cart and two of them had fled away.

Rohan was lying dead on one of the bullock carts. He has stated that

he and the villagers of Narhibaran had reached the place of

occurrence at the same time and he had informed them about the

occurrence. He has further stated that it was a moon-lit night in

which he had seen the occurrence, but he did not raise any alarm

and he concealed himself. This witness has also stated that he had

sent Dhaneshwar and Bishwanath Chaudhary to the police station

and the names of the accused persons were also informed to them.

They returned back from the police station at about 6:00 to 6:30 A.M.

He has also stated in his cross-examination that he had not gone to

the police station, rather he had gone there in the evening of

Monday. His attention was drawn towards his statements made in the

fardbeyan and he has stated that he had got it recorded in the

fardbeyan that Binod Chaudhary, Anil Chaudhary, Saresh Chaudhary

and Sarjug Mamrik and three to four other persons were assaulting

Kanti and Makuni by Lathi, Tangi and Barchi which he had seen. He

has denied the suggestion that he had stated before the police that

he had only seen those persons. He has also stated that he got it

recorded in the fardbeyan that Kanti Mandal informed that Anil

Chaudhary and Binod Chaudhary had assaulted them. He has denied

the suggestion to have given false evidence due to enmity.

P.W.-1 is Sitaram Mandal, who has supported the

prosecution case, but he had reached the place of occurrence upon

knowing about it. When he reached the place of occurrence he found

Kanti Mandal, Makuni Mandal and Bhola Mandal there. Rohan

Chaudhary was dead on a bullock cart and Kanti Mandal and Makuni

Mandal were badly injured. This witness along with others took the

injured to Nonihat hospital. He was informed by Bhola Mandal that

Anil Chaudhary and Binod Chaudhary alongwith some other unknown

persons had assaulted the deceased and the injured by Tangi and

Barchi. While being taken to Nonihat hospital, Kanti Mandal also

informed that Anil Chaudhary and Binod Chaudhary had assaulted

them and thereafter he died. At Nonihat hospital police papers were

demanded. Thereafter they were being brought to Jarmundi, in the

meantime the police jeep arrived and Makuni Mandal was taken on

the police jeep to Jarmundi hospital, but by the time they reached the

hospital, Makuni Mandal also died. The Inquest report of the dead

body of Makuni Mandal was prepared whereon this witness and

Jagnath Chaudhary put their signatures which he identified and they

were marked Exhibits 1 and 1/1. The inquest report of the dead body

of Kanti Mandal was also prepared on which this witness and

Prabhakar Manjhi put their signatures and on identification they were

marked Exhibits 1/2 and 1/3. This witness has also stated about the

panchayati in the previous evening in which threatening was given

by Anil Chaudhary to Makuni Mandal. This witness has identified both

the accused in the Court. In his cross-examination this witness has

stated that when he reached the police station his statement was

recorded by the police which was read over to him and he had put

his signature on that. He has stated that the inquest reports were

prepared at the police station.

P.W.-3 is Dhaneshwar Layak, who also deposed that when

he went to the place of occurrence he saw Kanti Mandal and Makuni

Mandal in injured condition and he saw Rohan Chaudhary dead on

the bullock cart. He has stated that Bhola Chaudhary had informed

him that Binod Chaudhary and Anil Chaudhary had assaulted Makuni,

Kanti and Rohan by Tangi and Barchi.

P.W.-6 Upendra Chaudhary, had also gone to the place of

occurrence upon getting the information about the occurrence and

he saw Kanti Mandal and Makuni Mandal in the injured condition and

Rohan Chaudhary dead on the bullock cart. Binod Mandal informed

them that Anil Chaudhary and Binod Chaudhary had assaulted all the

three. Kanti and Makuni were being brought to hospital but they died.

Kanti did not inform anything and at this point this witness was

declared hostile by the prosecution.

