Jharkhand High Court

Birju Mandal vs The State Of Jharkhand on 11 October, 2023

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               (Criminal Appellate Jurisdiction)

                       Criminal Appeal (SJ) No. 196 of 2012

(Against the judgment of conviction and the order of sentence dated 30 th January 2012
passed by the learned 2nd Additional Sessions Judge, Deoghar in S.C. Case No. 208 of
2006)
                                       ------
1. Birju Mandal,
2. Surju @ Surya Narayan Mandal, both sons of late Harihar Mandal, both
residents of Village - Amgachhi, PO & PS Mohanpur, Subdivision and
District Deoghar.
3. Ram Chandra Mandal, son of late Bhikhan Mandal, resident of Village -
Amgachhi, PO Malhara, PS Mohanpur, Subdivision and District Deoghar.
                                                          ....       ..... Appellants

                                     Versus
The State of Jharkhand                                      ...      .... Respondent

                                   PRESENT

        HON'BLE MR. JUSTICE SUBHASH CHAND
                                       -------
      For the Appellant(s)          : Mrs. J. Mazumdar, Advocate
      For the State                 : Mr. Sanjay Kr. Srivastava, APP

                                   -------
                                 JUDGMENT

CAV on 11th September 2023 Pronounced on 11 th October 2023 Per, Subhash Chand, J.

The instant criminal appeal has been preferred against the

judgment of conviction and order of sentence dated 30.01.2012 passed in

Sessions Case No.208 of 2006, arising out of Mohanpur P.S. Case No. 23 of

1985, corresponding to G.R. Case No. 210 of 1985 and P.C.R. Case No.62

of 1985 passed by the learned 2nd Additional Sessions Judge, Deoghar

whereby the appellant no.1 Birju Mandal was held guilty for the offence

under section 325 of the Indian Penal Code (hereinafter referred to as 'IPC') 2 Cr. Appeal (SJ) No. 196 of 2012

and sentenced with rigorous imprisonment of six months and a fine of

Rs.5,000/-. In default of payment of fine, the additional rigorous

imprisonment of 15 days was directed to undergo. Appellant no.2 Surju @

Surya Narayan Mandal was held guilty for the offence under section 323 of

IPC and was sentenced to undergo rigorous imprisonment for one month

while the appellant no.3 Ram Chandra Mandal was held guilty for the

offence under section 307 of IPC and was sentenced with rigorous

imprisonment of five years and a fine of Rs.7,000/-. In default of payment of

fine further rigorous imprisonment of one month was directed to undergo.

2. The brief facts of the prosecution case leading to this criminal

appeal are that as per GD entry (sanha) on the intervening night of 15th-16th

April 1985 in the night at 1 O'clock accused Ram Chandra Mandal, Birju

Mandal, Surju @ Surya Narayan Mandal and Shaheb Mandal came to the

house of the informant Singheswar Mandal and hurled abuse to him and

beated him and Phuleshwar Mandal caused injury on their body. Thereafter,

the complaint was also given on behalf of informant Singheswar

Mandal with these allegations that in the night of 15 th/16th April 1985 the

complainant Singheswar Mandal found the stones were falling on his tiled

roof and in the courtyard of his house. He raised alarm of chor-chor. Hearing

the same, his brother Phuleshwar Mandal, Rewal Mandal attracted there.

Villagers Govind Mandal, Dhanraj Mandal, Shailesh Singh, Sahdeo Mahra

and Bishwanath Mandal also came there. The accused persons were on the

roof of their double storeyed house adjoining to the house of complainant

and they were peeping from the roof of double storeyed house. The

complainant Singheswar Mandal asked the accused persons to come down

from the roof of their house and to open the gate of their garden. Thereafter, 3 Cr. Appeal (SJ) No. 196 of 2012

all the accused persons got annoyed and came down from the roof hurling

abuse at the door of the house of complainant. The accused Ram Chandra

Mandal was armed with country made pistol. Rest of the accused Birju

Mandal, Surju @ Surya Narayan Mandal and Shaheb Mandal were armed

with lathi. The brother of informant namely, Phuleshwar Mandal asked the

accused persons to desist of hurling abuse. At this accused Birju Mandal

gave him a lathi blow at his right shoulder causing dislocation of the right

shoulder joint and Shaheb Mandal gave him a lathi blow on his chest. The

informant Singheswar Mandal and one villager Govind Mandal both came

to rescue Phuleshwar Mandal then the accused Surju @ Surya Narayan

Mandal gave a lathi blow on the left chest of Govind Mandal and accused

Ram Chandra Mandal opened fire by country made pistol, pellets of which

passed away causing injury on the left side of his face just below the left ear

of the informant. Thereafter, all the accused persons fled away from there. In

the morning 7:00 AM the complainant and all the injured persons went to

the police station Mohanpur where ASI Madan Mohan Sharma was present.

They narrated the story to him, but he did not record their fardbeyan rather

threaten them to settle the matter and after repeated request of the

complainant, the injury report of injured was prepared and their name and

address were entered in the station diary. Firstly, on the oral information

given by the informant with the police station Mohanpur Sanha No. 306

dated 16.04.1985 was registered. The informant and injured were sent

to the hospital for their treatment. Thereafter, Mohanpur P.S. Case No.

23 of 1985 under sections 325, 323 read with 34 of IPC was registered

against all the accused persons. Thereafter the complainant filed a

complaint petition bearing P.C.R. No. 62 of 1985 in the court of learned 4 Cr. Appeal (SJ) No. 196 of 2012

Judicial Magistrate, 1st Class, Deoghar. By the order of the learned

Magistrate, the investigation was conducted and the investigating officer

after having concluded the investigation filed charge-sheet under sections

323/34, 325/34, 307/34 of IPC against the accused Birju Mandal, Surju

@ Surya Narayan Mandal, Ram Chandra Mandal and Shaheb Mandal.

