Bijay Mandal vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

The present appeal has been preferred for setting aside the judgment of conviction dated 16.06.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 19.06.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-III, Bhagalpur (hereinafter referred to as the ‘learned trial court’) in Session Trial No. 499 of 2019 arising out of Jagdishpur (Goradih) P.S. Case No. 559 of 2018. By the impugned judgment, the appellant has been convicted for the offences punishable under Sections 148 and 302/149 of the Indian Penal Code (in short ‘IPC’). By the impugned order, he has been sentenced to undergo two years’ rigorous imprisonment with a fine of Rs.5,000/- under Section 148 IPC and in default of payment of fine, he has to further undergo two months’ rigorous imprisonment. For the offence under Section 302/149 IPC, he has been sentenced to undergo life imprisonment with a fine of Rs.20,000/- and in default of payment of fine, he has to further undergo one year rigorous imprisonment. Both the sentences are to run concurrently.

The prosecution case is based on the fardbeyan of Punam Devi (PW-4) who is the wife of the deceased. In her fardbeyan recorded by S.I. Doman Paswan (not examined) at O.P. PMCH, Patna on 05.12.2018 at 11.00 AM, Camp Emergency Ward, the informant (PW-4) alleged that on 02.12.2018 at 11 O' Clock in the night the named accused persons including the appellant being armed with weapons, lathi, pistol and gun came at the door of the informant and asked her to open the door. She opened the door whereafter they asked for ‘Tuneshwar’. The informant claimed that she got awaken her husband and sent him to Bijay Mandal (the appellant). When her husband came outside his house, then all the named accused persons caught hold of him by his hand and started taking away him whereupon the informant raised hulla, then she was threatened. The informant claimed that her son Dilwar Kumar (PW-6) got awaken, he came and both of them stopped her husband from going ahead but he said that he will return soon. It is alleged that at some distance from the house near the shop of Bhagwat Mandal all the named accused persons started assaulting the husband of the informant by butt of pistol, gun and by the iron rod. Her husband was brutally assaulted and was injured. The informant alleged that after badly assaulting and injuring her husband, the accused persons thought that he had died, therefore, they left him and fled away. On hearing hulla neighbours from the area assembled there, then with the help of the co-villagers she took her husband to Bhagalpur Mayaganj hosptial on 03.12.2018 at 12.15 AM (night hours) where her husband was admitted. For treatment, he was referred to PMCH where he was admitted on 04.12.2018 at 2 O' Clock in the emergency ward but during his treatment her husband Tuntun Mandal @ Tuneshwar Mandal died on 05.12.2018 at 7.30 AM in the emergency ward.

On the basis of the fardbeyan of the informant (PW-4), Jagdishpur (Goradih) P.S. Case No. 559 of 2018 dated 14.12.2018 was registered under Sections 147, 148, 149, 341, 323, 302, 506 IPC against (1) Bijay Mandal (2) Munna Goswami, (3) Arun Mandal, (4) Sandeep Goswami, (5) Roshan Mandal and (6) Pramod Mandal.

After investigation, police submitted chargesheet bearing Chargesheet No. 74 of 2019 dated 15.06.2019 against Bijay Mandal (appellant herein) under Sections 147, 148, 149, 341, 323, 302, 504 and 506 IPC keeping investigation pending against other FIR named accused.

Learned Chief Judicial Magistrate, Bhagalpur vide order dated 22.07.2019 took cognizance of the offences punishable under Sections 147, 148, 149, 341, 323, 302, 504, 506 IPC against the appellant. Learned CJM vide order dated 02.08.2019, on finding that the offence under Section 302 is a triable offence, committed the records with respect to Bijay Mandal to the Court of Sessions. After commitment, Sessions Trial No. 499 of 2019 was registered.

Charges were read over in Hindi and explained to the appellant to which he pleaded not guilty and claimed to be tried. Accordingly, vide order dated 23.09.2019, charges were framed against the appellant under Sections 148, 149, 341, 302, 506 IPC.

