Anup Kumar Mandal vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 927 Jhar

                                     1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Cr. Appeal (DB) No. 434 of 1994 (P)
                                   With
                 Cr. Appeal (DB) No. 457 of 1994 (P)
                              ------
 (Against the Judgment of conviction dated 23.07.1994 and order of
 sentence dated 27.07.1994 passed by Additional Sessions Judge-II,
 Godda in Sessions Case No.143 of 1993/19 of 93/8 of 94)
                              ------
 1. Anup Kumar Mandal
 2. Rajesh Kumar Mandal, sons of Shiva Narain Mandal
  Both of Sarkandi, Police Station Pirpaity (Ishipur), District Bhagalpur
                          ....... Appellants (Cr. Appeal (DB) No. 434 of 1994 (P))
 1.Bipin Kumar Mandal son of Bali Ram Mandal, resident of Village
 Sarkanda, Police Station Pirpaint, District Bhagalpur.
 2.Sanjeet Kumar Mandal son of Sukdeo Singh, resident of Village
 Mahagama, Police Station Mahagama, District Godda.
                            ........ Appellants (Cr. Appeal (DB) No. 457 of 1994 (P))
                                     Versus
  The State of Bihar (Now Jharkhand)                   ........ Respondent
                             ------
                          PRESENT
        HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE SUBHASH CHAND
                          -----
For the Appellants        : Mr. Ranjan Kumar Singh, Advocate
                          : Mr. S.N.P. Roy, Advocate
For Respondent            : Mr. Ravi Prakash, APP
                          -------
CAV on:14th February,2023                 Pronounced on: 27/02/2023
Per: Sujit Narayan Prasad, J.

Both the appeals have been filed against the common judgment

of conviction dated 23.07.1994 and order of sentence dated 27.07.1994

and as such both these appeals have been heard together and are being

disposed of by common order.

2. Both criminal appeals have been filed under Section 374(2) of the

Code of Criminal Procedure directed against the Judgment of

conviction dated 23.07.1994 and order of sentence dated 27.07.1994

passed by Additional Sessions Judge-II, Godda in Sessions Case

No.143 of 1993/19 of 93/8 of 94 by which all the appellants have been

convicted for commission of offence under Sections 302/34 of the

Indian Penal Code and further accused Anup Kumar Mandal (appellant

no.1 in Cr. Appeal (DB) no.434 of 1994) has also been convicted under

sections 307 and 324 of the Indian Penal Code and all the

appellants/accused have been sentenced to undergo imprisonment for

life under sections 302/34 of the Indian Penal Code. Accused no.1 (Cr.

Appeal (DB) No. 434 of 1994 (P)) has further been sentenced to

undergo R.I for five years under section 307 I.P.C and R.I. for two years

under Section 324 I.P.C. Sentences of convicted accused no.1, Anup

Kumar Mandal (Cr. Appeal (DB) No. 434 of 1994 (P) ) directed to be

run concurrently.

3. The brief facts of the case, as per the statement made in

fardbeyan, reads as under:

The informant-Sanjay Kumar Rai (P.W-7) gave his fardbeyan

before the Officer-in-charge, Pathargama at 6.15 a.m. on 13.05.1992

that on 12.05.1992 when the examination was over at Pathargama High

School, he was accompanying his friend Sanjay Kumar (deceased) for

visiting his Fufa's house but his Fufa was not present at his house so

they were coming back from the house of his Fufa. In the midway at

Mahagama accused Bipin Kumar Mandal (appellant no.1 in Cr. Appeal

(DB) no.457 of 1994) came across to them and took both of them to his

sister's house located at Mahgama. At his sister's house accused Anup

Kumar Mandal and Rajesh Kumar Mandal (appellants in Cr. Appeal

(DB) no.434 of 1994) were present from before. At about 5.00 p.m

accused Sanjeet Kumar Mandal, (appellant no.2 in Cr. Appeal (DB)

no.457 of 1994) brother-in-law of accused Bipin Kumar Mandal

expressed his desire for nature call. Thereafter informant and his

companion along with all the four accused reached near a pond then

accused Sanjeet Kumar Mandal proposed to go to Canadian Hostel.

Thereafter all of them started proceeding towards the hostel and when

the informant said that he and his companion had to return to

Pathargama for their examination on 13.05.1992 all accused persons

namely, Bipin Kumar Mandal, Anup Kumar Mandal, Rajesh Kumar

Mandal, and Sanjeet Kumar Mandal had surrounded Sanjay Kumar

Mandal (the deceased) and assaulted him with Chhura and Dabha.

