Jharkhand High Court
Rohit Mandal vs The State Of Jharkhand on 1 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 299 of 2018
With
Criminal Appeal (DB) No. 267 of 2018
With
Criminal Appeal (DB) No. 282 of 2018
(Against the judgment of conviction dated 30th January 2018 and the order of
sentence dated 31st January 2018 passed by the learned 1 st Additional Sessions
Judge-cum- Special Judge, Deoghar in Special Case No. 08 of 2012)
--------
In Criminal Appeal (DB) No.299 of 2018:
Rohit Mandal, s/o Sitaram Mandal, r/o village-Misarna, PS-Madhupur,
District-Deoghar ...... Appellant
Versus
The State of Jharkhand ... Respondent
In Criminal Appeal (DB) No. 267 of 2018:
Gajendra Mandal, s/o Mantu Mandal, r/o village-Kadai, PS-Jasidih, District-
Deoghar ...... Appellant
Versus
1. The State of Jharkhand
2. Parmeshwar Das, s/o Lalji Das, r/o village-Khijuriya, PO & PS-Kunda,
District-Deoghar ...Respondents
In Criminal Appeal (DB) No. 282 of 2018:
Mantu Mandal, s/o late Bahadur Mandal, r/o village-Kadai, PS-Jasidih,
District-Deoghar ...... Appellant
Versus
1. The State of Jharkhand
2. Parmeshwar Das, s/o Lalji Das, r/o village-Khijuriya, PO & PS-Kunda,
District-Deoghar ...Respondents
(Heard in the Court on 26th October 2021 & 01st November 2021)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mr. A.K. Kashyap, Sr. Advocate
(in all cases)
For the State : Mr. Saket Kumar, APP
[in Cr. Appeal (DB) No.299 of 2018]
Mrs. Nehala Sharmin, APP
[in Cr. Appeal (DB) No.267 of 2018]
Mr. Azeemuddin, APP
[in Cr. Appeal (DB) No.282 of 2018]
2 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
JUDGMENT
1st November 2021
Per, Shree Chandrashekhar, J.
In Special Case No. 08 of 2012, the learned 1 st Additional
Sessions Judge-cum-Special Judge, Deoghar convicted and sentenced
Mantu Mandal, Rohit Mandal and Gajendra Mandal in the following
manners:
Accused Conviction Sentence
Mantu (i) Section 364 of the Indian Penal Code RI for 10 years and a fine of
Mandal Rs. 5,000/-
(ii) Section 302 of the Indian Penal Code RI for life and a fine of
Rs. 5,000/-
(iii) Section 201 of the Indian Penal Code RI for 3 years and a fine of
Rs. 1,000/-
(iv) Section 120-B of the Indian Penal RI for 7 years
Code
(v) Section 3 (2) (v) of the Scheduled RI for life and a fine of
Castes and Scheduled Tribes (Prevention Rs. 5,000/-
of Atrocities) Act, 1989
Rohit Mandal (i) Section 364 of the Indian Penal Code RI for 10 years and a fine of
Rs. 5,000/-
(ii) Section 302 of the Indian Penal Code RI for life and a fine of
Rs. 5,000/-
(iii) Section 201 of the Indian Penal Code RI for 3 years and a fine of
Rs. 1,000/-
(iv) Section 120-B of the Indian Penal RI for 7 years
Code
(v) Section 3 (2) (v) of the Scheduled RI for life and fine of
Castes and Scheduled Tribes (Prevention Rs. 5,000/-
of Atrocities) Act, 1989
Gajendra (i) Section 364 of the Indian Penal Code RI for 10 years and a fine of
Mandal Rs. 5,000/-
(ii) Section 302 of the Indian Penal Code RI for life and a fine of
Rs. 5,000/-
(iii) Section 201 of the Indian Penal Code RI for 3 years and a fine of
Rs. 1,000/-
(iv) Section 120-B of the Indian Penal RI for 7 years
Code
(v) Section 3 (2) (v) of the Scheduled RI for life and fine of
Castes and Scheduled Tribes (Prevention Rs. 5,000/-
of Atrocities) Act, 1989
2. Except the sentence under section 120-B of the Indian Penal
Code, all other sentences are awarded with default stipulations. The
3 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
learned trial Judge has further ordered that all the sentences shall run
concurrently.
3. Madhupur PS Case No.134 of 2011 was registered on
11th September 2011 against Mantu Mandal, Gajendra Mandal,
Ghanshyam Mandal, Rohit Mandal and Suren Mandal for the offence
under sections 364, 302, 201 and 120-B of the Indian Penal Code and
section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989, for abduction and murder of Krishna Kumar Das.