In course of trial, the prosecution examined as many as eight witnesses and got exhibited several documentary evidences. The description of the prosecution witnesses and the list of documents exhibited on behalf of the prosecution are provided hereunder in tabular form:-

Learned trial court, after examining the oral as well as documentary evidences found that PW-4 and PW-6 are the eye witnesses and there is no contradiction in their evidences. Learned trial court also found that though the other witnesses, namely, PW-1, PW-2, PW-3 and PW-5 are not the eye witnesses but they supported the prosecution case as hearsay witnesses.

Learned trial court found from the post mortem report (Exhibit ‘E’) that the deceased had suffered multiple injuries on his head which could not be possible by bumping into the pole. Learned trial court found that the evidence of the informant that the deceased suffered multiple injuries gets corroboration from the post mortem report.

Learned trial court further found that the evidences of the defence witnesses are not credible and are in contradiction with the post mortem report. Learned trial court found that from the deposition of defence witnesses, it is clear that there was dispute between the deceased and Bijay Mandal and other villagers at the time of occurrence in the Nardi Programme.

Learned trial court after considering all the facts and circumstances of the case found that the prosecution has been able to prove its case beyond all reasonable doubts against the appellant. Accordingly, the appellant has been convicted for the offences punishable under Sections 148 and 302/149 IPC.

Learned counsel for the appellant submits that P.W.1, P.W.2, P.W.3 and P.W.5 are not eyewitnesses to the alleged occurrence and have admittedly claimed to have acquired knowledge of the incident through other persons. On the other hand, P.W.4 and P.W.6 have claimed themselves to be eyewitnesses to the alleged occurrence and have sought to support the prosecution case on the basis of their direct perception of the incident. Learned counsel has also submitted that the occurrence took place on 2/12/2018, fardbeyan was recorded on 5/12/2018 and F.I.R. was registered on 14/12/2018, this gives the impression that the first version of the manner of occurrence has been suppressed.

Learned counsel has specifically referred to the statements made by P.W.4 in paragraphs '5', '6' and '7' of her examination, wherein she described the alleged occurrence and the circumstances in which she claimed to have witnessed the incident. The learned counsel has also pointed out that P.W.-4 has stated in paragraph '4' that her statement was also taken in Mayaganj Hospital. The said statement has not been brought on record, this also shows suppression of the first version of occurrence.

Learned counsel for the appellant submits that the medical officer (P.W 8), in his deposition stated about only one injury, which was found on the head of the deceased. This medical finding is stated to be in material contradiction with the deposition of P.W.4, who deposed that the deceased had sustained injuries on his ribs, thigh and eye and further stated that there were as many as five wounds on his body.

Learned counsel for the appellant further referred to and narrated the deposition of P.W.6, who claimed himself to be an eyewitness to the alleged occurrence. Learned counsel for the appellant submits that P.W.6, in his deposition, stated that an earlier Fardbeyan had been recorded in connection with the same occurrence, wherein the statement of the deceased was also recorded. However, the said Fardbeyan, which is stated to contain the statement of the deceased, has not been brought on record or exhibited during the trial. The learned counsel submitted that this is another suppression by the prosecution.

Learned counsel also submits that the depositions of P.W.4 and P.W.6, both of whom claimed to be eyewitnesses to the alleged occurrence, are not consistent with each other and contain material contradictions on material aspects of the prosecution case. The statements of the prosecution witnesses do not fully corroborate each other and are also at variance with the medical evidence on record.

Learned Additional Public Prosecutor for the State has opposed the appeal by submitting that the testimonies of the prosecution witnesses are consistent throughout the trial. There are no material contradictions or discrepancies in the evidence of the prosecution witnesses. Learned Additional Prosecutor for the State submits that the medical examination report of the deceased corroborates the prosecution case. Therefore, the learned trial court has rightly convicted the appellant by carefully considering the evidence available on the record

We have heard learned counsel for the parties as also perused the trial court records.

