Jharkhand High Court
Niranjan Mandal Son Of Late Kutu Mandal vs The State Of Jharkhand on 28 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:12701-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
----
Criminal Appeal (D.B.) No.228 of 2002
WITH
Criminal Appeal (D.B.) No.238 of 2002
Criminal Appeal (D.B.) No.239 of 2002
Criminal Appeal (D.B.) No.336 of 2002
Criminal Appeal (D.B.) No.338 of 2002
Criminal Appeal (D.B.) No.383 of 2002
Criminal Appeal (D.B.) No.384 of 2002
Criminal Appeal (D.B.) No.385 of 2002
AND
Criminal Appeal (D.B.) No.401 of 2002
(Against the judgment of conviction and order
of sentence dated 21.05.2002 passed by
learned Additional Sessions Judge, Rajmahal,
in Sessions Trial No. 278 of 1995)
----
In Criminal Appeal (D.B.) No.228 of 2002
1. Niranjan Mandal son of late Kutu Mandal, resident of Malchitola,
P.S.-Rajmahal, District- Sahebganj.
2. Shankar Mandal son of Howrah Mandal, resident of Vill. Tek
Bethan, P.S. Rajmahal, Distt. Sahebganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.238 of 2002
1. Parmanand Mandal @Moil Mandal @Mondal Mandal son of
Chandra Mandal resident of village Manglahat, P.S.-Rajmahal,
District-Sahibganj
2. Niren Mandal son of Late Sukhdeo Mandal resident of village
Gartolla, P.S.-Rajmahal, District- Sahibganj
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.239 of 2002
Nandan Mandal son of Late Chandra Mandal resident of Village
Mangalhat, P.S.-Rajmahal, District- Sahibganj.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.336 of 2002
Bengwa Pasi son of Doman Choudhary resident of Village- Nayabasti
Mangalhat, P.S- Rajmahal, District-Sahibganj.
... ... Appellant
-: 1 :-
2025:JHHC:12701-DB
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.338 of 2002
Sikandar Mandal son of Late Fagu Mandal resident of Village-Munna
Patal, P.S.- Rajmahal, District- Sahibganj.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.383 of 2002
Suresh Mandal son of Batoran Mandal resident of Mangalhat English
P.S.- Rajmahal, District-Sahibganj
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.384 of 2002
1. Horish Mandal @ Hore Mandal son of Kathu Mandal
2. Hiralal Mandal son of Kathu Mandal
Both resident of Village Gartlab P.S.- Rajmahal, District Sahibganj
3. Nitai Mandal son of Kishori Mandal resident of Village Gartalab,
P.S.-Rajmahal, District- Sahibganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.385 of 2002
Ram Kishun Mandal, son of Arjun Mandal, resident of Village-Tekbatuan,
P.S.- Rajmahal, District- Sahebganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
----
In Criminal Appeal (D.B.) No.401 of 2002
Ganga Ram Mandal son of late Golak Mandal, resident of Village- Tak
Bathan, P.S.- Raj Mahal, District- Sahibganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
----
PRESENT
SRI ANANDA SEN, J.
SRI PRADEEP KUMAR SRIVASTAVA, J.
