Nayan Mandal And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

In S.C. No. 48/08, the appellants have been convicted and sentenced to RI for life and fine of Rs.5000/- each.

Nayan Mandal and Rupali Devi were named as accused by Ratan Mandal in his fardbeyan, which was recorded on 23.08.2007 at about 22:45 hrs.

On the basis of his fardbeyan, Rajmahal (Radhanagar) P.S. Case No. 172/07 has been lodged against them under section 302/34 of the Indian Penal

Code. During the trial, the prosecution has examined ten witnesses.

The case set up by the prosecution against the appellants is primarily based on circumstantial evidence: (i) Nayan Mandal was found lying by the

side of the deceased, (ii) illicit relationship between Nayan Mandal and Rupali Devi, and (iii) confessional statement of Nayan Mandal.

The appellants have set up a defence that the informant and his brothers have killed Adhin Mandal. They have examined four witnesses; the

appellants have examined themselves during the trial.

The law on the circumstantial evidence is by now well-settled. In a case founded on circumstantial evidence, the prosecution must first prove the

incriminating circumstances against the accused and then prove that the chain of the incriminating circumstances are so complete that these are

pointing towards guilt of the accused and that it was the accused and accused alone who has committed the crime. The law on the subject has been

lucidly explained by the Supreme Court in “Hanumant Govind Nargundkar Vs. State of M.P.†reported in AIR 1952 SC 34.3 In this case, the

Supreme Court has observed thus;

“It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt

is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude

every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human

probability the act must have been done by the accused.â€​

In his fardbeyan, the informant has stated that at about 8:00-8:30 p.m in the night he had dinner. At that time he heard sound of falling something in

the paddy field. When he came out from his house he saw one woman fleeing away and two persons quarrelling with each other. On his raising hulla,

his brothers, namely Tapan Mandal and Adhir Kumar Mandal also came there. In the torchlight he has seen one person lying on the earth but the

other person was dead; Adhin Mandal was the deceased. The informant has been examined in the court as PW-9. In his examination-in-chief, he had

stated that when he along with his brothers had gone to the place of occurrence they found one person dead and another person lying on the ground.

On seeing them coming there he got up and ran away, but he was apprehended by the informant and his brothers. He was Nayan Mandal, the

appellant. He has seen mud in the mouth, nose and ear of Adhin Mandal and blood was also oozing from his mouth. In the meantime, several villagers

had assembled there and the appellant has confessed his guilt before them.

PW-5 and PW-8, who are brothers of the informant, have also deposed in the court that they have apprehended the appellant and the appellant has

confessed that he has killed Adhin Mandal.

The other prosecution witnesses â€" Logan Mandal PW-2, Sukhdeo Karmkar, PW-3 and Rajkumar Mandal PW-4 â€" have come to the court to

depose that they have found that Nayan Mandal was apprehended by the informant and dead body of Adhin Mandal was lying on the ground. They

have also stated that at the place of occurrence several persons had assembled, however, they have admitted in their cross-examination that they have

not seen the appellant assaulting Adhin Mandal. In their examination-in-chief, PW-2, PW-3 and PW-4 have stated that they did not state before the

police that the appellant Nayan Mandal and Rupali Devi murdered Adhin Mandal and that Nayan Mandal has illicit relationship with Rupali Devi. The

informant has also stated in his examination-in-chief that before the police he has not spoken about illicit relationship of the appellants Nayan Mandal

and Rupali Devi and that when they were found in compromising position by Adhin Mandal they killed him.

From the aforesaid evidence of the prosecution witnesses, illicit relationship of Nayan Mandal and Rupali Devi is not proved. The prosecution has

also failed to prove that the informant and other prosecution witnesses have stated before the police that Adhin Mandal had found the appellants in

compromising position and that was the reason the appellants have killed him. Thus, motive for the occurrence has not been proved by the

prosecution.

The fardbeyan of the informant was taken by the Investigating Officer at about 22:45 hrs. but before that at about 10:00 p.m. the appellant Nayan

Mandal has given his confessional statement before the villagers. The confessional statement of Nayan Mandal, under which he has stated that when

Adhin Mandal caught him with Rupali Devi he started fleeing away, however, he fell in the water and thereafter Adhin Mandal caught him but in the

meantime Rupali Devi came there and both of them strangulated Adhin Mandal in the water, relates to the past events and, therefore, not admissible

in evidence.