On 11th September 2011, Parmeshwar Das gave his statement before the
officer-in-charge of Madhupur PS stating that his nephew Krishna Kumar
Das developed friendly relations with Lalita Kumari. They fled away to
Kolkata on 07th September 2011 and got married there. His nephew gave
information on 09th September 2011 about the marriage and then he
alongwith Mantu Mandal proceeded for Kolkata early morning around
05:00 AM. Gajendra Mandal and Rohit Mandal also arrived there. It was
agreed by all that a final decision would be taken once they reach home
and accordingly they boarded train for Jasidih. But the accused forced
them to get down at Madhupur where Ghanshyam Mandal and Suren
Mandal were waiting on the road outside railway station. Mantu Mandal
and Rohit Mandal forced Krishna Kumar Das to sit on the motorcycle and
took him away. The informant gave information to his cousin Basudeo
Das who was posted at the residence of Dy. Superintendent of Police,
Madhupur. He gave information at GRP police station and started
searching for his nephew but could not find him. On 11 th September 2011,
the dead body of Krishna Kumar Das was found lying on the railway line
between Madhupur and Jasidih and then his fardbeyan was recorded by
the police. He expressed his apprehension that the accused persons
committed murder of his nephew and put his dead body over the railway
line to give colour of suicide by him.
4. A charge-sheet was laid against the above-named accused and
on 29th November 2011 cognizance of the aforesaid offences was taken
by the learned Sub-divisional Judicial Magistrate, Madhupur. The records
of Ghanshyam Mandal and Suren Mandal were separated as they were
4 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
declared juvenile. A common charge under sections 364, 302, 201 and
120-B of the Indian Penal Code and section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
framed against Mantu Mandal, Gajendra Mandal and Rohit Mandal vide
order dated 25th February 2014, which they denied and claimed trial.
5. Sixteen witnesses were examined by the prosecution to prove
the charges against the accused. The accused were examined under
section 313 of the Code of Criminal Procedure on 11 th July 2017, but did
not offer any explanation to the incriminating materials appearing against
them and simply made bald denials.
6. The stand of the appellants is that Krishna Kumar Das
committed suicide because he had sexually ravished Lalita Kumari with
two friends but later on felt regret, remorse and guilt. The defence set up
by the appellants is discussed by the learned trial Judge in the following
manners:
"21. The defence has contradicted the prosecution case by
stating that it is not true that the boy and the girl performed
love marriage at Kolkata rather the girl was a minor one and
was kidnapped by Krishna Kumar Das and two other persons
and was taken to Kolkata where she was rapped. When this
fact came to knowledge of the father and uncle of the boy,
then the boy was scolded and abused by his father and uncle,
consequently the boy committed suicide by coming under the
train. The girl had instituted a case of kidnapping and rape
against the member of the informant side. In support of their
contention the defence has filed the copy of the complaint of
P.C.R. Case No. 595/2011 and the formal FIR of Jasidih P.S.
Case No. 191/2011 dated 18.11.2011 and copy of Order
passed by J.J.Board in G.R. Case No. 356/11/Inquiry No.
12/16. From perusal of the record it appears that in order to
prove the love marriage between the boy and the girl the
prosecution produced pair photographs of both the boy and
the girl in which the photo of the girl shows that she had put
vermilion on her head, indicating her marriage with the boy.
The prosecution has also filed and exhibited two tickets which
was from Kolkata to Jasidih. Both these two material exhibits
strengthen the case of the prosecution on the fact that the boy
and the girl willingly performed marriage and the tickets also
strengthen the statement of the informant that while returning
from Kolkata, they had purchased train tickets separately.
These two tickets was of the informant and his nephew. On
the other hand in order to prove the case of the defence that
the girl was kidnapped and rapped by the boy and two other
persons for which the girl had instituted a P.C.R. Case, the
defence has filed the certified copy of P.C.R. Case No.
595/2011 and the formal FIR of Jasidih P.S. Case No.
191/2011 dated 18.11.2011 and copy of Order passed by J.J.
Board in G.R. Case No. 356/11/Inquiry No. 12/16. From the
5 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
analysis of the evidences on the record, it transpires that
already on 11.09.2011 the dead body of Krishna Kumar Das
was recovered on the basis of which the present police case
was instituted in Madhupur P.S on the same day. Thus the
present case was instituted prior to the institution of the case
by the girl Lalita Kumari against the accused persons, as
well as the deceased. The documentary evidences of the
defence do not inspire confidence that the defence is stating
the truth, particularly when the death of Krishna Kumar Das
had occurred much prior to the institution of the case by the
defence and specially when the doctor had found anti mortem
grievous injuries on the dead body of Krishna Kumar Das
which was one of the cause of the death of Krishna Kumar
Das."