Thereafter, vide order dated 22.09.1986 passed by the learned Judicial

Magistrate before the commitment of P.C.R. Case No. 62 of 1985 was

amalgamated with G.R. Case of Mohanpur P.S. Case No. 23 of 1985 and

directed to proceed the case in G.R. Case staying the proceeding of the

complaint bearing P.C.R. Case No. 62 of 1985.

3. Thereafter the learned Judicial Magistrate concerned framed the

charge under section 325 of IPC against one Shaheb Mandal, section 323 of

IPC against all the accused Birju Mandal, Surju @ Surya Narayan Mandal

and Ram Chandra Mandal. During trial before the learned Magistrate on the

petition of the prosecution the learned Judicial Magistrate, 1 st Class found

the case against the accused persons under section 307 of IPC and ordered

to commit the case for trial to the court of sessions. Against the order passed

by the learned Magistrate, the criminal revision was preferred bearing

Criminal Revision No. 78 of 1997 which was also dismissed by the court of

sessions. Thereafter, the case was committed to the court of the learned

Sessions Judge for trial.

4. The court of learned Sessions Judge transferred the case to the

learned Additional Sessions Judge, F.T.C. IV, Deoghar and same was also

transferred to other courts and ultimately was transferred to the court of

learned 2nd Additional Sessions Judge, Deoghar.

5 Cr. Appeal (SJ) No. 196 of 2012

5. During trial in the court of learned Sessions Judge accused

Shaheb Mandal died and vide order dated 28.01.2011 the charge was

framed against the accused Birju Mandal, Surju @ Surya and Ram Chandra

Mandal.

6. The trial court framed charge against the accused Birju Mandal,

Surju @ Surya Narayan Mandal, Ram Chandra Mandal for the offence

under sections 323/34, 325/34 and 307/34 of IPC. The charges was read

over and explained to the accused persons. All the accused persons denied

the charge and claimed to face the trial.

7. On behalf of prosecution to prove the charge against all the

accused persons in oral evidence examined PW1- Singheswar Mandal,

PW2- Govind Mandal, PW3- Phuleshwar Mandal, PW4- Doctor Ashok Kr.

Chatterjee, PW5- Slesh Bhandari and PW6- Dhanraj Mandal.

8. In documentary evidence filed signature of Singheswar Mandal

on the complaint of P.C.R Case No. 62 of 1985 dated 22.01.2007 exhibit-1.

The injury report of Phuleshwar Mandal exhibit-2, injury report of

Singheswar Mandal exhibit-2/1 and injury report of Govind Mandal

exhibit-2/2.

9. The statements of accused under section 313 of the Code of

Criminal Procedure (hereinafter referred to as 'Cr.PC') were recorded. All

the accused persons denied the incriminating circumstances against them

and told themselves to be innocent.

10. On behalf of accused persons in defence evidence filed certified

copy of the FIR of Case Crime No. 20 dated 16.04.1985 P.S. Mohanpur

exhibit-A, certified copy of charge-sheet in Mohanpur P.S. Case No. 20 of

1985 exhibit-B, certified copy of the judgement passed by the learned 6 Cr. Appeal (SJ) No. 196 of 2012

Judicial Magistrate, 1st Class, Deoghar in G.R. Case No. 179 of 1985, Trial

No. 95 of 1998 State vs. Rewal Mandal and five others exhibit-C and

judgment passed by the learned 2nd Additional Sessions Judge, Deoghar in

Sessions Case No. 234 of 1993/ 138 of 2001 exhibit-D.

11. The learned trial court after hearing the rival submissions of

learned APP on behalf of the State and learned counsel of the accused

passed the impugned judgment of conviction and sentence on 30 th January

2012 and convicted Birju Mandal for the offence under section 325 of IPC,

Surju @ Surya Narayan Mandal for section 323 of IPC and Ram Chandra

Mandal for 307 of IPC and sentenced the appellant no.1 Birju Mandal for

the offence under section 325 of IPC with rigorous imprisonment of six

months and a fine of Rs.5,000/- in default of payment of fine, the additional

rigorous imprisonment of 15 days was directed to undergo. Appellant no.2

Surju @ Surya Narayan Mandal for the offence under section 323 of IPC

was sentenced to undergo rigorous imprisonment for one month while the

appellant no.3 Ram Chandra Mandal for the offence under section 307 of

IPC was sentenced with rigorous imprisonment of five years and a fine of

Rs.7,000/- , in default of payment of fine further rigorous imprisonment of

one month was directed to undergo.

12. Aggrieved from the impugned judgment of conviction and

sentence dated 30.01.2012 the instant criminal appeal is preferred on behalf

of the appellants Birju Mandal, Surju @ Surya Narayan Mandal and Ram

Chandra Mandal on the grounds that the impugned judgment of conviction

is bad in the eye of law. The learned trial court had not appreciated the

evidence on record in a proper perspective. Initially the Sanha of the

occurrence was registered with the police station concerned wherein 7 Cr. Appeal (SJ) No. 196 of 2012

informant Singheswar Mandal had made allegations in regard to hurling

abuse and being assaulted by the accused Birju Mandal, Shaheb Mandal,

Surju @ Surya Narayan Mandal and Ram Chandra Mandal with lathi. While

in the complaint the informant developed the earlier story and also stated

that Ram Chandra Mandal was armed with the country made pistol and had

opened fire causing injury on the cheek near below the eye to the informant

Singheswar Mandal. The learned trial court did not take into consideration

the development made in the prosecution story by the informant from that of

information of which Sanha was registered with the police station

concerned. The impugned judgment of conviction and sentence is based on

conjectures and surmises. There is no testimony of independent witness to

support the testimony of PW1- Singheswar Mandal, PW2- Govind Mandal

and PW3- Phuleshwar Mandal. The doctor in his injury report has shown the

nature of injury simple. There is no evidence against the appellants in regard

to their intention to cause death so as to bring the alleged occurrence under

the periphery of the offence under section 307 of IPC. In this case,

investigating officer was not examined so as to contradict or corroborate the

testimony of the prosecution witnesses. The background of the prosecution

story has also been developed which was not in Sanha entry made with the

police station concerned, prior to lodging the complaint on behalf of

complainant Singheswar Mandal. The place of occurrence is also not proved

from the prosecution witness. No recovery was made and no seizure list was

prepared to that effect. The investigation was conducted in perfunctory

manner. As such prayed to allow the appeal and to set aside the impugned

judgment of conviction and sentence passed by the court below.