The prosecution case is based on the fardbeyan of Punam Devi (PW-4) who is the wife of the deceased. In her fardbeyan recorded by S.I. Doman Paswan (not examined) at O.P. PMCH, Patna on 05.12.2018 at 11.00 AM, Camp Emergency Ward, the informant (PW-4) alleged that on 02.12.2018 at 11 O' Clock in the night the named accused persons including the appellant being armed with weapons, lathi, pistol and gun came at the door of the informant and asked her to open the door. She opened the door whereafter they asked for Tuneshwar. The informant claimed that she got awaken her husband and sent him to Bijay Mandal (the appellant). When her husband came outside his house, then all the named accused persons caught hold of him by his hand and started taking away him whereupon the informant raised hulla, then she was threatened. The informant claimed that her son Dilwar Kumar (PW-6) got awaken, he came and both of them stopped her husband from going ahead but he said that he will return soon. It is alleged that at some distance from the house near the shop of Bhagwat Mandal all the named accused persons started assaulting the husband of the informant by butt of pistol, gun and by the iron rod. Her husband was brutally assaulted and was injured. The informant alleged that after badly assaulting and injuring her husband, the accused persons thought that he had died, therefore, they left him and fled away. On hearing hulla neighbours from the area assembled there then with the help of the co-villagers she took her husband to Bhagalpur Mayaganj hosptial on 03.12.2018 at 12.15 AM (night hours) where her husband was admitted. For treatment, he was referred to PMCH where he was admitted on 04.12.2018 at 2 O' Clock in the emergency ward but during his treatment her husband Tuntun Mandal @ Tuneshwar Mandal died on 05.12.2018 at 7.30 AM in the emergency ward.

It appears on perusal of the records that after investigation, police submitted a final form/report bearing no.74 of 2019 dated 15.06.2019 for the offences under Sections 147, 148, 149, 341, 323, 302, 504 and 506 IPC. The chargesheet was filed only against this appellant. The prosecution sought to support it’s case with the help of six prosecution witnesses, namely, (i) the informant Punam Devi (ii) Umesh Mandal (iii) Adhik Mandal (iv) Bhagwat Mandal (v) Biso Mandal and (vi) the I.O., SI Manish Kumar but in course of trial the prosecution examined as many as eight witnesses. One of the witnesses, who claimed himself an eye witness of the occurrence, is Dilwar Mandal (PW-6) but he was not shown as a charge-sheet witness. The witness, who was not named in the charge-sheet, is Dr. Dharmendra Kumar (PW-8).

It further appears that after taking cognizance of the offfences, the learned Magistrate proceeded against the appellant. After completion of formalities to supply the police papers, on finding that the case is triable by court of Sessions, the records were committed to the court of Sessions where charges were explained to the appellant. The appellant denied the charges and claimed to be tried. Accordingly, charges were framed under Sections 302, 506, 341 and 148 IPC.

In course of trial, Bhagwat Mandal (PW-1), Vishwanath Mandal (PW-2) and Adhik Lal Mandal (PW-3) have given a completely different narration of the manner of occurrence and the place of occurrence. PW-1 has stated that he heard in the morning that in the dance party there was a quarrel, the people were pulling up the persons in the dance team and at that time there was a quarrel between Bijay and Tuntun, this is what he had heard, thereafter physical assault had taken place between Bijay and Tuntun in which Tuntun had suffered injuries but he did not know that how many injuries were caused to Tuntun. This witness has stated that the occurrence took place at a distance of about 100 meter from his shop. He has further stated that police had enquired from him and he had said that he had not seen anything. In paragraph '7' of his cross-examination, this witness has stated that who did what with Tuneshwar Mandal is not known to him. He has stated that the dance party was going on at a distance of about 200 ft. from his shop. It is further noticed that even as PW-1 has not supported the prosecution case, he has not been declared hostile.