When informant (P.W-7) intervened then accused Anup Kumar Mandal

also assaulted him with Chhura on his left wrist, left arm and back. He

having raised alarm had left the place of occurrence and reached at

Mohanpur Chowk and boarded a truck. The informant came to

Pathargama by truck where he was admitted in the hospital by

assistance of his friend and compounder. It is further alleged that in

morning at Pathagama hospital informant came to know that his friend

Sanjay Kumar has been murdered by aforesaid four accused persons.

4. On the basis of the said fardbeyan, F.I.R. was registered being

Mahagama P.S. Case No.45 of 1992 for commission of offence under

Section 307/324/302/34 of the Indian Penal Code.

The police started investigation and on conclusion of the

investigation the charge sheet was submitted, whereupon cognizance of

the offence was taken and the case was committed to the Court of

Sessions.

5. The trial court after commitment of case framed charges against

all the appellants under Sections 302/34 of the Indian Penal Code. In

addition to that the charge was framed against the accused-Anup Kumar

Mandal (appellant no.1 in Cr. Appeal (DB) no.434 of 1994) under

Sections 307 and 324 of the Indian Penal Code. The trial court after

examining the evidence of witnesses, examination-in-chief and cross-

examination, recorded the statement of the accused persons and found

the charges levelled against the appellants proved beyond all reasonable

doubt. Accordingly, the appellants have been found guilty and

convicted for the offence punishable under Section 302/34 of the Indian

Penal Code and further accused Anup Kumar Mandal (appellant no.1 in

Cr. Appeal (DB) no.434 of 1994) has been convicted under sections 307

and 324 of the Indian Penal Code and accused/appellants have been

sentenced to undergo imprisonment for life under sections 302/34 of the

Indian Penal Code. Further accused no.1 (Cr. Appeal (DB) No. 434 of

1994 (P)) has been sentenced to undergo R.I for five years under

section 307 I.P.C and R.I. for two years under Section 324 I.P.C.

Sentences of convicted accused no.1, Anup Kumar Mandal (Cr. Appeal

(DB) No. 434 of 1994 (P) ) directed to be run concurrently.

6. Mr. Ranjan Kumar Singh, learned counsel appearing for the

appellants in both the appeals have raised the following grounds for

assailing the impugned order:

(i) The prosecution has not been able to prove the charge beyond all

shadow of doubt which would be evident from the close scrutiny of the

testimony of the witnesses but without considering the same the

judgment of conviction has been passed and as such the impugned

judgment is not sustainable in the eye of law.

(ii) The learned trial court has also not considered the false

implication of the appellants even though it has come in the testimony

of the witnesses that the father of the deceased and the brother of the

accused were having inimical relationship. The issue of second F.I.R

has also been raised. According to the learned counsel for the appellant

the investigation which has been conducted on the basis of the

fardbeyan dated 13.05.1992 cannot be said to be the first F.I.R., rather,

there was disclosure by the P.W-7 to the police that while he was in

hospital at Pathagama for his treatment where he had given statement

before Mahagama Police but the said statement has not been brought on

record and therefore, the conviction since is based upon the second

F.I.R., cannot be said to have any admissibility.

(iii) P.W-6, witness to the inquest report has not corroborated the

seized material, since, there is no seizure memo. The ground has been

taken that the arms which has been used in giving assault to the

deceased has not been sent for its chemical examination and as such

serious prejudice has been caused to the appellants.

Learned counsel for the appellants on the basis of the aforesaid

background has submitted that the impugned judgment is not

sustainable in the eye of law.

7. Per contra, Mr. Ravi Prakash, learned A.P.P appearing for the

State has submitted that it is incorrect on the part of the appellants to

take the ground that the prosecution has not been able to prove the

charge beyond all shadow of doubt, rather, the prosecution has been

able to prove the charge beyond all shadow of doubt since the same is

based upon the testimony of the sole eye witness (P.W-7), the injured

witness whose version has been corroborated by the investigating

officer (P.W-10) and the doctor (P.W-12) who examined him in the

injured condition.

On the issue of the ground of enmity, submission has been made,

that even accepting that there was inimical relationship between the

father of the deceased and the brother of the accused but that cannot

falsify the testimony of P.W-7, since, he was having no inimical

relationship with anyone, since nothing has come to that effect on

record.