8 Cr. Appeal (SJ) No. 196 of 2012

13. I have heard the learned counsel for the appellants and the

learned APP on behalf of the State and perused the relevant material on

record.

14. During pendency of this appeal, it transpired that appellant

no.1 Birju Mandal died on 21.08.2016. To that effect on behalf of

prosecution the counter-affidavit was filed on 30.08.2023 on behalf of

Prem Pradeep Kumar, Sub Inspector of Police-cum-Officer In-charge

Mohanpur Police Station, District Deoghar wherein it was deposed that

appellant/convict Birju Mandal died on 21.08.2016. Death certificate

issued by the competent authority and the report of the Officer In-charge

police station concerned was annexed with this counter-affidavit on behalf

of State. Therefore, this appeal was abated against the appellant no.1

Birju Mandal because no one of his legal heir came forward to proceed

with this appeal after lapse of several years from the date of death i.e.

on 21.08.2016 under section 394 of Cr.PC.

15. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence the following point of determination

is being framed in this appeal:

(A) Whether the impugned judgment of conviction and sentence

is sustainable in the eye of law.

16. This Court avert to analyze the evidence oral and documentary

adduced on behalf of the prosecution which is reproduced hereinbelow:

16.1 On behalf of prosecution in oral evidence examined PW1-

Singheswar Mandal, this witness in his examination in chief stated that the

occurrence was of 15.04.1985 Monday night 12-1 O'clock he was sleeping

in his house and he heard the sound of falling of the stone on the thatched 9 Cr. Appeal (SJ) No. 196 of 2012

roof of his house. He raised alarm chor-chor. His brother Rewal Mandal,

Phuleshwar Mandal and the villagers Govind Mandal, Slesh Mandal,

Sahdeo, Kisun Mahra and Bishwanath Mandal all came there. These stones

were coming from the side of north west and he, his brothers and the

villagers saw that the accused Birju Mandal, Shaheb Mandal, Surju @ Surya

Narayan Mandal and Ram Chandra Mandal were pelting stones from the

double storeyed roof of their house. They were asked to come down, all the

accused came down hurling abuse and came at the door of the house of him

(informant). Ram Chandra Mandal was armed with country made pistol,

Birju Mandal, and Shaheb Mandal were armed with lathi. Phuleshwar

Mandal asked them not to hurl abuse. Birju Mandal gave a lathi blow on the

right shoulder of Phuleshwar Mandal and Shaheb Mandal gave a lathi blow

on his chest. He and Govind Mandal both came to rescue him. Surju @

Surya Narayan Mandal gave a lathi blow to Govind Mandal on his chest.

Ram Chandra Mandal opened fire with a pistol upon him (informant) which

touched the right side of his face causing pelt injury. Thereafter on raising

alarm by the villagers all the accused persons fled away. In the morning

dated 16.04.1985 at 7 O'clock he alongwith Phuleshwar Mandal and Govind

Mandal went to the police station narrated the prosecution story. They sent

them for medical examination. After medical examination, police asked

them to settle the dispute on the basis of compromise and refused to register

the FIR. They also got the thumb impression and signature of them on blank

paper. He also filed the complaint case in the court under his signature same

is exhibit-1.

In cross-examination this witness says that in Mohanpur Police

Station Sanha No. 306 dated 16.04.1985 was registered. Alongwith him 10 Cr. Appeal (SJ) No. 196 of 2012

Govind Mandal also went to the police station. Their signature and thumb

impression were taken and they were sent for medical examination. There

was no prior enmity between him and the accused persons. He has given

statement to the police that he heard the sound of pelting of the stones on the

thatched roof of his house. He raised alarm his brother and villagers were

came there. They saw the accused persons peeping from the double storeyed

roof of their house. They were asked to come down and all the accused came

at the door of his house. Ram Chandra Mandal was armed with country

made pistol, Birju Mandal, Shaheb Mandal, Surju @ Surya Narayan Mandal

were armed with lathi. Birju Mandal assaulted with lathi on the chest and

shoulder of Phuleshwar Mandal. He and Govind Mandal came to rescue,

Surju @ Surya Narayan Mandal gave a lathi blow on the chest of Govind

Mandal. Ram Chandra Mandal opened fire upon him with the country made

pistol which injured on his right side of face causing pelt injury. The right

hand of Phuleshwar Mandal was fractured. There were five to seven persons

at the place of occurrence. While ten to fifteen persons were nearby the

place of occurrence. From the place of occurrence, no empty cartridge was

recovered by him. This witness denied all the suggestions given on behalf of

defense to this witness.

16.2 PW2- Govind Mandal in his examination-in-chief

corroborated the prosecution story and also the statement given by informant

PW1- Singheshwar Mandal.

In cross-examination this witness says that Singheswar Mandal

is his cousin brother. There was a distance of 20 hands between his house

and the house of his cousin brother. Hearing the alarm of chor-chor, he had

come to the door of the house of Singheswar Mandal. He also stated that he 11 Cr. Appeal (SJ) No. 196 of 2012

did not give this statement to the investigating officer that he heard the alarm

of chor-chor and he went there taking lantern in his hand. He did not give

any statement to the police that accused were armed with lathi, danda and

Ram Chandra Mandal was armed with revolver. He did not say to police that

Phuleshwar Mandal gave blow with lathi on his chest and shoulder. He did

not say to police that Ram Chandra Mandal was assaulted with fire arm

which causing pelt injury below his eye. He did not give any empty

cartridge to the police. It is wrong to say that no occurrence took place.