Vishwanath Mandal (PW-2) has stated that he was not at the place of occurrence, later on he came to know about the occurrence from the villagers. He came to know that Tuntun Mandal @ Tuneshwar Mandal was taking liquor, later on he died. He was taken to Mayaganj hospital. In paragraph '2' of his deposition, he has stated that police had not enquired from him. In his cross-examination, this witness has again stated that he was acquainted with Tuntun Mandal and on the next day he had heard that Tuntun Mandal had consumed liquor and had fallen down, he had also heard that Tuntun Mandal was killed. He had later on heard that Basuki Goswami had fired at Tuntun Mandal. He denied the suggestion of the court in paragraph '9' of his deposition that he had stated in his statement that Bijay Mandal had assaulted Tuntun Mandal by lathi. This Court finds that the evidence of PW-2 has no evidentiary value. In fact by not declaring him hostile, the prosecution has taken the risk and it will go against the prosecution.

Adhik Lal Mandal (PW-3) is the another prosecution witness who has not supported the prosecution case. He has stated that after ten days of the occurrence he had heard that Tunna @ Tuneshwar Mandal was in drunken condition and he had fallen down in a ditch then he had gone on the stage from where he was made to get down and thereafter hulla had taken place. This witness has stated that Tunna had caught hold of the dancer. He has further stated that Tunna was assaulted, a quarrel had taken place between Tunna and Bijay but then this witness has stated that in what manner Tunna Mandal was killed is not known to him. In paragraph '4', this witness has stated that his statement was not recorded in police.

This Court finds that PW-1, PW-2 and PW-3 have gone against the prosecution case but they have not been declared hostile. At this stage, this Court would refer the judgment of the Hon'ble Supreme Court in the case of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) reported in (2005) 5 SCC 258 wherein the Hon'ble Supreme Court has considered the effect of not declaring a prosecution witness hostile when he has not supported the prosecution case or had gone against the prosecution case. The relevant paragraphs ‘30’ and ‘31’ are being quoted hereunder for a ready reference:-

This brings us to the testimony of the informant (PW-4) who is the wife of the deceased. In her examination-in-chief, she has supported the prosecution case as regards the date, time and manner of occurrence but she has stated that Bijay Mandal had assaulted Tuneshwar Mandal by the butt of the gun on his head, thereafter Roshan assaulted him by a khanti in his rib, Arun assaulted by hand and fist blow, Pramod assaulted by lathi and Sandeep assaulted by lathi, then they left Tuneshwar thinking that he had died. At this stage, when the evidence of the doctor (PW-8) is looked into, it is found that during the postmortem conducted on 05.12.2018 at PMCH, the doctor (PW-8) had found one stitch wound of 1cm length over left frontal area 15 cm above left ear, 5 cm above left eyebrow. The doctor noticed that there was underneath scalp haematoma all over the scalp and there was a communicated fracture of size 22 cm x 15 cm over both frontal or parietal and both temporal bone. In his examination-in-chief, the doctor (PW-8) has opined that the cause of death was creniocerebral damage caused by hard blunt force impact. In the cross-examination, PW-8 has stated that he had found only one injury over the dead body of the deceased which was on head. He has agreed with a suggestion that if a person fall from high altitude on hard surface, he may die. PW-8 has reiterated that nature of injury is hard blunt force impact. He had not found any other puncture over whole body. It is evident from the postmortem report (Exhibit-E/PW-8) and the testimony of the doctor (PW-8) that the deceased Tuntun Mandal had suffered only one injury over his head. Thus, the testimony of PW-4 that he was assaulted by so many persons by butt of the gun, khanti, hand and fist blow and then lathi blow are not getting corroborated from the postmortem report. The manner of occurrence, as stated by PW-4 is not being corroborated by any other prosecution witness, therefore, it becomes highly doubtful. In fact, it goes a long way to doubt the claim of PW-4 that she was an eye witness of the occurrence and the deceased was taken away from his house.