----
For the Appellants : Mr. Sankalp Goswami, Advocate
[In Cr.A(DB)No. 228/2002]
-: 2 :-
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Mr. Hemant Kr. Shikarwar, Advocate
Mr. Abhishek Kumar, Advocate
Mr. Amandeep, Advocate
Mr. Akshay Animesh, Advocate
Ms. Priyanka Singh, Advocate
[In Cr.A. (DB) Nos.238, 239,
336, 338, 383/2002]
For the Respondents: Mr. Pankaj Kr. Mishra, A.P.P
[In Cr.A(DB)Nos. 228, 383/2002]
Ms. Nehala Sharmin, Spl. PP
Mr. Vineet Kumar Vasistha, Spl. PP
[In Cr.A. (DB) Nos.385/2002]
Mr. Sanjay Kr. Srivastava, A.P.P
[In Cr.A. (DB) Nos.401/2002]
----
JUDGMENT
RESERVED ON 11.12.2024 PRONOUNCED ON 28.04.2025
Per Ananda Sen, J.: These Criminal Appeals arise out of the judgment of
conviction and order of sentence dated 21st day of May, 2002 passed by
the Additional Sessions Judge, Rajmahal in Sessions Case No. 278 of
1995, whereby and whereunder learned Additional Sessions Judge,
Rajmahal, convicted all the appellants under Sections 302/149, 148 and
201 of the Indian Penal Code and sentenced them to undergo
imprisonment for life under section 302/149 of the Indian Penal Code, and
to undergo imprisonment of two years under section 148 of the Indian
Penal Code and also to undergo imprisonment of five years each under
section 201 of the Indian Penal Code.
Further the appellant Nandan Mandal [Cr. Appeal No. 239 of
2002], appellant Suresh Mandal [Cr. Appeal (DB) No. 383 of 2002] and
appellant Ganga Ram Mandal [Cr. Appeal (DB) No. 401 of 2002] were
also convicted and sentenced to undergo rigorous imprisonment for
seven years for the offence under section 27 of the Arms Act.
2. The case of the prosecution is at the instance of the informant
Tuso Devi who is the wife of the deceased Jeevan Mandal. She in her
fardbeyan stated that on 02.01.1995 her husband Jeevan Mandal at
about 3.30 P.M left the house saying that he is going for Kanhaiya Sthan.
At about 4:00 P.M she heard from the strangers that two persons have
been detained for murder in Mangalhat. On hearing this, she went to
Mangalhat and saw that the appellant Nandan Mandal had fired gunshot
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on her husband. After that the informant laid herself down on her husband
and requested the accused persons not to kill her husband. Hiralal
Mandal and Nitai Mandal separated her from her husband and Suresh
Mandal fired in the abdomen of her husband. Shrikant Mandal and
Gangaram Mandal also fired at her husband and Shankar Mandal abused
her. Nitai Mandal assaulted her husband by lathi. Sochin Mandal was also
killed by gunshot and both the aforesaid persons died instantly. After the
gunshots, people fled from the scene, and Subodh Mandal arrived. The
informant lost consciousness, and when she woke, she saw the bodies of
her husband, Jiwan Mandal, and Sochin Mandal being dragged toward
the river by Bengua Pasi, Surish Mandal, Jugal Mandal, and others.
3. On the basis of the aforesaid fardbeyan, Rajmahal P.S.Case
No. 01 of 1995 was registered under section 302/34 of the Indian Penal
Code and section 27 of the Arms Act at PS-Rajmahal, District-Sahibganj
against all the appellants. The police after completing investigation,
submitted one chargesheet against 13 persons and subsequently the
second chargesheet was submitted against 3 persons showing one
Prakash Mandal as dead. After taking cognizance of the offence, case
was committed to the Court of Sessions. Charges were framed against
the appellants and the same were read over and explained to the
appellants, to which they denied and claimed to be tried. Thus, the
appellants were put on trial.
4. The prosecution, in order to prove the charges, had examined
13 witnesses, who are as under: -
P.W.1 Naresh Mandal
P.W.2 Subodh Mandal
P.W.3 Jogen Mandal
P.W.4 Nandan Mandal
P.W.5 Chand Muni Bewa
P.W.6 Tuso Devi alias Tusiya Devi (informant)
P.W.7 Rekha Devi
P.W.8 Dr. N.K. Jha
P.W.9 Dr. Ashok Kumar Pandey
P.W.10 Dr. Sanjay Kumar Chaurasia
P.W.11 Kami Kant Mishra
P.W.12 Lakshmi Pramanik
P.W.13 Dipak Kumar Mandal
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In addition to the aforesaid witnesses, the prosecution had
also produced the following documents, which were marked as exhibits:-
Ext. 1 Postmortem Report of Jeevan Mandal
Ext.2 Postmortem report of Sochin Mandal
Ext.3 Injury Report
Ext.4 Formal F.I.R.