7. The learned trial Judge held that PW5, who is an
eyewitness, is a reliable and trustworthy witness and his evidence is
corroborated by PW7. The learned trial Judge has further held that there
are overwhelming evidence to establish that the accused abducted and
committed murder of Krishna Kumar Das in furtherance of criminal
conspiracy.
8. The judgment in Special Case No. 08 of 2012 is assailed
interalia on the following grounds: (i) informant is not a truthful witness
(ii) there are contradictions in the evidence of witnesses as regards
manner of abduction (iii) who committed murder of Krishna Kumar Das
is not proved (iv) time gap between abduction and death of Krishna
Kumar Das creates doubt on the prosecution case, and (v) delay in
lodging a report with the police is not explained and after deliberations
the appellants are falsely implicated in the case.
9. Sri A.K. Kashyap, the learned senior counsel for the
appellants has placed reliance on the judgments in "Sharad Birdhichand
Sarda v. State of Maharashtra" (1984) 4 SCC 116, "State of Goa v.
Sanjay Thakran" (2007) 3 SCC 755, "Murlidhar v. State of Rajasthan"
(2005) 11 SCC 133 and "Khuman Singh v. State of M.P." 2019 SCC
OnLine SC 1104.
10. Sri A.K. Kashyap, the learned senior counsel for the
appellants further submits that Mantu Mandal and Rohit Mandal can at
best be convicted under section 364 of the Indian Penal Code for
abduction of Krishna Kumar Das and not for murder and as a
consequence their conviction under section 3(2)(v) of the Scheduled
6 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
therefore cannot sustain. To fortify his contention, the learned senior
counsel has referred to the judgment in "Khuman Singh".
11. This is a case of honour killing in which a young boy of
22 years was abducted and killed in the night of 10 th September 2011. The
prosecution case is that at around 01:00 AM in the intervening night of
9th/10th September 2011 Mantu Mandal, Rohit Mandal, Gajendra Mandal
and Parmeshwar Das forced Krishna Kumar Das to get down at
Madhupur railway station and abducted him with the help of
Ghanshayam Mandal and Suren Mandal who were waiting outside the
railway station - Parmeshwar Das is the only eyewitness.
12. PW2, PW4, PW5, PW7 and PW10 are uncles of the
deceased. PW3 is cousin of the deceased, PW6 is grandfather of the
deceased and PW12 is father of the deceased.
13. PW1 who is a co-villager deposed in the Court that Mantu
Mandal was saying in the village that he would teach a lesson to Krishna
Kumar Das who had eloped with his daughter. In the cross-examination,
he stated that on 08th September 2011 Mantu Mandal said that Krishna
Kumar Das had fled away with his daughter.
14. PW2 gave his evidence in the Court that PW5 told him about
the occurrence. He admitted that he did not accompany others to Kolkata
for bringing back Krishna Kumar Das and Lalita Kumari. He further
admitted that relationship between the families of Krishna Kumar Das
and Mantu Mandal was cordial, they were on visiting terms and there was
no quarrel between them in the last two years.
15. PW3 has admitted in the Court that he was informed by PW5
about the occurrence and he did not accompany others to Kolkata or
Madhupur and had also not gone to the police station.
16. PW4 admits in the cross-examination that no incident
occurred in his presence and that PW5 informed him about abduction of
Krishna Kumar Das at around 11:00 AM on 10 th September 2011. He has
further said that the police did not make any inquiry from him and for the
first time he was tendering evidence in the case.
7 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
17. PW6 has also admitted in the Court that Mantu Mandal
informed him that Lalita Kumari and Krishna Kumar Das had fled away
to Kolkata and that he was going to Kolkata to bring them back home.
18. PW7 who was deputed at the residence of Superintendent of
Police, Madhupur went to Madhupur police station with PW5. He has
stated in the Court that the officer-in-charge of Madhupur PS assured
them that the patrolling team was informed about the incident and a
search for Krishna Kumar Das was on. Next day morning, he read in the
newspaper that a dead body was lying near Nawadih railway line. He
identified the dead body of Krishna Kumar Das which was cut in two
pieces. PW8 has tendered similar evidence and testified in the Court that
PW5 told him about the incident around 02:30 AM in the night of
10th September 2011 and he went in search of Krishna Kumar Das with
PW5 and PW7.
19. PW9 is a seizure witness who affirmed in the Court that two
photographs and train tickets for journey from Kolkata to Jasidih were
given to the officer-in-charge by PW5.
20. PW10 has also stated about Krishna Kumar Das eloping with
Lalita Kumari and visit of PW5 with Mantu Mandal to Kolkata after
Krishna Kumar Das called to inform them about his marriage with Lalita
Kumari.