While analyzing the testimony of PW-4, this Court finds that the informant has stated in paragraph '4' of her examination-in-chief that her statement was recorded by police in Mayaganj hospital. She has further stated during her cross-examination that she was not aware as to what were written in the paper at the top, at the bottom or in the body, on the basis of which the case has been lodged. She had neither seen the paper nor had read the same. She has further stated in her cross-examination in paragraph '17' that she had given a written information in Kotwali police station. She had given the name of the police stations which would fall in between her village Mohanpur and Tilkamanjhi. Nathnagar, Madhusudanpur, Tatrapur, Kotwali then Tilkamanjhi and Barari police station would fall in between. She had submitted her application in the Kotwali police station.

This Court finds that neither the written application submitted in Kotwali police station nor her statement recorded in Mayaganj hospital by police have been brought on record by the prosecution. Thus, the prosecution would be guilty of suppressing the first version of the prosecution case which immediately came from the mouth of the informant (PW-4). This would render the fardbeyan recorded on 05.12.2018 at O.P. PMCH which is the basis of the present FIR, a blemish document and not only the delay in lodging the FIR but the suppression of the first version of the case would prove fatal to the prosecution. The credibility of the informant (PW-4) as an eye witness is also at stake because her own prosecution witnesses whom we have discussed hereinabove are not supporting her version with regard to the manner of the occurrence and place of the occurrence. While the informant says that the injuries were at five places, the doctor (PW-8) has stated that he found only one injury.

We have further found that Dilwar Kumar (PW-6), who is said to be an eye witness of the occurrence, was not made a charge-sheet witness but he has been examined in course of trial. In his examination-in-chief, this witness has stated that Bijay Mandal pulled out his uncle after the door was opened. There were several persons with him but this witness has not named those persons. PW-6 has stated that his uncle was assaulted near the house itself by a rod, lathi and butt of the gun whereas PW-4 has stated that her husband was assaulted near the shop of Bhagwat Mandal (PW-1) at a distance of 100 meter. This witness has stated that when he and his aunt Punam Devi went behind the accused then they asked them to turn around and go away otherwise they would be killed, whereafter this witness claimed to have raised hulla. He has stated that the accused persons left his uncle, thinking that he had died. It is evident that in his examination-in-chief, he has not named as to who had assaulted his uncle. A general and omnibus kind of allegation has been made that his uncle was assaulted by the butt of the gun, lathi and iron rod. We, therefore, find that PW-6 is not claiming himself an eye witness of the actual occurrence. In his cross-examination, he has stated that he had come to depose for the first time in the court. His statement was recorded at Patna and Mayaganj hospital earlier. This witness was suggested by the defence that his uncle Tuneshwar Mandal was consuming liquor and he had indulged in quarrel after taking liquor and fell down in a Nala whereafter he died. This witness denied the suggestion but PW-1, PW-2 and PW-3 tend to create doubt over the prosecution case.

This Court finds that the I.O. (PW-7) has deposed in this case but he has stated in paragraph '20' that prior to death of the deceased he had not taken his statement. This statement of the I.O. is in conflict with the statement of PW-6 who said that the statement of the deceased was recorded. He has stated that the case was lodged against six persons but he had submitted charge-sheet only against Bijay Mandal. He had not made any investigation regarding the criminal antecedent of the deceased.

On a complete reading of the entire evidence, we find that in this case the prosecution witnesses are not corroborating each other, they are at material variance and as recorded hereinabove some of the prosecution witnesses have come out with a completely different story. The delay in lodging of the FIR and suppression of the first version of the prosecution case has created a dent in the prosecution story.

We, therefore, find that the learned trial court has not appreciated the entire evidence on the record in right perspective and has recorded the conviction of the appellant on the basis of the testimonies which are not that of the wholly reliable witnesses.

In result, we set aside the impugned judgment and order of the learned trial court. The appellant is acquitted of the charges giving him benefit of doubt. He shall be released forthwith, if not wanted in any other case.

This appeal is allowed.

Let a copy of this judgment together with the trial court records be sent down to the learned trial court.