The submission has been made on the issue of the second F.I.R

by taking the ground that it is not the case where the second F.I.R has

been instituted, rather, the place of occurrence falls under the

jurisdiction of Mahagama Police Station while the P.W-7 was having

his residence under the jurisdiction of Pathargama Police Station. It has

been submitted that it has come in the testimony and it would be

evident from the material available on record that the P.W-7

immediately after the occurrence took place had rushed to Pathargama

and was hospitalized in a hospital which falls under the jurisdiction of

the Pathargama Police Station and while he was in hospital at

Pathargama, the police personnel of the Mahagama Police Station had

come for interrogation from P.W-7 on the basis of the fact that the

occurrence took place falls under the Mahagama Police Station, where,

the P.W-7 had given statement before the police officer of the

Mahagama Police Station in the night of 12.05.1992 and immediately

on the following day the incidence was reported by the P.W-7 at 6.15

a.m on 13.05.1992 and as such it is not a case where there are two

F.I.Rs.

The learned A.P.P. on the issue of incriminating material having

been not been seized and the P.W-6 has not corroborated even though

he is the inquest witness and the arms used in giving assault to the

deceased has not been sent for its chemical examination, the same will

not vitiate the prosecution, since, the prosecution is based upon the

testimony of the injured eye witnesses, the P.W-7.

Learned A.P.P on the basis of the aforesaid ground has submitted

that the judgment of conviction since is based upon the due

consideration of the testimony of P.W-7 having been supported by the

investigating officer and the doctor and as such the judgment of

conviction requires no interference.

8. We have heard the learned counsel for the parties and gone

through the materials available on record but before going into the

legality and propriety of the impugned judgment of conviction and

order of sentence, deem it fit and proper to first discuss about the

testimony of the witnesses as also the documents on record.

9. The prosecution has examined altogether thirteen witnesses

including the informant and the investigation officer. As per material

available on record the P.W-1, namely, Dayanand Rai, P.W-2- Deep

Narain Mandal, grandfather of the deceased Sanjay Kumar Mandal,

P.W-3-Manohar Kumar Mandal, brother of the deceased, P.W-4-

Rukmini Devi, grandmother of the deceased, P.W-5-Ram Sevak

Mandal, father of the deceased, P.W-8-Lal Bahadur Singh, P.W-9-

Ahilya Devi, mother of the deceased, all are post occurrence witnesses.

P.W-6-Tarani Prasad Yadav, witness to the seizure who has proved

the seizure list. P.W-7-Sanjay Kumar Rai, victim of the occurrence as

well informant of the case, has proved the fardbeyan.

It appears from the testimony of P.W-1, P.W-2, P.W-3, P.W-4,

P.W-5, P.W-6, P.W-8 and P.W-9 who have said in their testimony about

the occurrence having been disclosed by Sanjay Kumar Rai-P.W-7,

therefore, is the sole eye witness who sustained injury while

accompanying the deceased to Mahagama and as such, the testimony of

P.W-7 requires to be considered by this Court.

10. The P.W-7 has stated in his testimony that on 12.05.1992 when

the examination was over at Pathargama High School, he was

accompanying his friend Sanjay Kumar Mandal for visiting his Fufa's

house but his Fufa was not present at his house so they were coming

back from the house of his Fufa. In the midway at Mahagama accused

Bipin Kumar Mandal (appellant no.1 in Cr. Appeal (DB) no.457 of

1994) came across to them and took both of them to his sister's house

located at Mahgama. At his sister's house accused Anup Kumar Mandal

and Rajesh Kumar Mandal (appellants in Cr. Appeal (DB) no.434 of

1994) were present from before. At about 5.00 p.m accused Sanjeet

Kumar Mandal, (appellant no.2 in Cr. Appeal (DB) no.457 of 1994)

brother-in-law of accused Bipin Kumar Mandal expressed his desire for

nature call. Thereafter informant and his companion along with all the

four accused reached near a pond then accused Sanjeet Kumar Mandal

proposed to go to Canadian Hostel. Thereafter all of them started

proceeding towards the hostel and when the informant said that he and

his companion had to return to Pathargama for their examination on

13.05.1992 accused Bipin Kumar Mandal, Anup Kumar Mandal,

Rajesh Kumar Mandal, and Sanjeet Kumar Mandal had surrounded

Sanjay Kumar Mandal (the deceased) and assaulted to him with Chhura

and Dabha. When informant intervened then accused Anup Kumar

Mandal also assaulted him with Chhura on left wrist, left arm and back.

He having raised alarm had left the place of occurrence and reached at

Mohanpur Chowk and boarded a truck. The informant came to

Pathargama by truck where he was admitted in the hospital by

assistance of his friend and compounder.