P.W.-9 is Prabhakar Manjhi, who is a witness to the inquest

report of the dead body of Rohan Chaudhary which was prepared in

Narhibaran forest, upon which this witness and Madan Chaudhary

had put their signatures. He has identified the signatures which were

earlier marked as Exhibits 1/4 and 1/5. He is also the witness to the

inquest report of the dead body of Kanti Mandal and he has identified

the signatures of himself and the other witnesses. This witness has

stated that Bhola Mandal had given his fardbeyan at the police

station in his presence whereupon also he and other witnesses had

put their signatures which he had identified and which were marked

as Exhibits 1/6 to 1/10.

The other important witness in this case is P.W.-4 Madan

Chaudhary, son of one of the deceased Rohan Chaudhary. This

witness has stated that upon getting the information he went to the

place of occurrence along with his villagers, including the informant

Bhola Mandal and Indu (accused appellant). At the place of

occurrence they found Kanti Mandal, Makuni Mandal lying in the pool

of blood. They could not speak anything nor could make any gesture.

The dead body of his father was lying on the bullock cart. This

witness has clearly stated that no one informed them as to who had

assaulted the victims. He is also a witness to the inquest report of the

dead body of his father and he has identified his signature and the

signature of the witness Prabharkar Manjhi, which were marked

Exhibits. This witness was declared hostile at this point and in his

cross-examination by the prosecution he had denied the suggestion

to have given the statement before the police that Bhola Chaudhary

had informed him that Anil Chaudhary and Binod Chaudhary had

assaulted his father, Kanti and Makuni by Barchi and Tanga. He has

also denied the suggestion to have given the statement before the

police that Kanti Mandal had informed that Binod Mandal (sic.,

should be Chaudhary) and Anil Mandal (sic., should be Chaudhary)

had assaulted them. In his cross-examination by the defence this

witness has clarified that Indu Mandal, who is the accused, had also

gone to the place of occurrence along with them.

P.W.-2 Jagnath Chaudhary and P.W.-7 Naresh Chaudhary are

the other hostile witnesses who have stated that when they went to

the place of occurrence they saw Makuni Mandal and Kanti Mandal

injured in pool of blood and Rohan Chaudhary was dead. Makuni and

Kanti were not in a position to speak and no one informed them as to

who had assaulted them. Similarly P.W.-8 Govind Chaudhary is also a

hostile witness, who has deposed that both the injured were

unconscious and neither Bhola, nor Kanti informed them as to who

had assaulted them.

P.W.-11 is Dr. Ramanand Sah, who had conducted the post-

mortem examinations on the dead bodies of all the three deceased

on 18.6.1990. On the dead body of Makuni Mandal he found the

following ante-mortem injuries:-

i) Incised wound 4" x 1/2" x bone deep over the left parietal

region of the scalp.

ii) Incised wound 4" x ?" x bone deep over left side of

lambdoid region of the scalp.

iii) Incised wound 2" x ?" x bone beep over the mid of the

scalp.

On dissection there was fracture of the left parietal bone about

4" long, fracture of occipital bone about 3 ?" long and fracture

of occipital bone 2" long. On further dissection connecting

brains and maninges were found lacerated and blood clot was

present in the cranium.

He has stated that the death was caused due to shock and

hemorrhage as a result of injuries No. (i), (ii) and (iii), either

singularly or collectively, which were sufficient in ordinary course of

nature to cause the death. He has identified the post-mortem report

of Makuni Mandal to be in his pen and signature which was marked

Exhibit-2.

On the dead body of Kanti Mandal he had found following ante-

mortem injuries:-

i) Incised wound 2"x ?" x 1/8" over the temporal region of

scalp on left side,

ii) Incised would 4" x ?" x bone deep over the right side of the

scalp.

iii) Incised would 2" x ?" x ?" over the forehead.

On dissection there was fracture on the left temporal bone

about 2" long. Fracture of right parietal bone 4" long and

fracture of frontal bone 2" long. On further dissection there

was laceration of connecting brain and maninges and blood

clots were found present in the cranium.

iv) Lacerated wound 2" x 1" x bone deep over right side of face

with fracture of right mandible.

v) Lacerated wound 2" X ?" x ?" over right forearm in the

middle with fracture of radius and ulna.