16.3 PW3- Phuleshwar Mandal in his examination-in-chief also

corroborated the prosecution story and statement of the informant PW1-

Singheswar Mandal.

In cross-examination this witness says that he went alongwith

Singheswar Mandal and Govind Mandal to the police station but he did not

put his signature. Both put their signature on a blank paper. In regard to the

same occurrence Shaheb Mandal have also filed a police case against them.

He did not say to the police that Singheswar Mandal raised alarm of chor-

chor he came to the door of the house of his brother Singheswar Mandal.

Govind Mandal, Slesh Mandal, Bishwanath Mandal and Sahdeo, also came

there. The stones were pelted from the side of west wherein the house of the

accused were there. He did not say to the police that Ram Chandra Mandal

was armed with pistol and Birju was armed with lathi. Birju Mandal gave a

lathi blow on his right shoulder and chest as well. Govind Mandal came to

rescue he was also assaulted by Surju @ Surya Narayan Mandal. Ram

Chandra Mandal was assaulted by the pistol causing fire arm injury. At the

time of occurrence it was utter dark, the injury caused by the pistol injured

below the eye of Singheswar Mandal. This fire was opened by Ram Chandra 12 Cr. Appeal (SJ) No. 196 of 2012

Mandal. Everything was visible in the light of lantern. These piece of the

stones were also shown to the police. He did not say to the police that all the

accused persons had assaulted him. It is wrong to say that in order to save

themselves on the case filed against them this case was used by them.

16.4 PW4- Doctor Ashok Kumar Chatterjee in his examination-

in-chief says that he was posted in the year 1985 at Mohanpur Primary

Health Centre (P.H.C) and examined the injured Phuleshwar Mandal on

16.04.1985 at 8:45 AM and found the following injuries:

(i) Diffused swelling on the right shoulder with

tenderness 3" X 2" with dislocation of right shoulder

joint.

(ii) One bruise on the upper part of middle of chest 2"

X 1".

Opinion: Nature of injury no.1 was grievous caused by

hard and blunt object such as lathi. The nature of injury

no.2 was simple. The injury report of Phuleshwar Mandal is

in his handwriting and signature marked exhibit-2.

On 16.04.1985 at 8:45 AM he also examined Singheswar

Mandal and found following injuries:

(i) One lacerated wound on the left side of the face just

below the left eye on mandible region with inverted

margins 1" X 1/2" with blacking around the wound and

tattooing also present.

(ii) Abrasion over the nose 1/2" X 1/2".

Opinion: The injury no.1 was simple caused by the fire

arm explosive. It may be caused by country made pistol.

13 Cr. Appeal (SJ) No. 196 of 2012

Injury No.2 was simple caused by hard and blunt object

such as lathi or stones chips. The injury report of

Singheswar Mandal is in his handwriting and signature

marked exhibit-2/1.

On 16.04.1985 he also examined Govind Mandal and found

following injuries:

(i) one bruise on the left side of the chest.

Opinion: Nature of this injury was simple caused by hard

and blunt substance. This injury report is in his handwriting

and signature marked exhibit-2/2.

In cross-examination this witness says that he had received the

reference of the injured Phuleshwar Mandal from the police station

concerned. He had also given the carbon copy to Singheswar Mandal and

Govind Mandal as well and true carbon copy were prepared of the original.

Original was sent of all the injured person to the investigating officer. One

carbon copy was kept in their register. In the injury of Singheswar Mandal

there was blackening, blood was not there. Blood clot was also not there.

16.5 PW5- Slesh Bhandari in his examination-in-chief says that he

did not see the occurrence. Police had not interrogated him.

This witness was declared hostile and denied the statement

given to the investigating officer under section 161 of Cr.PC.

16.6 PW6- Dhanraj Mandal in his examination-in-chief stated that

he did not see the occurrence. This witness was also declared hostile by the

prosecution and was not interrogated. He denied the statement given to the

investigating officer under section 161 of Cr.PC.

14 Cr. Appeal (SJ) No. 196 of 2012

17. From the evidence adduced on behalf of the prosecution oral

and documentary the court while analyzing the evidence has to see (i)

whether the offecne under section 323 of IPC is made out against the

appellant Surju @ Surya Narayan Mandal? (ii) whether the offence

under section 307 of IPC is made out against the appellant Ram

Chandra Mandal ?

18. As per prosecution case the Sanha of the occurrence was

registered with the police station concerned Mohanpur District Deoghar in

regard to the occurrence of 16.04.1985 wherein the allegations are made that

in the intervening night of 16.04.1985 12:00 to 01:00 O'clock Ram Chandra

Mandal, Shaheb Mandal, Surju @ Surya Narayan Mandal and Birju Mandal

all had come to the door of the house of informant Singheswar Mandal

hurled abused to him and all had assaulted with lathi. While making the

entry of the Sanha the injury was below the eye of informant, wound was

also there ozzing blood. Govind Mandal had sustained injury on the left side

of his chest the mark of lathi was there. Both were sent for medical

examination to the local hospital. After medical examination the Case Crime

No. 23 of 1985 was registered with Mohanpur police station concerned

against the accused Ram Chandra Mandal, Birju Mandal, Surju @ Surya

Narayan Mandal and Shaheb Mandal for the offence under section 325, 323

r/w 34 of IPC. The investigating officer also filed the charge-sheet against

all the four accused Ram Chandra Mandal, Shaheb Mandal, Surju @ Surya

Narayan Mandal and Birju Mandal. The informant Singheswar Mandal had

also filed the complaint case before the learned Judicial Magistrate,

1st Class, Deoghar in P.C.R Case No. 62 of 1985 Singheswar Mandal v.