21. PW12 is father of the deceased. On 11 th September 2011,
PW7 informed him that a dead body was lying in village Gadiya. He went
there and saw that his son had suffered injuries on head and face - the
body was in two pieces. His brother Parmeshwar Das gave statement to
Akshay Kumar Ram the officer-in-charge of Madhupur PS and on the
basis of his statement the case was registered. In the cross-examination,
he admitted that it was his brother who told him about the incident of
abduction of his son from Madhupur station. He denied the suggestion
that his son died in an accident after falling from a train and that they
falsely implicated the accused.
22. The Investigating Officer has been examined as PW13. He
stated that the fardbeyan of Parmeshwar Das, the formal First Information
8 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
Report and the Inquest Report of Krishna Kumar Das are in the handwriting
and under the signature of Akshay Kumar Ram who was the officer-in-
charge of Madhupur PS. He deposed in the Court that PW5 gave him two
photographs of Krishna Kumar Das and Lalita Kumari and two railway
tickets in presence of PW9 and PW10. In the cross-examination, he
admitted that he did not enquire about the motorcycles used in the crime and
that in the case-diary no reason is recorded for delay in lodging the First
Information Report.
23. PW14, PW15 and PW16 did not support the prosecution in
the Court and were declared hostile.
24. The evidence tendered through these witnesses is very
relevant. These witnesses gave genesis of the occurrence and through
them the prosecution has proved motive for murder of Krishna Kumar
Das. The marriage of Krishna Kumar Das with Lalita Kumari which was
an inter-caste marriage had infuriated the accused. One of the appellants
was found telling the villagers that he would teach a lesson to Krishna
Kumar Das for his act of indiscretion in fleeing away with his daughter.
The testimony of these witnesses is relevant under section 157 of the
Indian Evidence Act and the prosecution can very well bank upon them to
prove the initial part of the case.
25. Regarding delay in lodging the First Information Report, we
would indicate that there was no delay in lodging a report with the police.
After Krishna Kumar Das was abducted by the accused, PW5, PW7 and
PW8 moved towards the direction Krishna Kumar Das was taken away
by them. They came to Madhupur police station and gave information to
the officer-in-charge. PW5 came to GRP police station around 08:00 AM
on 10th September 2011 but could not meet the officer-in-charge and next
day morning PW7 informed him about a dead body lying on the railway
line. There is no material to suggest that the investigating officer
connived with the informant to falsely implicate the appellants.
Moreover, after the witnesses tendered evidence in support of the
prosecution case nothing much turns on the so called delay in lodging the
First Information Report. The main object of the First Information Report
9 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
is to set the criminal law in motion and to incorporate the basic facts
about the crime in the report. In "Ram Jag v. State of U.P." (1974) 4 SCC
201 the Hon'ble Supreme Court has observed that the prosecution cannot
be called upon to explain every hour of delay and a common sense view
has to be taken in ascertaining whether a First Information Report was
lodged after due deliberations.
26. PW5 who is the prime witness for prosecution gave a vivid
description of the occurrence. His evidence in the Court is that Mantu
Mandal, Rohit Mandal, Gajendra Mandal, Suren Mandal and Ghanshyam
Mandal were involved in abduction and murder of his nephew. He stated
in the Court that on 06th September 2011 Lalita Kumari came to her old
house at Kadai and eloped with his nephew on 07 th September 2011. They
got married and his nephew called him around 01:00 AM on
09th September 2011 to inform him that he got married with Lalita
Kumari. Early morning, around 05:00 AM, Mantu Mandal came from
Kadai to his house and offered to go to Kolkata to bring the children.
Same day evening, around 05:00 PM, he accompanied by Mantu Mandal
reached Kolkata and met Krishna Kumar Das and Lalita Kumari, who
was dressed like a married woman. Gajendra Mandal and Rohit Mandal
also arrived there and they all expressed their approval for the marriage
and said that they would finally take a decision at home. Same day
evening, they all boarded the train for Jasidih but, around 01:30 AM,
when the train arrived at Madhupur station Gajendra Mandal, Mantu
Mandal, Rohit Mandal and Lalita Kumari got down from the train. Mantu
Mandal forced him that a decision should be taken the same night at the
nearby village Bharwan. He has further stated that Mantu Mandal and
Gajendra Mandal caught hold of Krishna Kumar Das and moved towards
main road where Ghanshyam Mandal and Suren Mandal were waiting
with two motorcycles. Gajendra Mandal forcibly put Krishna Kumar Das
on a motorcycle and moved towards Madhupur-Giridih road. According
to him, Mantu Mandal sat behind Krishna Kumar Das and Rohit Mandal
drove the motorcycle. He has further stated that when he raised objection,
Gajendra Mandal and Mantu Mandal threatened him in abusive language.