He has stated that the death was caused due to assault and

hemorrhage as a result of injuries No. (i), (ii) and (iii), either

singularly or collectively, which were sufficient to cause death in

ordinary course of nature. He has identified the post-mortem report

of Kanti Mandal to be in his pen and signature which was marked

Exhibit-2/1.

On the dead body of Rohan Chaudhary he had found the following

ante-mortem injuries:-

i) Incised wound 4" x ?" x bone deep over the right temporal

region of the scalp. On dissection there was fracture of right

temporal bone 4" long. On further dissection connecting

brain and maninges were found lacerated and blood clots

were found present in the cranium.

ii) Diffused swelling over the front of chest. On dissection there

was fracture of 2nd to 4th ribs of right side and 2nd and 3rd ribs

of left side. On further dissection, connecting pleura and

lungs were found lacerated and blood clots were found in

the chest cavity.

He has stated that the death was due to shock and hemorrhage as

a result of injury No. (i) and (ii), either one of which was sufficient to

cause death in the ordinary course of nature. He has identified the

post-mortem report of Rohan Chaudhary to be in his pen and

signature which was marked Ext-2/2. There is nothing of much

importance in his cross-examination.

P.W.-12 is Bharat Lal Tiwari, who is the Investigating Officer

of the case. He has stated that at the police station at about 5:15

A.M. he got the news about the occurrence which he entered into the

station diary being entry No. 349 dated 18.06.90 which he has

proved and marked Exhibit-3. Thereafter, he went towards the place

of occurrence where he reached at 6:45 A.M. He has given the

description of the place of occurrence and has stated that he had

found blood stains there and the dead body of Rohan Chaudhary was

on a bullock cart. He collected the blood stained earth and prepared

the seizure list and he also prepared the inquest report of the dead

body of the deceased Rohan Chaudhary which he identified to be in

his pen and signature and also bearing the signatures of the

witnesses which was marked Exhibit-4. This witness has stated that

he was informed at the place of occurrence that two other injured

Makuni Mandal and Kanti Mandal were taken to hospital, as such he sent the dead body of Rohan Chaudhary to the police station through

police constable and followed the other injured. At about

8:30 A.M., when he reached near Motihara River he recorded the

fardbeyan of Bhola Mandal. He has identified the fardbeyan and the

formal F.I.R. to be in his pen and signature which were marked

Exhibit-5 and Exhibit-6 respectively. This witness has stated that

while he was recording the fardbeyan of Bhola Mandal, he sent the

injured Makuni Mandal to Jarmundi hospital on police jeep, but he

also died in the way. Thereafter they came to police station at 9:20

A.M., and prepared the inquest reports of the dead bodies of

Makuni Mandal and Kanti Mandal, which were marked Exhibits 4/1

and 4/2 respectively. This witness has stated about the investigations

made by him and his attention was also drawn towards the

statements made before him by the hostile witnesses. In his cross-

examination he has stated that it is not a fact that the witness

Dhaneshwar Layak had given any information at the police station.

He has also stated that he had not recorded the statement of

Madan Choudhary, who is the son of the deceased Rohan Choudhary,

and was a witness to the inquest report. He had also not recorded

the statement of any villager of Narhibaran village and he had not

recorded the fardbeyan of Sitaram Mandal. This witness has also

stated that Bhola Mandal had not stated in his fardbeyan that he had

seen Dilip Chaudhary, Anil Chaudhary, Suresh Chaudhary, Sarjug

Mamrik and other three to four persons assaulting Kanti and Makuni

by Lathi, Tanga and Barchi, rather he had stated that till he heard the

voice of the villagers of Narhibaran village, he was concealing himself

in the bushes and he came out only after hearing the voices of his

villagers. He had not stated in the fardbeyan that his son Kanti

Mandal had named Binod Chaudhary and Anil Chaudhary nor had he

stated that his son had informed that these accused persons had

assaulted them.