Ram Chandra Mandal, Shaheb Mandal, Surju @ Surya Narayan Mandal and 15 Cr. Appeal (SJ) No. 196 of 2012

Birju Mandal. Ultimately this complaint was also merged with the State

case Mohanpur P.S. Case No. 23 of 1985 and during trial before the

Magistrate the offence under section 307 of IPC was made out from the

evidence on record thereafter this case was committed to the court of

sessions for trial. During trial before committal of this case Shaheb Mandal

had died and the case of Ram Chandra Mandal, Surju @ Surya Narayan

Mandal and Birju Mandal was committed to the court of sessions for trial

for the offence under section 323, 325, 307 r/w 34 of IPC.

19. On behalf of prosecution out of six witnesses the five witnesses

are the witness of fact and one witness PW4 is the doctor.

20. Out of the five witnesses of the fact PW5- Slesh Bhandari,

PW6- Dhanraj Mandal both have been declared hostile because they

stated that they had not seen the occurrence. On declaring hostile, they also

denied the statement and statement given to the investigating officer under

section 161 of Cr.PC.

21. Now the testimony of the three witnesses of fact and the

testimony of one witness Dr. Ashok Kumar Chatterjee is to be

scrutinized as under:

PW1- Singheswar Mandal is the informant and injured eye

witness. PW2- Govind Mandal is also the injured eye witness

and PW3- Phuleshwar Mandal is also the injured eye witness.

So far as the testimony of PW1- Singheswar Mandal is

concerned he has thoroughly corroborated the prosecution story

as alleged in the complaint P.C.R Case No. 62 of 1985 which is

exhibit-1. There is no contradiction in the statement made

by this witness during trial and in regard to the contents of 16 Cr. Appeal (SJ) No. 196 of 2012

the complaint P.C.R Case No. 62 of 1985 exhibit-1. So far as

the contradiction which is in the Sanha which was also

made on his information with the Police Station Mohanpur

is concerned, this witness has explained in his statement that

he had narrated the whole of the occurrence to the police

since the police was influenced of the accused persons they

did not register their FIR rather got their signature and

thumb impression on the blank paper. Though this witness

admitted his signature and also of Govind Mandal and

thumb impression on the Sanha but he denied the contents

of the Sanha and vetted to the contents of the P.C.R Case

No. 62 of 1985. This witness has specifically stated that on the

intervening night at 12-1 O'clock of 15.04.1985 he heard the

sound of pelting stone on the thatched roof of his house, he

came out and raised alarm chor-chor. His brother Phuleshwar

Mandal and the other persons of the village Govind Mandal and

others attracted there. They saw that the accused Ram Chandra

Mandal, Birju Mandal, Surju @ Surya Narayan Mandal and

Shaheb Mandal had pelted the stones from their double storeyed

house and were peeping towards them. The informant asked

them to come down from the roof of their house, therefore, all

the accused persons came down from their double storeyed roof

and at the door of the house of informant hurled abuse to the

informant Ram Chandra Mandal who was armed with country

made pistol he opened the fire on the informant Singheswar

Mandal which passed touching the face of the informant 17 Cr. Appeal (SJ) No. 196 of 2012

causing pelt injury on his cheek below the eye. The accused

Birju Mandal had assaulted with the lathi to Phuleshwar

Mandal causing grievous hurt on his right shoulder whereby

joint of the right shoulder was fractured and he also gave the

injury on the chest of Phuleshwar Mandal caused by the lathi.

Govind Mandal had come for his rescue. Surju @ Surya

Narayan Mandal assaulted to Govind Mandal with lathi causing

hurt on his chest.

PW2- Govind Mandal is also the injured eye witness. In his

examination-in-chief he corroborated the whole of the

prosecution story and also corroborated the statement of

informant/PW1 Singheswar Mandal. But in his cross-

examination this witness has stated that no such statement as

given in his examination-in-chief, was given by him to the

police officer under section 161 of Cr.PC.

PW3- Phuleshwar Mandal this witness also in his

examination-in-chief thoroughly corroborated the

prosecution story as given in the P.C.R Case No. 62 of 1985

exhibit-1 and also corroborated the statement of informant

Singheswar Mandal. In cross-examination this witness also

stated he had gone to the police station alongwith Singheswar

Mandal and Govind Mandal to lodge the FIR with the police

station concerned. At 9 O'clock of day time while the police

had threatened he was not present there. Singheswar Mandal

and Govind Mandal both had stated in regard to threatening

given by the police before the doctor. He also stated that the 18 Cr. Appeal (SJ) No. 196 of 2012

police had recorded his statement on the third day of

occurrence. This witness has stated that he had stated to the

police that his brother Singheswar Mandal had raised alarm

chor-chor he reached to the house of his brother. Govind

Mandal, Slesh Mandal, Kisun, Sahdeo, Bishwanath Mandal also

attracted there. Stones were pelted by the accused persons from

their double storeyed house. They were asked to come down the

accused persons came down and hurled abuse Ram Chandra

Mandal was armed with pistol, Birju Mandal was armed with

lathi. Birju had given a lathi blow on his shoulder and Shaheb

Mandal had given lathi blow on his chest. Govind Mandal was

given lathi blow by Surju @ Surya Narayan Mandal. Ram

Chandra Mandal had caused fire arm injury with pistol to

Singheswar Mandal. Singheswar Mandal had fell down on the

spot. He had seen the country made pistol in the hand of Ram

Chandra Mandal.

22. Therefore, from the testimony of this witness PW3-

Phuleshwar Mandal the prosecution story and the statement of PW1-

Singheswar Mandal is well corroborated. So far as the testimony of

Govind Mandal is concerned though in his cross-examination this

witness became hostile, yet in his examination-in-chief he has

thoroughly corroborated the prosecution story. Therefore, his statement

given in the examination-in-chief cannot be brushed aside on being

hostile in his cross-examination.