10 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
He provided tickets and two photographs to the investigating officer
which were laid in evidence.
27. There is no other witness who saw abduction of Krishna
Kumar Das. The accused set up a plea that it is highly improbable that no
one at rickshaw and taxi stands which are outside the railway station
could see the occurrence. A suggestion was put to PW5 by the defence in
this regard to which he responded saying that around 01:30 AM in the
night the market was closed. He has further stated that no body was there
at the railway station when he got down from the train and that he did not
raise hulla. He denied the suggestion that Lalita Kumari lodged a case of
abduction and rape against Krishna Kumar Das, Pinku Das and Kishore
Mandal.
28. The learned trial Judge in paragraph no. 22 of the judgment
under challenge has observed as under:
"22. The defence has argued that contradiction has been
found with regard to timing mentioned in the F.I.R. and
in the deposition of the prosecution witnesses with
regard to various actions mentioned there. It transpires
that different facts were stated which occurred during
night and early hours of the day. After 12 in the night the
date changes. The witnesses are not very literate
persons. Under such circumstances chances are there
that some fault may occur while stating the timing of the
facts particularly their arrival at Madhupur station in
the dead of night at 1 O'clock/ 3 O'clock. Contradictions
has also been pointed out by the defence regarding place
of deputation of Bashudeo Das as home guard as to
whether he was posted at the residence of D.S.P.
Madhupur or at S.P. Deoghar. No doubt differences have
been noticed on the aforesaid facts in the statements of
P.W. 5 and 7 but these contradictions are minor in nature
and do not strike at the root of the prosecution case.
Minor contradictions may occur here and there which is
natural on the basis of which whole of the prosecution
case cannot be brushed aside."
29. The minor discrepancies in the evidence of a prosecution
witness are not given undue emphasis and what is important to examine is
whether the testimony of a witness inspires confidence and is credible.
Every omission in the evidence of a witness is not material omission and
minor contradictions, inconsistencies or improvements do not affect the
core of the prosecution case. Moreover, in the evidence of prosecution
witnesses some inconsistencies, exaggerations, improvements omissions
11 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
and embellishments are bound to happen and on the ground of minor
lapses in the testimony of a witness his evidence cannot be discarded in
toto.
30. In "Leela Ram v. State of Haryana" (1999) 9 SCC 525 the
Hon'ble Supreme Court has held as under :
"9. ....... There are bound to be some discrepancies between
the narrations of different witnesses when they speak on
details, and unless the contradictions are of a material
dimension, the same should not be used to jettison the
evidence in its entirety....."
31. In "Rohtash Kumar v. State of Haryana" (2013) 14 SCC 434
the Hon'ble Supreme Court has observed as under:
"24. It is a settled legal proposition that while
appreciating the evidence of a witness, minor
discrepancies on trivial matters which do not affect the
core of the case of the prosecution, must not prompt the
court to reject the evidence in its entirety. Therefore,
unless irrelevant, details which do not in any way
corrode the credibility of a witness should be ignored.
The court has to examine whether evidence read as a
whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence given by the witnesses and
whether the earlier evaluation of the evidence is shaken,
as to render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the
heart of the matter, and shake the basic version of the
prosecution witness. Thus, the court must read the
evidence of a witness as a whole, and consider the case
in light of the entirety of the circumstances, ignoring the
minor discrepancies with respect to trivial matters,
which do not affect the core of the case of the
prosecution. The said discrepancies as mentioned above,
should not be taken into consideration, as they cannot
form grounds for rejecting the evidence on record as a
whole. (See State of U.P. v. M.K. Anthony, State v.
Saravanan and Vijay v. State of M.P.)"
32. Generally the circumstance of last seen together is considered
highly incriminating and may be considered clinching evidence provided
the circumstance is proved by leading credible evidence. The
circumstance of last seen together would be clinching if there is evidence,
direct or circumstantial, establishing intention of the accused to commit
the crime. If the prosecution establishes that the victim was last seen alive
12 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
with the accused and there are other independent incriminating
circumstances available on record which the accused has failed to explain
satisfactorily and all taken together complete the chain of circumstances
to draw a conclusive inference that the accused is guilty.
33. The learned senior counsel for the appellants contends that
the long time gap between abduction of Krishna Kumar Das and recovery
of his dead body is not explained by the prosecution. The argument is that
abduction of the victim boy by the appellants, even if proved, cannot
make them liable for his murder because there are several other
possibilities.