In their statements recorded under Section 313 of the

Cr.P.C. the accused persons have stated that they have been falsely

implicated in this case due to land disputes. The defence has also

proved the certified copies of the judgements and decrees relating to

the land dispute between the parties, as also the map of the village

which were marked Exhibits-A series, B-series and C, respectively.

Learned counsel for the appellants has submitted that both

these accused have been falsely implicated in this case due to

previous enmity for the land dispute between the parties. It is

submitted by learned counsel that the fardbeyan is not the original

fardbeyan in the case and the original F.I.R. has been concealed by

the prosecution for the reasons best known to it and the present

F.I.R. cannot be looked into. In support of this contention learned

counsel has submitted that the informant P.W.-10 Bhola Mandal has

admitted in his cross-examination that he had sent Dhaneshwar and

Bishwanath to the police station from the place of occurrence

informing them the names of the accused persons. Learned counsel

submitted that the information given by Dhaneshwar and Bishwanath

at the police station has been concealed by the prosecution in the

present case. In this connection learned counsel has also drawn our

attention towards the fact that P.W.-1 Sitaram Mandal has stated that

his statement was recorded at the police station which was read over

to him and he had put his signature on the same and this statement

has been concealed by the prosecution. It is further submitted that

P.W.-9 Prabhakar Manjhi who is a witness to the fardbeyan has stated

that the fardbeyan was recorded at the police station, whereas the

fardbeyan shows that it was recorded near Motihara River. Learned

counsel has further pointed out from the evidence of I.O., P.W.-12

Bharat Lal Tiwari that he has stated that while he was recording the

fardbeyan of the informant near Motihara River, he had sent Makuni

Mandal for his treatment to Jarmundi hospital. It is submitted by

learned counsel that if this statement is true, then the fardbeyan

could not have contained the entire statements thereafter that

Makuni Mandal died in the way and his dead body was brought to

police station etc., as there was no occasion for recording these

statements when at the time of recording the fardbeyan, Makuni

Mandal was only sent for his treatment. Learned counsel accordingly

submitted that it is a clear case of concealment of the original

fardbeyan and the present fardbeyan cannot be looked into.

Learned counsel further submitted that there is only one

witness, who has claimed to be the eye witness to the occurrence,

who is P.W.-10 Bhola Mandal, the informant, though he is not at all

the eye witness to the occurrence. In the fardbeyan there is

allegation against none of the named four accused persons and two

to three unknown persons, rather it is stated that the informant only

saw them and thereafter he concealed himself in the Palash forest

and he came out only when his villagers assembled there and the

darkness started clearing. Thus the informant, from the plain reading

of the F.I.R. is not the eye witness to the occurrence, nor has he

made any allegation therein, but when he was examined in the Court

as P.W.10, he made improvements in the fardbeyan due to admitted

previous enmity and stated that four named accused persons,

including these appellants, and two to three other unknown persons

variously armed by Lathi, Tangi and Barchi were assaulting Rohan

Chaudhary and both his sons. This is a clear improvement upon the

statement of the informant given before the police, which is also

admitted by P.W.-12 Bharat Lal Tiwari, the Investigating Officer of the

case, while his attention was drawn towards the statement of the

informant made before him as recorded in the fardbeyan. Learned

counsel submitted that in view of the admitted enmity between the

parties, the statement of the informant is absolutely unbelievable, in

as much as, had the informant seen the appellants assaulting his

own sons, he would have raised alarm but he admitted that he did

not raise any alarm and concealed himself. Learned counsel further

submitted that though the informant has taken names of four

accused persons in the fardbeyan as also in his evidence as P.W.-10,

but none of the witnesses examined on behalf of the prosecution

have stated that the informant informed them that the other two

accused persons namely Suresh Chaudhary and Sarju Mamrik had

also assaulted the three deceased. Learned counsel accordingly,

submitted that it is a clear case of making improvement by the

informant on his previous statement given before the police, due to

previous admitted enmity, and his evidence cannot be relied upon.