22.1 The Hon'ble Apex Court held in "Selvaraj vs. State" (2015) 2

SCC 662:

19 Cr. Appeal (SJ) No. 196 of 2012

"19. It is settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution."

23. So far as the testimony of PW1- Singheswar Mandal and

PW2- Govind Mandal is concerned both have thoroughly corroborated

the prosecution story. The testimony of injured eye witness holds much

significance.

23.1 The Hon'ble Apex Court held in "Vijay Shankar Shinde v.

State of Maharashtra" (2008) 2 SCC 670:

"9. The trial court was not justified in holding that because PW 11 was an injured witness he may have reason to falsely implicate the accused. However, as rightly observed by the trial court and the High Court, the evidence of PWs 12 and 13 does not suffer from any deficiency. PWs 11, 12 and 13 were cross-examined at length but nothing substantial could be elicited to destroy the credibility of their version. As a matter of fact, the evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant."

24. So far as the plea raised by the learned counsel for the appellant

that these witnesses are related to each other and their testimony should not 20 Cr. Appeal (SJ) No. 196 of 2012

be relied the same is not found tenable, because merely being the relative,

the testimony of eye witness cannot be disbelieved if there is ring of truth in

the testimony of eye witnesses.

24.1. The Hon'ble Apex Court held in "Ravishwar Manjhi v. State

of Jharkhand" (2008) 16 SCC 561:

"30. Out of seven eyewitnesses, PW 7 was not believed by the courts below. PWs 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eyewitnesses were related to the deceased. However, we do not hesitate to add that only on that ground their evidences should not be disbelieved."

25. The plea raised by the learned counsel for the appellant that no

witness of public was examined while as per prosecution case the persons of

the village was present at the place of occurrence. PW2- Govind Mandal is

the villager though he is also cousin brother but non-examination of a

witness of public itself cannot give rise to adverse inference if the

testimony of injured eye witnesses is trustworthy.

25.1. The Hon'ble Apex Court in "Ashok Kr. Choudhary v. State of

Bihar" AIR 2008 SC 2436 has held that

"7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied 21 Cr. Appeal (SJ) No. 196 of 2012

upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive."

26. This ocular evidence is to be seen in view of the testimony of

PW4- Dr. Ashok Kumar Chatterjee. This witness PW4- Dr. Ashok Kumar

Chatterjee has proved the injury report of Phuleshwar Mandal exhibit-2,

injury report of Singheswar Mandal exhibit-2/1 and injury report of Govind

Mandal exhibit-2/2. This witness has stated that there were two injuries on

the body of Phuleshwar Mandal (i) Diffused swelling on the right

shoulder with tenderness 3" X 2" with dislocation of right shoulder joint

and (ii) One bruise on the upper part of middle of chest 2" X 1" and the

nature of injury no.1 Phuleshwar Mandal was grievous caused by hard

and blunt object which have fractured the joint of the shoulder of

Phuleshwar Mandal. While the injury no.2 was showed to be simple. So

far the injury of Singheswar Mandal is concerned the one lacerated

wound on the left side of his face just below the left eye on mandible

region with the inverted margin 1" X 1/2" with blackening around the

wound and tattooing also. This injury is shown simple in nature but

caused by fire arm. In injury report of Govind Mandal exhibit 2/2 there is 22 Cr. Appeal (SJ) No. 196 of 2012

only one injury bruise on the left side of his chest caused by hard and

blunt object. It was simple in nature.

27. As per testimony of PW1- Singheswar Mandal, PW2- Govind

Mandal, PW3- Phuleshwar Mandal they have stated that Birju Mandal had

given the lathi blow to Phuleshwar Mandal on his right shoulder; while

Shaheb Mandal had given the lathi blow on his chest, therefore, the injury

no.1 caused to this Phuleshwar Mandal which was grievous was caused

by Birju Mandal and injury no.2 which was simple is caused by Shaheb

Mandal. Shaheb Mandal had died during trial while Birju Mandal had

died during pendency of this appeal.

28. So far as the injury caused to Govind Mandal is concerned

as per testimony of all the three prosecution witnesses this injury was

caused by Surju @ Surya Narayan Mandal by the lathi blow it is simple

in nature. So far as the injury to Singheshwar Mandal informant is

concerned as per testimony of PW1- Singheswar Mandal, PW2- Govind

Mandal and PW3- Phuleshwar Mandal it was caused by fire arm which

passed touching the face of the informant Singheswar Mandal. This

ocular evidence is also corroborated with the medical evidence which

has been deposed by PW4- Dr. Ashok Kumar Chatterjee in exhibit-2/1.

29. As such the ocular evidence is also well corroborated with the

medical evidence.

30. The learned counsel for the appellant also raised the plea that

the empty cartridge were not recovered from the place of occurrence nor the

country made pistol was recovered by the investigating officer. The

investigating officer was also not examined on behalf of prosecution and on

this sole ground contended to acquit all the appellants.

23 Cr. Appeal (SJ) No. 196 of 2012

31. Admittedly the investigating officer was not examined on

behalf of prosecution and during trial this investigating officer has not

collected the empty cartridge, pellet from the place of occurrence nor during

investigation he recovered the pistol. On account of the latches on the part

of investigating officer the whole of the prosecution case which is based

on ocular evidence which is also corroborated with the medical evidence

cannot be brushed aside. As it is the settled law that if the case is based

on trustworthy and reliable ocular evidence not recovering any empty

cartridge or pellet from the place of occurrence and not recovering any

weapon and not sending them for examination to the forensic science

laboratory cannot said to be fatal.