Ext.5 Endorsement
Ext.6 Fardbeyan
Ext.7 Case diary on Para 4, 5, 6, 10, 11, 12,
22, 23, 24, 30, 31, 37
5. After closure of the evidence of the prosecution, the
appellants were examined and their statements were recorded under
Section 313 of the Code of Criminal Procedure. The defence had also
examined eight witnesses, who are as under: -
D.W.1 Saroj Kumar Saha
D.W.2 Pankaj Kumar Mandal
D.W.3 Naresh Hazari
D.W.4 Sukra Mandal
D.W.5 Dinesh Sah
D.W.6 Surendra Prasad Mahto
D.W.7 Narad Chandra Saha
D.W.8 Manilal Mandal
The defence had also produced the following documents,
which were marked as exhibits:-
Ext. A Certified copy of ordersheet dated
20.10.1993
Ext. B Certified copy of Final Form of
Ext. C Certified copy of statement of Anju
Devi U/s. 164 Cr.P.C.
Ext. D Certified copy of chargesheet in
Rajmahal P.S. Case No.249 of 1995
Ext. E Certified copy of Chargesheet
6. The Trial Court after hearing the arguments of the parties and
considering the evidence and materials on record, by judgment of
conviction and order of sentence dated 21st day of May, 2002 convicted
and sentenced the appellants as stated hereinbefore at paragraph 1.
7. Learned counsel appearing for the appellants argued that the
Trial Court has failed to take into consideration that no witnesses have
stated the names of Niranjan Mandal and Niren Mandal. Learned counsel
further contended that no independent witnesses have been examined in
this case and all the witnesses are interested witnesses. Learned counsel
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further argued that the accused had never intended to kill the deceased
and there was no common object to kill the deceased. Learned counsel
further contended that the Investigating Officer has not been examined in
this case. It was further argued by the learned counsel for the appellants
that the place of occurrence was not established by the prosecution. They
also contended that the prosecution had also failed to show any motive
behind the crime.
8. Learned counsel appearing for the State argued that the
motive in this case is of no significance. The eyewitnesses have
supported the prosecution case. The incident had occurred in broad
daylight, during which two individuals, Jeevan Mandal and Sochin
Mandal, were murdered in the presence of witnesses, and their bodies
were dragged towards the Ganga river by the accused. The FIR also
mentions that Jeevan Mandal and Sochin Mandal were being assaulted
by the accused and they were killed. The accused could not establish the
prejudice, if any, caused due to non-examination of the investigating
officer.
9. In order to consider the case of the appellants, in the light of
the arguments of the parties, we have gone through the records of the
case and the evidence available on record.
10. From the statements of prosecution witnesses, it is observed
that -
PW 1- Naresh Mandal has stated that while he was returning
from Mangalhat after having snacks, this witness and Nandan
Mandal (son of Ramo Mandal) were surrounded by the
miscreants namely, Nandan Mandal (son of Chander Mandal),
Shashikant Mandal, Bengu Pasi, Suresh Mandal, Hiralal
Mandal, Ramkishun Mandal, Gangaram Mandal and others.
Miscreants started assaulting them (this witness and Nandan
Mandal) with but of the gun. Accused were demanding
Rangdari, which was refused. Meanwhile Jeevan and Sachin
came there and they asked the accused as to why they are
assaulting without any reason. Thereafter, the accused
persons fired on Jeevan and Sachin. Nandan Mandal had
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fired on Sochin and Jeevan Mandal was fired by Srikant
Mandal, Bengu Pasi, Suresh Mandal, Hiralal Mandal. Ram
Kisun Mandal and Gangaram Mandal also fired on Jeevan
and Sochin. Both the deceased Jeevan and Sochin died,
whereafter, the accused persons dragged their dead body to
the banks of Ganga river. This witness identified all the
accused persons in Court. This witness had also stated that
they had suffered injury for which they were treated at
Rajmahal Referral Hospital.
