Chhatu Mandal And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

The informant, namely, Dilip Kumar Acharya has named five persons as assailants in Arki P.S. Case No.1 of 1987, which was registered under sections 147, 148, 149 and 302 of the Indian Penal Code and section 27 of the Arms Act on the basis of his fardbeyan recorded on 14.01.1987 at 10.30 a.m.

Two accused persons, namely, Ganesh Mandal and Basant Mandal were killed before the trial concluded.

The appellants, namely, Chhatu Mandal, Rakhal Manjhi and Duryodhan Mandal have been convicted under section 147 IPC and section 302/149 IPC. They have been sentenced to undergo R.I for life under section 302/149 IPC and R.I for two years under section 147 IPC.

By an order dated 01.04.2002, the appellants have been granted bail by this Court.

In his fardbeyan, the informant has stated that it was Makar Sankranti and he was going to take holy dip in the Rupai Sotia river in the morning of 14.01.1987 with his uncle Ghasi Acharya and co-villegers, namely, Pawan Khandit and Rameshwar Manjhi. He says that at that time several other persons were also going to take bath in the Rupai Sotia river. When they reached near Bustom Pokhar, the accused persons, namely, Ganesh Mandal, Duryodhan Mandal, Basant Mandal, Chhatu Mandal and Rakhal Manjhi, variously armed, came there and started abusing them. The informant claims that Ganesh Mandal was carrying a gun and Basant Mandal was holding a sword, whereas the other three accused persons, who are the appellants now, were holding Lathi. Ganesh Mandal fired a shot with gun which hit Ghasi Acharya in his stomach and he died on the spot. The informant has claimed that splinters of the shot fired from the gun caused injuries to him, Pawan Khandit and Rameshwar Manjhi. According to the informant, the reason why the accused persons have assaulted them was an altercation between the sons of the deceased and the accused persons the previous evening. The informant has stated that a belt carrying 12 live-cartridges was snatched from Ganesh Mandal when he was fleeing away from the place of occurrence.

During the trial, the prosecution has examined 12 witnesses; the informant is P.W.6.

The prosecution has projected Pawan Khandit-P.W.1, Uma Kant Mandal-P.W.3, Randeep Kumar Acharya-P.W.5, the informant-P.W.6 and Rameshwar Acharya-P.W.12 as eye-witnesses.

In the court, the informant has reiterated the story as narrated by him in his fardbeyan. He says that at the time when he alongwith his uncle and co-villagers were going to take bath there were several other persons present there. However, many of them have not been examined during the trial. When a charge-sheet was submitted, the police has cited as many as 25 persons, however, out of them 13 have not been examined during the trial. P.W.1-Pawan Khandit, when he was examined in the court, has made specific allegation of firing gun-shot by Ganesh Mandal. He says that Dilip Kumar Acharya and Rameshwar Manjhi received splinters injuries. Initially, he made allegations against all five accused persons, however, in his cross-examination he admits that before the police he has not named Basant Mandal, Duryodhan Mandal and Chhatu Mandal as members of the accused party.

Mr. Hemant Kumar Shikarwar, the learned counsel for the appellants submits that the prosecution by withholding large number of witnesses has suppressed true version of the occurrence.

The informant says that when he was going to take bath Pawan Khandit and Rameshwar Manjhi were with him, however, during the trial Rameshwar Manjhi has not been examined by the prosecution. One of the eye-witnesses, namely, Surendra Nath Manjhi-P.W.11 has turned hostile. There were as many as three other prosecution witnesses - P.W.7, P.W.8 and P.W.9 - who have also been declared hostile at the instance of the prosecution and P.W.10 has also not supported the prosecution. He has stated that the police had seized the dead body but no paper was prepared. During the trial, the inquest report was not produced and even the post-mortem examination report has not been proved; the doctor who has conducted the post-mortem examination over the dead body of the deceased Ghasi Acharya has not been examined by the prosecution.

Besides the above, the inconsistencies in the evidence of the prosecution witnesses; all of them have not spoken consistently about participation of the appellants, raise serious doubts on the complicity of the appellants in the crime.

Section 141 of the Indian Penal Code provides that an assembly of five or more persons shall be designated as "unlawful assembly", if the common object of the persons composing that assembly is to do an act falling under one of the five clauses under section 141 IPC. The appellants, namely, Chhatu Mandal, Rakhal Manjhi and Duryodhan Mandal have been convicted with the aid of section 149 IPC. For constituting an offence under Section 149 IPC, it is not necessary that every member of the unlawful assembly must have committed some act, however, to rope in any person with the aid of section 149 IPC the prosecution must prove that the offending act was committed in furtherance of the common object of all or that the members of the assembly knew that it is likely to be committed in prosecution of that object.

The manner of occurrence as portrayed by the prosecution witnesses does not disclose that the appellants shared any common object with Ganesh Mandal to cause death of Ghasi Acharya. In his fardbeyan, the informant has stated that the accused persons came there and started an altercation with them. No offending expression or aggression at the initial stage has been imputed to the present appellants, when the altercation took place. From the prosecution's evidence, it is apparent that the accused Ganesh Mandal has suddenly fired shot from a gun which hit Ghasi Acharya in his stomach. From the narration of the occurrence, it is difficult to infer that the appellants had knowledge that the death of Ghasi Acharya was caused in furtherance of common object of all. In fact, the prosecution has failed to establish that the appellants had knowledge that Ganesh Mandal was carrying a gun.

Mrs. Vandana Bharti, the learned Special Public Prosecutor, however, submits that since a belt carrying 12 live-cartridges has been snatched from the accused Ganesh Mandal, the appellants must be imputed with the knowledge that he was carrying a gun.

We are not impressed with this argument. The crime weapon was not seized by the investigating officer and the officer, who has carried investigation, has not been examined during the trial. It was a winter morning, when the informant party was going to take bath in Rupai Sotia river. In such weather if the accused Ganesh Mandal had concealed a weapon it would not have been known to the appellants.

In the above facts, we hold that the prosecution has failed to establish that the appellants shared common object with Ganesh Mandal to cause death of Ghasi Acharya and, accordingly, conviction of the appellants under section 147 IPC and section 302/149 IPC, both, are set-aside.

However, the prosecution witnesses have proved presence of the appellants at the place of occurrence and at the time of occurrence. Some of the prosecution witnesses have deposed in the court that the appellants were holding Lathi, however, injury on any of the prosecution witnesses has not been proved during the trial. Therefore, the appellants are convicted under section 323 IPC and they are sentenced to undergo R.I for six months.

Mrs. Vandana Bharti, the learned Special Public Prosecutor states that the appellants have remained in custody for more than 8 months. Accordingly, the appellants, who are on bail, are discharged of liability of the bail-bonds furnished by them.

In the result, Criminal Appeal (D.B.) No.362 of 2001 is partly allowed.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let the lower-court records be transmitted to the court concerned, forthwith.