34. There is one judicially evolved norm to examine efficacy and
applicability of the last seen theory. In "Bodhraj v. State of J&K" (2002)
8 SCC 45 the Hon'ble Supreme Court applied 'proximity test' to hold that
where the time gap between the point of time when the victim was last
seen alive with the accused and when he was found dead was so small
that chances of any other person other than the accused committing the
crime becomes remote the last seen theory become credible.
35. In "Bodhraj" the Hon'ble Supreme Court has explained the
law on last seen together, thus:
"31. The last-seen theory comes into play where the time-gap
between the point of time when the accused and the deceased
were last seen alive and when the deceased is found dead is
so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would
be difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long
gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to
conclude that the accused and the deceased were last seen
together, it would be hazardous to come toa conclusion of
guilt in those cases.........."
36. In a later judgment, in "Ramreddy Rajesh Khanna Reddy v.
State of A.P." (2006) 10 SCC 172 the Hon'ble Supreme Court has
observed as under:
"27. The last-seen theory, furthermore, comes into play
where the time gap between the point of time when the
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime
becomes impossible. Even in such a case the courts should
look for some corroboration."
13 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
37. We would now turn to the medical witness. The testimony of
PW11, Dr. Chandra Kishore Shahi, is extracted below:
"(1) On 11-9-11, I was posted at Sadar Hospital, Deoghar as
Dy. Superintendent. On that day at 3 PM I conducted
postmortem examination on the dead body of Krishna Kumar
Das aged 22 yrs. s/o-Deep Narayan Das, vill-Khijuriya, PS-
Kunda, Deoghar.
(2) Dead body was brought & identified by Hevaldar Makhan
Rajak and Basudeo Das relative.
(3) On examination I found following findings:
(i) Rigor mortis was present in all the four limbs.
(ii) Mouth & eyes were semi opened. Decomposition was
setting. The head, neck and face were swollen and clotted.
The skin colour of face, neck & lower part of lower abdomen
was blackish & associated with multiple postmortem blisters.
(iii) There was blood clot on both ears. Multiple abrasions
reddish brown in colour, bruises & of small size lacerations
were present in lower limbs & other parts of body.
(iv) The body was crushed & amputated into 2 halves at the
level of upper abdomen & lower chest. The margins of
amputated parts was inverted, irregular & abraded ( jxMk;k)
& of blackish discolourisation. A band of abrasion of reddish
discolourisation size 10"-12" x 1" was present on the lower
chest, close to amputation margin.
(v) Liver, spleen, kidneys & major parts of the eye track were
missing. Part of intestine, urinary bladder & small amount of
blood clot were present on the lower part of the abdomen
(pulvis).
(v) On dissection-Heed-Subcutaneous haematoma with
multiple fractures of skull bones on both sides.
- Subdural & intra cerebral haematoma were also
present on both sides of brain.
- Neck-No subcutaneous haematoma were present.
Hyoid bones, larynx and trachea were intact.
Chest-Multiple rib fracture on both side with bruising
& rupture of both lungs.
Heart - empty on both sides and pale.
(4) The cause of death, amputation of body and grievous
injuries, antemortem in nature and caused by hard & blunt
objects.
(5) Time since death within 24 hrs.
(6) This postmortem report was prepared by me & bears my
signature which I identify which is marked as Ext-3.
Cross-examination on behalf of Rohit Mandal -
(7) All injuries may be possible due to railway accident.
(8) Band of abrasion of reddish discolouration present near
the amputation margin are also possible due to railway
accidental case.
(9) Rigor mortis presence in body is affected by temperature.
After 24 hrs. of death, rigor mortis completely disappears
from the body.
Cross-examination of Mantu Mandal & Gajendra Mandal-
(10) Rigor mortis starts 1 to 4 hrs. after death &
decomposition of body starts after 18 to 36 hrs. of death."
38. The opinion of the doctor as regards time of death of Krishna
Kumar Das corroborates the prosecution case that he was murdered in the
14 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
intervening night of 9th/10th September 2011.
39. The evidence of PW5 that Krishna Kumar Das was abducted
by the accused in the intervening night of 9 th/10th September 2011 is the
most incriminating material against the appellants which they have failed
to explain. In "Navaneethakrishnan v. State by Inspector of Police"
(2018) 16 SCC 161 the Hon'ble Supreme Court has observed that the law
presumes that it is the person who was last seen with the deceased would
have killed the deceased and the burden to rebut the same lies on the
accused to prove that they had departed.
40. In "State of W.B. v. Mir Mohammad Omar" (2000) 8 SCC
382 the Hon'ble Supreme Court has observed that an inference can be
drawn against abductors that they have caused death and if this is not
factually correct only the abductors would know about it.