PW 2 - Subodh Mandal has stated that on the date of
occurrence enroute to Mangalhat, when he reached
Durgasthan, he saw that Nandan and Naresh Mandal were
being assaulted by appellants Nandan Mandal, Srikant
Mandal, Suresh Mandal, Bengua Pasi, Ramkishun Mandal,
Gangaram Mandal, Sikandar Mandal, Hirwa Mandal, Nitai
Mandal, Parmanand Mandal, Prakash Mandal, Shrish Mandal.
Jeevan and Sochin intervened and asked as to why they are
assaulting. Nandan Mandal fired on Jeevan Mandal. Srikant
fired on Jeevan. Bengua Pasi also fired on Sochin. Suresh
also fired on Sochin Mandal by pistol. Ramkishun also fired on
Sochin. Hirwa Mandal fired on Jeevan by countrymade pistol.
Thereafter the accused persons were dragging the deceased
persons towards the Ganga River, but as the villagers
reached there, they left them there. Both the deceased had
died. He stated that accused Kishan Mandal and Prakash
Mandal have died. He identified all the accused persons in
Court.
PW 3 - Jogen Mandal has stated that on the date of
occurrence at about 3-4 p.m. evening, when he was going to
duty, reaching at Mangalhat, he saw that Srikant Mandal,
Bengua Pasi, Suresh Mandal, Gangaram Mandal, Ramkishun
Mandal, Sikandar Mandal, Hiralal Mandal, Nitai Mandal,
Shrish Mandal were assaulting Naresh Mandal and Nandan
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Mandal. All the assailants were armed with iron pistol and big
gun in their hands. Nandan Mandal and Srikant were having
big guns. Meanwhile Jeevan and Sochin Mandal intervened,
whereafter the assailants leaving Nandan and Naresh,
surrounded Jeevan and Sochin Mandal and fired on them by
gun. Nandan Mandal fired on Jeevan Mandal. Srikant also
fired on Jeevan Mandal. Suresh Mandal also fired on Jeevan
Mandal by small pistol. Bengua Pasi fired on Sochin by pistol,
Gangaram Mandal fired on Sochin Mandal by pistol, Kishun
Mandal fired on Sochin Mandal by pistol. Nitai Mandal had
fired on Jeevan Mandal by pistol. When Jeevan Mandal and
Sochin Mandal died there, assailants Nitai, Hiralal, Bengua
Pasi, Sikandar, Suresh Mandal, Ram Kishun Mandal, Ganga
Ram Mandal started dragging them towards Ganga River.
When this witness asked them to leave the dead body, Srikant
Mandal fired on this witness, but it did not hit him. He
identified the accused persons in the Court.
PW 4 - Nandan Mandal has stated about the occurrence in
the same manner as P.W.1 Naresh Mandal has stated.
PW 5 - Chand Muni Bewa stated that accused persons Ram
Kishun Mandal, Hiralal Mandal, Nitai Mandal, Gangaram
Mandal, Bengwa Pasi, Nandan Mandal, Jugal Mandal
assaulted Nandan Mandal (PW 4) and Naresh Mandal. This
witness further stated that Suresh Mandal fired on Jeevan
Mandal. He further stated that Nandan Mandal fired on Sochin
Mandal when Sochin and Jeevan Mandal stopped him from
assaulting Nandan Mandal (PW 4) and Naresh Mandal. He
further stated that he was not able to recall the names of other
miscreants who were present during the incident. The witness
doesn't mentions any name but states that the accused
persons dragged Jeevan Mandal and Sochin Mandal to
Ganga Ghat. This witness has identified the accused persons
in the Court.
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PW 6 - Tuso Devi stated that Ram Kishun Mandal,
Gangaram Mandal and Nitai Mandal fired on Jeevan Mandal.