Section 27 of the Evidence Act reads as under:

“27. How much of information received from accused may be proved. â€" Provided that, when any fact is deposed to as discovered in

consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information,

whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.â€​

In “Pulukuri Kottaya V. Emperor†reported in AIR 1947 PC 67, the Privy Council has observed that section 27 of the Evidence Act

incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to

be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in

consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so

much of the information as relates discovery to the fact thereby discovered may be proved. The statement of an accused that he has committed

murder is a past event and this part of the confessional statement of an accused is not admissible in evidence under section 27 of the Evidence Act.

Though statement before the police is not admissible in evidence and hit under section 25 and 26 of the Evidence Act, the part of the confessional

statement of an accused which leads to discovery of a new fact is admissible in evidence for the reason that recovery of the incriminating material

lends credence to his statement made in his confessional statement.

Dr. Alimuddin Ansari PW-1, who has conducted the post-mortem examination on 24.08.2007 at 2:45 p.m., has found thus:

“(i) Bleeding from mouth and nostrils, both eyes were closed but eye ball were enlarged;

(ii)Face dark blue & black and swollen face lividity pressing tongue swollen and mildly protruded and bruise & laceration present and

hand finger was clutched and neck swollen and irregularly distributed bruise and cresentic abrasion present over face and on the front

side of neck under chin upper part of chest;

(iii) Penis and scrotum swollen and few bruise and abrasion found which were irregular in shape and size.â€​

The father and mother of the appellant Nayan Mandal have been examined as DW-1 and DW-2. Rupali Devi has examined herself as DW-3 and

Nayan Mandal has examined himself as DW-4. During her cross-examination, DW-3 has stated that at the time of the incident she was in her

matrimonial house. It has also come in her cross-examination that her husband had drinks in the house of Ratan Mandal. She has stated that her

statement was recorded by the police and in her statement before the police she has stated that her husband left home with her brother Ratan Mandal

and her husband had drinks together with her brother. They had started a quarrel regarding landed property whereupon her brothers have killed her

husband. DW-4 has denied his relationship with Rupali Devi. He has stated that Ratan Mandal and his brothers have forcibly taken his signature on a

plain paper. During their cross-examination, DW-3 and DW-4 have remained unshaken. It is well-settled that during the trial with the same yardstick

evidence laid by the prosecution and the defence have to be tested. It is also elementary in a criminal trial that it is for the prosecution to prove its case

beyond all reasonable doubt and if an accused is able to show from the prosecution’s evidence or leading evidences by himself that his defence is

a probable one, the accused is entitled for the benefit of doubt.

On the basis of the evidences laid by the prosecution, it cannot be held that the prosecution has proved that the appellants have committed the

crime. On the contrary, the evidence laid by the appellants and admission of the prosecution witnesses; that they did not inform the police about

relationship of the appellants or that the appellants were found in a compromising position, create substantial doubt on complicity of the appellants in

the occurrence.

In the aforesaid state of evidence, we hold that the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code

against the appellants and, accordingly, the judgment of conviction of the appellants, namely, Nayan Mandal in Cr. Appl. (D.B.) No.1048 of 2009 and

Rupali Devi in Cr. Appl (D.B.) No. 320 of 2009 under section 302/34 of the Indian Penal Code dated 12.02.2009 and the order of sentence of RI for

life and fine of Rs.5000/- each under section 302/34 of the Indian Penal Code dated 17.02.2009, passed by the learned Additional Sessions Judge-I,

Rajmahal in S.C. No. 48/08 are set aside.

The appellants, named above, are acquitted of the criminal charge framed against them in S.C. No. 48/08.

The appellant, namely, Rupali Devi in Cr. Appl. (D.B.) No. 320 of 2009 is on bail and, therefore, she shall be discharged of liability of the bail-

bonds furnished by her and the appellant, namely, Nayan Mandal in Cr. Appl. (D.B.) No.1048 of 2009, who is in jail, shall be set free forthwith, if not

required in connection to any other case.

In the result, Cr. Appl. (D.B.) No.1048 of 2009 and Cr. Appl. (D.B.) No. 320 of 2009 are allowed.

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

Let a copy of the judgment be communicated to the trial court through FAX.