41. In "Sucha Singh v. State of Punjab" (2001) 4 SCC 375 the
Hon'ble Supreme Court has held as under:
"15. The abductors alone could tell the court as to what
happened to the deceased after they were abducted. When the
abductors withheld that information from the court there is
every justification for drawing the inference, in the light of all
the preceding and succeeding circumstances adverted to
above, that the abductors are the murderers of the deceased."
42. In "Murlidhar", the Hon'ble Supreme Court after referring to
the judgment in "Mir Mohammad Omar" observed that when the facts
are especially within the knowledge of the accused and it would be
impossible, or at any rate disproportionately difficult for the prosecution
to establish such facts, the rule under section 106 of the Evidence Act
would apply. The distinguishing feature in "Mir Mohammad Omar" and
"Murlidhar" was that it was established in "Mir Mohammad Omar" that
the accused had abducted the victim who was later found murdered. In
the present case, abduction of Krishna Kumar Das by Mantu Mandal and
Rohit Mandal is proved by the prosecution. The evidence of PW5 who
testified in the Court that Krishna Kumar Das was abducted by Mantu
Mandal and Rohit Mandal has remained intact. The dead body of Krishna
Kumar Das was found lying over Madhupur-Jasidih railway line early
morning on 11th September 2011. The doctor has rendered an opinion that
Krishna Kumar Das suffered homicidal death about 18 to 36 hrs. prior to
15 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
the postmortem examination. In the aforesaid circumstances, a question
can be justifiably asked to the appellants as regards what next happened
to Krishna Kumar Das who was found dead early morning on
11th September 2011.
43. Gajendra Mandal, Ghanshyam Mandal and Suren Mandal left
Madhupur station on another motorcycle. A plea is raised on behalf of
Ghanshyam Mandal that he cannot be convicted for abduction and
murder of Krishna Kumar Das. But the materials on record establish that
all five accused were acting in concert. They hatched a plan to kill
Krishna Kumar Das and each one of the conspirators played their
assigned role. The appellants went to Kolkata and assured the newly
married young couple that their marriage was acceptable to them. Under
the disguise of their approval for the marriage, the appellants brought
Krishna Kumar Das and Lalita Kumari from Kolkata and as per their plan
got down at Madhupur station where the other two accused were waiting
for them.
44. There are three essential ingredients of criminal conspiracy
which are: (i) an object to be accomplished; (ii) plan to accomplish the
object, and; (iii) an agreement or understanding between two or more
persons to accomplish the object. The most important ingredients of a
criminal conspiracy is an agreement between two or more persons to do
an illegal act, or an act which is per se not illegal but accomplish through
illegal means. It is not necessary that to establish the offence under
section 120-B of the Indian Penal Code the prosecution must prove that
the perpetrators of a crime especially agree to do or caused to be done the
illegal act, rather the agreement between two or more persons can be
established through circumstantial evidence.
45. In "Damodar v. State of Rajasthan" (2004) 12 SCC 336 the
Hon'ble Supreme Court has observed as under :
"15. ... The most important ingredient of the offence being
the agreement between two or more persons to do an illegal
act. In a case where criminal conspiracy is alleged, the court
must inquire whether the two persons are independently
pursuing the same end or they have come together to pursue
the unlawful object. The former does not render them
conspirators but the latter does. For the offence of
conspiracy some kind of physical manifestation of agreement
16 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
is required to be established. The express agreement need not
be proved. The evidence as to the transmission of thoughts
sharing the unlawful act is not (sic) sufficient. A conspiracy is
a continuing offence which continues to subsist till it is
executed or rescinded or frustrated by choice of necessity.
During its subsistence whenever any one of the conspirators
does an act or a series of acts, he would be held guilty under
Section 120-B of the Penal Code, 1860."
46. In a criminal conspiracy which is generally hatched in
secrecy each conspirator may play different role to achieve the common
purpose. A criminal conspiracy is mostly proved by circumstantial
evidence and conviction of an accused can be recorded where it is found
that the cumulative effect of the circumstances establish his guilt. The
manner in which the appellants executed their plan conclusively
establishes that they entered into a conspiracy to eliminate Krishna
Kumar Das.
47. The appellants are convicted under section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 which reads as under:
"(v) commits any offence under the Indian Penal Code (45 of
1860) punishable with imprisonment for a term of ten years
or more against a person or property knowing that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member, shall be
punishable with imprisonment for life and with fine."
48. The primary objection of the accused for the marriage of
Krishna Kumar Das with Lalita Kumari was that it was an inter-caste
marriage and Krishna Kumar Das belonged to scheduled caste. That was
the reason for murder of Krishna Kumar Das and, therefore, the
appellants are rightly convicted under section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
judgment in "Khuman Singh" rests on a different fact situation. The evil
of caste system and honour killing of young boys and girls threaten the
social fabric of a civilized society. It is bounden duty of the Courts to give
effect to the legislative intendment in this regard.