She further stated that Sikander Mandal, Parmanand Mandal,
Jugal Mandal and Bengwa Pasi fired on Sochin Mandal. She
further stated that Hiralal Mandal and Nitai Mandal pulled and
separated her from her husband Jeevan Mandal when she
tried to save her husband. The witness saw the accused
Nandan Mandal firing with his gun on Jeevan Mandal which
hit his head on the left side and he (Jeevan) fell down. She
further stated that she saw the accused persons dragging the
bodies of Jeevan and Sochin Manal towards the Ganga Ghat.
The witness mentions that when Subodh Mandal (PW 2) tried
to stop the accused persons, they fired a shot on him but he
was saved by hiding behind the tree. The witness has
identified the accused persons in court.
PW 7 - Rekha Devi- The witness stated that the Ram Kishun
Mandal, Sikander Mandal, Hiralal Mandal, Nitai Mandal,
Gangaram Mandal, Bengwa Pasi, Nandan Mandal,
Parmanand Mandal, Jugal Mandal and Suresh Mandal were
dragging the dead bodies of Jeevan Mandal and Sochin
Mandal towards Ganga river. The witness stated that her son
told her that the Ram Kishun Mandal, Hiralal Mandal,
Gangaram Mandal, Nitai Mandal, Bengwa Pasi, Nandan
Mandal, Parmanand Mandal and Horish Mandal had
murdered her husband and Jeevan Mandal.
PW 8- Dr. N.K Jha had conducted postmortem of the dead
body of Jeevan Mandal. He found the following ante-mortem
injuries on the person of the deceased: -
(i) Wound of entry of ½" x ¼" deep upto thorasic
cavity below right axile 4 inches below the
auxiliary cavity, oval in shape, morging inverted,
covering clothes are torn over the wound;
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(ii) Wound of exit 1 ½" x 1 ½" deep in thorasic cavity
on left side on lateral chest wall, 4 ½" below the
auxiliary cavity, margins are everted and torn;
(iii) Wound of entry ½" x ¼" deep in abdominal cavity
in right lumbore region in mid-auxiliary line;
(iv) Multiple perforation of gut and mesenteric tree;
(v) Blood inside abdominal and chest cavity
(vi) One sharp cut injury over right posterior chest wall
measuring 2" x 1" x 1"
(vii) One lacerated wound below left shoulder joint
measuring 2 ½" x 1" x 1 ¼"
(viii) Blood clots over face
He has opined that injury no.(i) is wound of entry
and injury No.(ii) is its corresponding wound of injury No.(i)
both caused by firearms. Injury no.(iii) is also caused by
firearms. Injury no.(iv) & (v) also caused by firearms. Injury
No.(vi) caused by sharp cutting instrument. Injury No.(vii)
caused by hard, blunt substance.
Cause of death was due to haemorrhage and
shock caused by firearms.
The postmortem report was marked as Exhibit 1.
PW 9 - Dr. Ashok Kumar Pandey conducted postmortem of
the dead body of Sochin Mandal. He found the following ante
mortem injuries on the body of the deceased:-
(i) A circular wound ½ c.m. in diameter 2" right to the 4th
thorasic vertebra on back with a white area of tattoing,
this was wound of entry;
(ii) A circular wound 1.1 c.m. in diameter 3" lateral to the
joint 3rd rib with costal cartilage (right side of the chest),
lung tissue protruding through it, this was wound of exit,
the whole thorasic cavity was found full of blood, right
lung was collapsed and lacerated alongwith pulmonary
vessels;
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(iii) One ½ c.m. circular wound 4 inches lateral to the
second lumber vertebra with wide area of tattoing,
wound of entry
He opined that the abdominal cavity was full of
blood. Intestine had seven perforations. Bullet shaped
metallic foreign body was recovered from the abdominal
cavity.
Cause of death was due to cardio respiratory
failure due to haemorrhage and shock due to the firearm
injuries.