31.1 The Hon'ble Apex Court held in "Mohd. Jamiludin Nasir v.

State of W.B" (2014) 7 SCC 443:

"57. As far as the contention made on behalf of the appellant that non-production of the weapon used in the attack is fatal to the case of the prosecution is concerned, the reliance placed by the learned Additional Solicitor General upon the decision in Ram Singh v. State of Rajasthan [Ram Singh v. State of Rajasthan, (2012) 12 SCC 339 : (2013) 4 SCC (Cri) 661] would meet the said contention. In paras 8 and 10, this Court has also held that the non-production of the weapon used in the attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is also rejected."

31.2. The Hon'ble Apex held in "State of Punjab v. Hakam Singh"

(2005) 7 SCC 408:

"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 24 Cr. Appeal (SJ) No. 196 of 2012

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."

31.3 So far as the contention made by the learned counsel for the

appellants that the investigating officer was not examined who was the only

witness to corroborate and contradicting the testimony of the prosecution

witnesses. Certainly the investigating officer is the such link witness who

can corroborate for contradict the testimony of the prosecution witnesses

and non-examination of investigating officer shall be fatal to the prosecution

case, for the purpose of contradicting or corroborating the testimony of

prosecution witnesses. But the prosecution case is not solely based on the

Sanha which was registered with the police station concerned

whereupon after medical examination of all the three injured

Mohanpur P.S. Case No. 23 of 1985 was registered under sections 323

and 325 of IPC. On behalf of prosecution the complaint case was also

filed which was P.C.R Case No. 62 of 1985 Singheswar Mandal v. Ram

Chandra Mandal which is exhibit-1. The contents of this complaint has

been proved by PW1- Singheswar Mandal and out of the list of the

witnesses given on behalf of prosecution the witness Govind Mandal

and Phuleshwar Mandal both have been examined alongwith

complainant Singheswar Mandal and so far as the place of occurrence is

concerned, there is no doubt in regard to the place of occurrence as the

same is the door in the front of the house of informant PW1-

Singheswar Mandal. Herein it would be pertinent to mention that the

date, time and place of occurrence cannot be said to be disputed reason

being in regard to the same occurrence the Case Crime No. 20 of 1985 25 Cr. Appeal (SJ) No. 196 of 2012

was lodged against the accused Rewal Mandal, Phuleshwar Mandal,

Singheswar Mandal, Gondali, Govind Mandal and Janardan Mandal

from the side of accused persons. In which the charge-sheet was also

filed and judgment of acquittal was also delivered by the trial court vide

order dated 28.01.1998. The FIR of Case Crime No. 20 of 1985 exhibit-A,

charge-sheet exhibit-B and judgment of certified copy exhibit-C is filed on

behalf of the accused person in defense evidence. Therefore, the date, time

and place of occurrence is admitted to the accused persons also. Herein

if both the cases which was lodged on behalf of accused person against

the persons of informant side had been tried together by the trial court

then only question was to be considered who was the aggressor; but the

same has become redundant since the Case Crime NO. 20 of 1985 has

been separately decided by the trial court and in which all the accused

persons were acquitted. Keeping in view the facts and circumstances and

oral and documentary evidence on record the non-examination of the

investigating officer in this case is not found fatal to prosecution case.

31.4. The Hon'ble Apex Court held in "Bihari Rai v. State of Bihar"

(2008) 15 SCC 778:

"15. So far as the non-examination of one of the IOs is concerned, it is to be noted that the officer in question had only conducted the inquest. The inquest report was exhibited without any objection and there was no challenge to the correctness of the report. That being so, non-examination of the officer in question does not in any way corrode the credibility of the prosecution version."

31.5. The Hon'ble Apex Court also in "Mano v. State of Tamilnadu"

(2007) 13 SCC 795:

"16. Even if the recovery of the weapons as claimed was after a long period and those were not sent for forensic 26 Cr. Appeal (SJ) No. 196 of 2012

examination that does not in any way dilute the evidentiary value of the prosecution version."

31.6. Therefore in view of the ocular evidence adduced on behalf

of the prosecution which is corroborated with medical evidence and

keeping in view the amalgamation of the complaint case with the police

case the non-examination of the investigating officer is not found fatal to

the prosecution case.

32. Now from the evidence adduced on behalf of prosecution is to

be seen that what offence is made out against the surviving appellants

Surju @ Surya Narayan Mandal and Ram Chandra Mandal ?

33. As per prosecution evidence Surju @ Surya Narayan Mandal

had assaulted with lathi to Govind Mandal. This fact is corroborated with

the ocular evidence of PW1- Singheswar Mandal, PW2- Govind Mandal

and PW3- Phuleshwar Mandal and same is also corroborated with the

medical evidence PW4- Dr. Ashok Kumar Chatterjee. As per testimony of

PW4- Dr. Ashok Kumar Chatterjee, this Govind Mandal had sustained chest

injury caused by the hard and blunt object and it was simple in nature.

Therefore, against Surju @ Surya Narayan Mandal the offence under

section 323 of IPC is proved beyond reasonable doubt by the

prosecution.

34. So far as the offence against Ram Chandra Mandal is concerned

as per testimony of PW1- Singheswar Mandal, PW2- Govind Mandal, PW3-

Phuleshwar Mandal it is found that it was Ram Chandra Mandal who had

opened fire with the country made pistol which passed touching the face of

informant Singheswar Mandal who sustained injury on his face near below

the eye. The ocular evidence of all the three prosecution injured witnesses is

also corroborated with the medical evidence. PW4- Dr. Ashok Kumar 27 Cr. Appeal (SJ) No. 196 of 2012

Chatterjee has proved the injury report of Singheswar Mandal exhibit-2/1 in

which he has stated that one lacerated wound on the left side of face just

below left eye on mandible region with inverted margins 1" X 1/2" with

blackening around the wound and tattooing also. PW4- Dr. Ashok Kumar

Chatterjee has opined that this injury was caused by fire arm may be by

country made pistol and it was simple in nature.