He has narrated the entire story and thereafter the investigation

has started.

11. It is evident from the testimony of P.W-7 that his fardbeyan was

recorded by Pathagama police in the morning on 13.05.1992, while, he

rushed from the place of occurrence falling under the jurisdiction of

Mahagama Police Station and reached to Pathargama Police Station in

the night and being admitted in the hospital falling under the

jurisdiction of Pathargama Police Station in the night of 12.05.1992 his

statement was recorded by the police personnel of the Mahagama Police

Station. It is evident from the testimony of P.W-7 that he also sustained

injury given by the accused persons by Chura and Dabah when he tried

to save the life of the deceased and he managed somehow to flee from

that place and reached to Pathargama where he had been hospitalized

for his treatment. The version of the P.W-7 as to whether can be

considered to be authentic is to be considered on the basis of the

testimony of the doctor (P.W-12), who has treated the informant found

the following injuries on the body of the informant:

"¼i½ dVk gqvk /kalk pksV ¼Incised punctured wound½ 2¼ " x 1" ihB ds ihNys Hkkx ij] jh<+ ds Bhd cka;k rjQ ik;kA eSa bl pksV xgjkbZ ugha uki ldkA ¼ii½ dVk gqvk pksV 1 " x 0.2"x ekalisf'k;ksa rd xgjk cka;s dykbZ ds vUn:uh Hkkx esAa ¼ii½ dVk gqvk pksV 0.3" x 0.1"x ekalisf'k;ksa rd xgjk cka;s da/ks ijA"

12. P.W-7 has deposed in his testimony that he sustained injury by

Chura in the left side of the abdomen, in hand and at last in the back

portion of the body as would appear from his testimony recorded at

paragraph 6 and when the said injury has been compared with the injury

shown in the deposition by P.W-12 who has treated the P.W-7 the same

finds corroboration. P.W-7 who has suffered injury in course of the

assault being given by the accused persons to the deceased and as such

being an injured whose injury has been corroborated by P.W-12,

therefore, his testimony is required to be considered as an eye witness

to the occurrence.

13. Further the P.W-10-Vishnu Rajak, the investigating officer has

stated in his testimony that he has visited the place of occurrence

fromwhere he has seized the knife with blood stained, three slippers,

one handkerchief (Rumal) and blood stained earth near the dead body.

He has also seized the identity card which has been seized in presence

of the witnesses and seizure list has been prepared which has been

marked as Exhibit-1. He has stated that when he reached to Pathargama

from Mahagama Police Station, where the cause took place he has

recorded the statement of informant, Sanjay Kumar Rai (P.W-7). He has

further stated that he has received the injury report from Pathargama

hospital. He has further stated that the version of the fardbeyan as was

given by P.W-7 has been reiterated in his restatement.

Therefore, this Court on the basis of the due consideration of the

testimony of P.W-7, P.W-10 and P.W-12 are of the considered view that

testimony of P.W-7 is to be considered as the eye witness who sustained

injury in course of assault given by the accused persons to the deceased.

14. The position of law is well settled that if the conviction is based

upon the testimony of the injured witness his testimony cannot be

thrown out even though there is minor discrepancy in the investigation,

reference in this regard may be made to the judgment of the Hon'ble

Apex Court rendered in the case of Bhajan Singh @ Harbhajan Singh

& Ors. vs. State of Haryana, (2011) 7 SCC 421 wherein at paragraph

36 it has been held, which reads as under:

"36. ..........The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Abdul Sayeed v. State of M.P."

Further the Hon'ble Apex Court in the case of Ramvilas vs. State

of M.P, reported in (2016) 16 SCC 316 has held at paragraph 6, which

reads as under:

"6. In the incident, Narmada Prasad (PW 3) and Uma Bai (PW 5), sister of the deceased sustained injuries and Ext. P-9 and Ext. P-10 are the MLC Reports of Narmada Prasad (PW 3) and Uma Bai (PW 5), respectively issued by Dr S.K. Dhoble (PW 10). Narmada Prasad (PW 3) and Uma Bai (PW 5) being injured witnesses, their presence at the time and place of occurrence cannot be doubted. Evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard the evidence of the injured witnesses. We do not find any ground to disbelieve the evidence of injured witnesses Narmada Prasad (PW

3) and Uma Bai (PW 5)."

15. This Court after having considered the aforesaid judgment, is

now proceeding to examine the argument advance on behalf of the

appellants with respect to the issue of enmity. So far as this ground is

concerned, the enmity as is being reflected from the testimony in

between the father of the deceased and the brother of the accused but it

has nowhere come that there was enmity of the accused persons with

the P.W-7 and as such there is no reason to disbelieve the testimony of

P.W-7 of the ground of having enmity in between the father of the

deceased and the brother of the accused.