49. In "Lata Singh v. State of U.P." (2006) 5 SCC 475 the Hon'ble
Supreme Court has observed as under:
"17. The caste system is a curse on the nation and the sooner
it is destroyed the better. In fact, it is dividing the nation at a
time when We have to be united to face the challenges before
17 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
the nation unitedly. Hence, inter-caste marriages are in fact
in the national interest as they will result in destroying the
caste system. However, disturbing news are coming from
several parts of the country that young men and women who
undergo inter-caste marriage, are threatened with violence,
or violence is actually committed on them. In our opinion,
such acts of violence or threats or harassment are wholly
illegal and those who commit them must be severely
punished. This is a free and democratic country, and once a
person becomes a major he or she can marry whosoever
he/she likes. If the parents of the boy or girl do not approve of
such inter-caste or inter-religious marriage the maximum
they can do is that they can cut-off social relations with the
son or the daughter, but they cannot give threats or commit or
instigate acts of violence and cannot harass the person who
undergoes such inter-caste or inter-religious marriage. We,
therefore, direct that the administration/police authorities
throughout the country will see to it that if any boy or girl
who is a major undergoes inter-caste or inter-religious
marriage with a woman or man who is a major, the couple is
not harassed by anyone nor subjected to threats or acts of
violence, and anyone who gives such threats or harasses or
commits acts of violence either himself or at his instigation, is
taken to task by instituting criminal proceedings by the police
against such persons and further stern action is taken against
such persons as provided by law."
50. In "Shakti Vahini v. Union of India" (2018) 7 SCC 192 the
Hon'ble Supreme Court has observed as under:
"43. Honour killing guillotines individual liberty, freedom of
choice and one's own perception of choice. It has to be
sublimely borne in mind that when two adults consensually
choose each other as life partners, it is a manifestation of
their choice which is recognised under Articles 19 and 21 of
the Constitution. Such a right has the sanction of the
constitutional law and once that is recognised, the said right
needs to be protected and it cannot succumb to the
conception of class honour or group thinking which is
conceived of on some notion that remotely does not have any
legitimacy.
44. The concept of liberty has to be weighed and tested on the
touchstone of constitutional sensitivity, protection and the
values it stands for. It is the obligation of the constitutional
courts as the sentinel on qui vive to zealously guard the right
to liberty of an individual as the dignified existence of an
individual has an inseparable association with liberty.
Without sustenance of liberty, subject to constitutionally valid
provisions of law, the life of a person is comparable to the
living dead having to endure cruelty and torture without
protest and tolerate imposition of thoughts and ideas without
a voice to dissent or record a disagreement. The fundamental
feature of dignified existence is to assert for dignity that has
the spark of divinity and the realisation of choice within the
parameters of law without any kind of subjugation. The
purpose of laying stress on the concepts of individual dignity
and choice within the framework of liberty is of paramount
importance. We may clearly and emphatically state that life
and liberty sans dignity and choice is a phenomenon that
allows hollowness to enter into the constitutional recognition
18 Cr. Appeal (D.B) No. 299 of 2018 & analogues matters
of identity of a person.
45. The choice of an individual is an inextricable part of
dignity, for dignity cannot be thought of where there is
erosion of choice. True it is, the same is bound by the
principle of constitutional limitation but in the absence of
such limitation, none, we mean, no one shall be permitted to
interfere in the fructification of the said choice. If the right to
express one's own choice is obstructed, it would be extremely
difficult to think of dignity in its sanctified completeness.
When two adults marry out of their volition, they choose their
path; they consummate their relationship; they feel that it is
their goal and they have the right to do so. And it can
unequivocally be stated that they have the right and any
infringement of the said right is a constitutional violation.
The majority in the name of class or elevated honour of clan
cannot call for their presence or force their appearance as if
they are the monarchs of some indescribable era who have
the power, authority and final say to impose any sentence and
determine the execution of the same in the way they desire
possibly harbouring the notion that they are a law unto
themselves or they are the ancestors of Caesar or, for that
matter, Louis the XIV. The Constitution and the laws of this
country do not countenance such an act and, in fact, the
whole activity is illegal and punishable as offence under the
criminal law."
51. In the end, we hold that the prosecution has proved the
charges against the appellants.
52. In the result, Criminal Appeal (DB) No. 299 of 2018,
Criminal Appeal (DB) No. 267 of 2018 and Criminal Appeal (DB)
No. 282 of 2018 are dismissed.
53. Let the lower Court records be transmitted to the Court
concerned, forthwith.
54. Let a copy of the Judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 01st November 2021
sudhir/
NAFR