Learned counsel for the defence has also drawn our

attention towards the evidence of P.W.-11 Dr. Ramanand Sah, who

had conducted the post-mortem examination on all the three

deceased. In his evidence the doctor found on dissection of the dead

body of Kanti Mandal that there were fractures of the left temporal

bone, right parietal bone and of frontal bone. On further dissection

there was laceration of connecting brain and maninges and the blood

clots were found present in the cranium. Learned counsel submitted

that with this injury of brain the deceased Kanti Mandal, even while

he was alive, must have been completely unconscious and there was

no occasion for him to disclose anything about the occurrence.

Learned counsel accordingly, submitted that even that part of the

statement of some of the witnesses including P.W.-10 Bhola Mandal,

that Kanti Mandal, while being taken to hospital, gained

consciousness and informed that they were assaulted by both these

appellants, cannot just be believed and all these statements are only

improvements on the prosecution case by the informant P.W.-10

Bhola Mandal and the other interested witnesses.

Learned counsel for the defence has further submitted that

even P.W.-4 Madan Chaudhary, though he has been declared hostile,

but he is the son of one of the deceased and he has clearly stated

that neither of the injured were in a position to speak or to make any

gesture. He has also stated that when upon getting the information

this witness went to the place of occurrence, he was accompanied

even by the informant and one of the accused appellant, which

clearly falsifies the prosecution case. Learned counsel accordingly,

submitted that the prosecution has failed to bring home the charge

against the accused persons beyond all reasonable doubts and this is

a fit case in which the appellants ought to have been given at least

the benefit of doubt.

Learned counsel for the State on the other hand has

opposed the prayer and has submitted that the prosecution has been

able to bring home the charge against the appellants beyond all

reasonable doubts. It is submitted that it is a well settled principle of

law that the F.I.R. is not the encyclopedia of the entire occurrence. It

is submitted that the informant stated that he had seen the accused

persons at the place of occurrence when he reached there upon

hearing the alarm raised by his sons. This clearly shows that he is an

eye witness to the occurrence and in his evidence he has stated that

all the accused persons including these appellants were armed with

Lathi, Tangi and Barchi and they were assaulting his sons and Rohan

Chaudhary. It is submitted that the ocular evidence of P.W.-10

informant Bhola Mandal and the other witnesses who were informed

by Bhola Mandal about the occurrence, are fully corroborated by the

medical evidence of P.W.-11 Dr. Ramanand Sah, who found the ante-

mortem grievous injuries on all the dead bodies and has stated that

the injuries, either singularly or collectively, were sufficient to cause

death in the normal course of nature. Learned counsel submitted that

the prosecution has been able to bring home the charge against the

appellants beyond all reasonable doubts and there is no illegality in

the impugned Judgement of conviction and Order of sentence.

Having heard learned counsels for both the sides and upon

going through the record, we find force in the submission of the

learned counsel for the defence that the prosecution has not come up

with clean hands in this case. The F.I.R. clearly shows that the

informant is not the eye witness to the occurrence, rather the time of

occurrence was still dark and upon seeing the accused persons he

had concealed himself in the forest. This witness came out of the

forest only when his villagers assembled there and when the darkness

had started clearing and he came to the place of occurrence along

with the villagers when everything was over and the culprits had

already fled away. The fact remains that the informant has made

improvements over his statements made in the fardbeyan by alleging

that the named accused persons were variously armed by Lathi,

Barchi and Tanga, and he had seen them assaulting Rohan

Chaudhary, Kanti Mandal and Makuni Mandal. The fact remains that

though it is admitted that upon the alarm raised several persons of

Narhibaran village had assembled at the place of occurrence, but the

statement of none of them was recorded by the police and there is no

other eye witness to the occurrence. Though P.W.-1 Sitaram Mandal,

P.W.-3 Dhaneshwar Layak and P.W.-6 Upendra Chaudhary have

stated that Bhola Mandal informed them about the occurrence

naming these appellants, but they have not named the other two

named accused against whom also allegations have been made by

P.W.-10 Bhola Mandal in his evidence. We are of the considered view

that in absence of corroboration of the evidence of P.W.-10 Bhola

Mandal by any other eye witness, it is not safe to place reliance solely

on his evidence in view of the fact that he is a highly interested

witness, the long drawn enmity between the parties is admitted by

him, and he has made improvements over his earlier versions in the

fardbeyan.