So far as the ground pertaining to not sending the arms which has

been used in giving assault to the deceased for its chemical

examination, the same cannot vitiate the prosecution story if the

prosecution has been able to prove the charge on the basis of the

testimony of the eye witness as the case of the given facts herein is,

reference in this regard may be made to the judgment of the Hon'ble

Apex Court rendered in the case of State of Punjab vs. Hakam Singh

reported in (2005) 7 SCC 408 wherein ar paragraph 11 and 13 it has

been held, which reads as under:

"11. The High Court has disbelieved her testimony on the grounds i.e. on the manner of firing and recovery of the guns, non- seizure of bloodstained clothes but these shortcomings hardly impeach her testimony. In order to impeach her testimony technical questions were asked to her which was not the correct approach for discarding her testimony. Therefore, we are of the opinion that the High Court has committed an error in discarding the testimony of this witness on technical grounds dehors the factual statement given by her."

13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident."

16. This Court on the basis of the principle laid down by Hon'ble

Apex Court in the case of judgment referred hereinabove, is of the view

that even if the arms which has been used in giving assault to the

deceased having not been sent for its chemical examination, the same

cannot be allowed to prevail upon the testimony of the eye witness/the

injured witness herein.

17. The issue of second F.I.R. as the ground has been taken on behalf

of the appellants has been considered by this Court and we have found

that there is no substance in the argument, since, we have found from

the material available on record that it is not the issue of having the

institution of two F.I.Rs, since, it has been gathered by this Court that

P.W-7 was the resident of Pathargama Police Station. He had gone to a

place which falls under the jurisdiction of Mahagama Police Station

where the occurrence took place. He, after sustaining injury, had

reached to hospital situated in Pathargama Police Station where he was

residing. The concerned police of the Mahagama Police Station after

came to know about the occurrence had reached before the P.W-7 who

was getting treatment in the hospital situated in the Pathargama Police

Station where P.W-10 has taken the statement of the P.W-7 as would

appear from such disclosure made by P.W-10 in paragraph 8 of his

testimony. He thereafter had received a fardbeyan from the Chowkidar

of Pathargama and thereafter the F.I.R was instituted.

The disclosure made in the fardbeyan is having reference of

Primary Health Center, Pathargama and the same has been drawn as a

formal First Informant Report at Mahagama as would appear from

page-1 of the F.I.R being registered as Mahagama (Godda) P.S. Case

No.45 of 1992 as such it is evident from the testimony as per the

discussion made hereinabove that there are no two F.I.Rs but only one

F.I.R. being Mahagama (Godda) P.S. Case No.45 of 1992 instituted on

the basis of the fardbeyan of P.W-7 recorded at Primary Health Centre,

Pathargama.

18. This Court after having considered the argument advanced on

behalf of the appellants has scrutinized the finding recorded by the

learned trial court and found therefrom that the learned trial court has

given thoughtful consideration of coming to conclusion as to whether

the prosecution has been able to prove the charge beyond all shadow of

doubt. While coming to such conclusion, the learned trial court has

considered the testimony of P.W-7 to be given by injured eye witness

having been corroborated so far as injury is concerned on the basis of

narration of the injury sustained by him by the doctor (P.W-12) who has

treated him. Further the learned trial has considered the testimony of the

investigating officer which finds in corroboration with the testimony of

P.W-7 and basis upon which the judgment of conviction has been

passed.

19. Therefore, according to our considered view, the judgment of

conviction since is based upon the cogent evidence hence the same

cannot be said to suffer from any perversity and accordingly, the

judgment passed by the learned trial court requires no interference.

20. In the result, the instant appeal fails and is hereby dismissed.

21. Consequent upon dismissal of the appeal preferred by the

appellants, since appellants who are enjoying suspension of sentence

after the order being passed by this Court directed to release them

during pendency of the appeal, their bail bonds are cancelled and they

are directed to surrender before the learned trial Court who would send

them jail to serve out their remaining sentence with fine of Rs.1000/-.

22. Needless to say that if the appellants will not surrender, the trial

Court will take endeavours for securing custody to serve out their

remaining sentence and further secure that they deposit the amount of

fine so imposed by this Court.

23. Let the Lower Court Records be sent back to the Court concerned

forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, J.)

I agree.

(Subhash Chand, J.)

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Saket/ - A.F.R.