34.1 Therefore, it is proved that it was appellant/convict Ram

Chandra Mandal who had caused fire arm injury to PW1 Singheswar

Mandal. This injury was simple in nature. Herein it is to be seen whether

the appellant Ram Chandra Mandal had the intention or had the

knowledge that the injury caused by him was likely to cause his death.

Herein it would be relevant to reproduce the section 307 of IPC which reads

as under:

"307. Attempt to Murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life-convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]"

34.2 The Hon'ble Apex Court held in "S.K. Khaza v. State of

Maharashtra" 2023 Livelaw SC 715:

"8. As rightly submitted by the learned counsel appearing on behalf of the respondent - State, merely because the injuries sustained by the complainant - Mohammad Khan Pathan (PW-2) were very simple in nature, that would not absolve the appellant/accused from being convicted for 28 Cr. Appeal (SJ) No. 196 of 2012

the offence under Section 307 of the IPC. What is important is an intention coupled with the overt act committed by the appellant/accused. In the instant case, it was proved by cogent evidence that the appellant/accused had tried to assault the complainant - Mohammad Khan Pathan (PW-2) with Gupti and that too on his head. Though the complainant received injury on his right shoulder while avoiding blow on his head, from the blunt part of the Gupti, such an overt act on the part of the appellant/accused would be covered by the offence punishable under Section 307 of the IPC. There being no infirmity pointed out by the learned counsel for the appellant in the impugned judgment and order of the High Court, we are of the opinion that the present appeal deserves to be dismissed."

34.3. From the bare perusal of the section 307 of IPC it is found that

opening fire by Ram Chandra Mandal with the country made pistol

showed his knowledge that the opening fire caused by him might cause

the death or grievous hurt to injured Singheswar Mandal. It also shows

not only the intention but also the knowledge on the part of Ram

Chandra Mandal that opening fire with country made pistol was likely

to cause death or grievous hurt. From the ocular evidence adduced on

behalf of prosecution which is corroborated with medical evidence shows

that Singheswar Mandal also sustained fire arm injury, though it was simple

in nature. From the overall evidence adduced on behalf of the prosecution

on this point the offence under section 307 of IPC is also made out

against the appellant/convict Ram Chandra Mandal.

35. On the quantum of sentence the learned counsel for the

appellants has argued that the occurrence is of 15.04.1985 and earlier they

have been facing the inquiry of Case Crime No. 23 of 1985 and P.C.R. Case

No. 62 of 1985 from the very year 1985 thereafter they had been facing the 29 Cr. Appeal (SJ) No. 196 of 2012

sessions trial since 2006 and were convicted and sentenced vide order dated

30.01.2012. Thereafter they have been facing the appeal since 2012

continuously.

35.1 The appellant Surju @ Surya Narayan Mandal was sentenced

by the trial court for the charge under section 323 of IPC with rigorous

imprisonment of one month for the offence under section 323 of IPC and

while the appellant Ram Chandra Mandal was convicted for the offence

under section 307 of IPC and sentenced with rigorous imprisonment of 5

years and a fine of Rs.7,000/-, in default of payment of fine he was directed

to undergo further one month rigorous imprisonment. The appellant had

served out the sentence of 25 days during inquiry or trial period and

contended to release the appellant Surju @ Surya Narayan Mandal after

admonition and to release the appellant Ram Chandra Mandal with the

sentence which he had served out and on payment of the fine imposed, if

any.

36. The learned APP for the State opposed this plea raised on behalf

of the appellant on the right point of quantum.

37. Keeping in view the length of facing inquiry, trial and

appeal from the very year 1985 and nature of the offence committed by

Surju @ Surya Narayan Mandal under section 323 of IPC this Court is

of the considered view that upholding the conviction of Surju @ Surya

Narayan Mandal for the offence under section 323 of IPC has passed

by the trial court, the sentence is modified from one month rigorous

imprisonment to admonition to the appellant Surju @ Surya Narayan

Mandal in exercise of power conferred to the High Court under section

360 (4) of Cr.PC.

30 Cr. Appeal (SJ) No. 196 of 2012

38. So far as the appellant Ram Chandra Mandal is concerned he

was convicted by the trial court for the charge under section 307 Part-II of

IPC and he was sentenced by the trial court with rigorous imprisonment of

five years and a fine of Rs.7,000/-, in default of payment of fine further

rigorous imprisonment of one month was directed to undergo. This

appellant Ram Chandra Mandal has also been facing the inquiry, trial

and appeal since year 1985 and he has served out the sentence of

25 days.

38.1. Keeping in view the nature of injury inflicted while opening fire

arm this appellant/convict to PW1- Singheswar Mandal the sentence of

five years is reduced to three years and the fine of Rs.7,000/- which was

inflicted by the trial court.

38.2. The Hon'ble Apex Court held in "Ram Naresh v. State of UP"

(2010) 15 SCC 252:

"10. It has been finally submitted by Mr Kishore that as the incident had happened in the year 1978 and as 32 years had passed on some reduction in the sentence may be considered. We find merit in this plea. We, accordingly, reduce the sentence of the appellant from five to three years."

39. Accordingly, this criminal appeal deserved to be allowed partly.

40. Criminal Appeal is, hereby, partly allowed.

41. The conviction of appellant no. 2 Surju @ Surya Narayan

Mandal is upheld for the charge under section 323 of IPC and the sentence

passed by the trial court from one month is modified as to release the

appellant Surju @ Surya Narayan Mandal after due admonition by

exercising power under section 360(4) of Cr. PC. While the conviction of

the appellant/convict Ram Chandra Mandal for the charge under section

307 Part-II of IPC is upheld and the sentence passed by the trial court from 31 Cr. Appeal (SJ) No. 196 of 2012

5 years and a fine of Rs.7,000/- is modified as three years and a fine of

Rs.7,000/-.

42. Both the appellants were on bail during pendency of this appeal.