This apart, we also find that the occurrence had taken place

on a road in a forest, while the deceased and the informant were

going to another village for bringing paddy straw. The time of

occurrence is very early morning, when in absence of any knowledge

to the accused persons, their presence at the place of occurrence

from before is absolutely doubtful. There is no evidence on the record

to show that the accused appellants had any knowledge that the

deceased were to go to bring paddy straw from another village and

they were to cross the forest in the early morning when it was still

dark. In that view of the matter, the presence of the accused

appellants at the place of occurrence was absolutely doubtful.

This apart, the evidence of P.W.-12 Bharat Lal Tiwari,

Investigating Officer, itself makes the recording of the fardbeyan

doubtful and it clearly indicates that some other version of the

fardbeyan has been concealed by the prosecution. The Investigating

Officer has clearly stated in his evidence that while he was recording

the fardbeyan of the informant near Motihara River, he had sent

injured Makuni Mandal on police jeep for treatment. Had that been so,

there was no occasion of recording in the fardbeyan that after the

death of Makuni Mandal the dead body was brought to the police

station and other such facts which are subsequent to sending Makuni

Mandal for treatment. This clearly indicates that the fardbeyan was

not recorded near Motihara river, rather it was recorded at the police

station. Indeed, P.W.-9 Prabhakar Manjhi, who is a witness to the

fardbeyan, has clearly stated that it was recorded at the police

station. In the FIR the informant had also stated that he had brought

the dead body of his son Kanti Mandal to the police station. But in his

cross-examination he has stated that he did not come to the police

station, rather he went there only in the evening of Monday.

Last but not the least, though the witnesses have stated

that Kanti Mandal had also informed that they were assaulted by both

these appellants also, their evidence cannot be believed in view of

the injury sustained by Kanti Mandal. The evidence of P.W.-11 Dr.

Ramanand Sah and the post-mortem report which was proved as

Exhibits 2/1 clearly shows that the brain and maninges of Kanti

Mandal were lacerated following the fractures in the frontal, temporal

and parietal bones and blood clots were found present in the cranium,

which clearly shows that after the assault the deceased must have

been unconscious until his death and there was no question of his

gaining consciousness with such brain injuries. Even the informant

P.W.-10 has stated that when he reached the place of occurrence

Kanti Mandal was unconscious. The evidence of P.W.-4 Madan

Choudhary clearly shows that neither of the injured was in a position

to speak or to make any gesture. He has clearly stated that the

informant as also one of the appellant Indu Mandal had gone to the

place of occurrence along with him. There is nothing on the record to

discredit his evidence, as the I.O., P.W.-12 Bharat Lal Tewari has

clearly stated in his cross-examination that he is a witness to the

inquest report of the dead body of his father, but his statement was

not recorded by him. Thus, there was no occasion for the prosecution

to declare this witness hostile. He is the son of one of the deceased

and his evidence is more reliable and also corroborated by the

medical evidence.

For the foregoing reasons, we are of the considered view

that the prosecution has not been able to bring home the charge

against the appellants beyond all reasonable doubts, and though it is

a case of triple murder, but in the facts and circumstances of this

case, the appellants are entitled at least to the benefit of doubt.

Accordingly, the impugned Judgement of conviction and

Order of sentence dated 30.04.1992 passed by the learned 2 nd

Additional Sessions Judge, Dumka, in S.C. No. 259 of 1991, are

hereby, set aside. The appellants are given the benefit of doubt and

they are acquitted of the charge. The appellants are on bail and they

are discharged from the liabilities of their respective bail bonds.

This appeal is accordingly, allowed. Let the Lower Court

Records be sent back forthwith along with the copy of this

Judgement.