PW 10 - Dr. Sanjay Kumar Chaurasia examined the injuries
of Naresh Mandal. He found the following injuries on his
person: -
(i) One lacerated wound measuring 2" x ½" skin deep over
left parital area of skull;
(ii) One bruise of 1" diameter over right molar prominence
brown colour;
(iii) One bruise over radial aspect of right forearm
measuring 1 ½" x ½" light brown colour
He opined that thw weapon used hard and blunt
object such as may be butt of pistol or butt or gun or rifle or
revolver. Nature of injuries all simple.
The injury report was marked as Exhibit 3.
P.W.11 Kami Kant Mishra is a formal witness.
PW 12 - Lakshmi Pramanik and PW 13 - Dipak Kumar
Mandal were the salon and betel shop owner at Mangalhat.
They did not mention names of any of the accused but had
only heard sounds of firing and commotion.
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11. The testimony of defence witnesses, who were examined by
the accused persons, is as under: -
D.W.1 Sanjay Kumar Saha has stated that he saw Naresh
Mandal, Nandan Mandal near a shop when both the deceased
came there and they started arguing, but on hearing the
sound of fire shot, this witness entered into his house.
D.W.2 Pankaj Kumar Mandal has stated that on hearing
hulla when he came, he came to know that the deceased
were killed.
D.W.3 Naresh Hazari had reached the place of occurrence
after the incident.
D.W.4 Sukra Mandal, D.W.5 Dinesh Sah, D.W.6 Surendra
Prasad Mahto, D.W.7 Narad Chandra Saha and D.W.8
Manilal Mandal have not stated anything important about the
occurrence.
Thus, from the evidence of the defence witnesses, we do not
find anything significant that could come to the rescue of the appellants in
any manner.
12. Before proceeding further, it needs to be mentioned that
P.W.4 is named as Nandan Mandal and one of the accused is also
Nandan Mandal, who is appellant in Cr. Appeal (DB) No. 239 of 2002.
13. The main conviction is under Section 302/149 of the Indian
Penal Code. The appellants were also convicted under Section 148 and
201 of the Indian Penal Code. Section 302 of the Indian Penal Code is
punishment for murder. Murder has been defined in Section 300 of the
Indian Penal Code, which reads as under: -
300. Murder. - Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or
2ndly. - If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or
3rdly. - If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
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inflicted is sufficient in the ordinary course of nature to
cause death, or
4thly. - If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
comits such act without any excuse for incurring the risk
of causing death or such injury as aforesaid.
14. Section 149 of the Indian Penal Code reads as follows: -
149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object. - If an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of
that offence.
Classification of Offence. - The offence under this section,
according as offence is cognizable or non-cognizable and
according as offence is bailable or non-bailable, non-
compoundable and triable by Court by which the offence is
triable.
15. As per the aforesaid provision, there has to be an unlawful
assembly, a person has to be member of that assembly and the object of
the assembly has to be common or the members of the assembly knew to
be committed in prosecution of that object.
16. The Hon'ble Supreme Court, in the case of Nitya Nand
versus State of Uttar Pradesh and Another reported in (2024) 9 SCC
314 while dealing with conviction under Section 302 of the Indian Penal
Code read with Section 149 of the Indian Penal Code and also under
Section 148 of the Indian Penal Code, at paragraph 43 has dealt with the
ingredients of Section 149 of the Indian Penal Code, which reads as
under: -
43. This brings us to the pivotal section which is Section
149 IPC. Section 149 IPC says that every member of an
unlawful assembly shall be guilty of the offence committed
in prosecution of the common object. Section 149 IPC is
quite categorical. It says that if an offence is committed by
any member of an unlawful assembly in prosecution of the
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common object of that assembly, or such as the members
of that assembly knew to be likely to be commiktted in
prosecution of that object, every person who, at the time of
committing of that offence, is a member of the said
assembly; is guilty of that offence. Thus, if it is a case of
murder under Section 302 IPC, each member of the
unlawful assembly would be guilty of committing the
offence under Section 302 IPC.
Further, at paragraph 44 of Nitya Nand (supra), the Hon'ble
Supreme Court has referred to the case of Krishnappa versus State of
Karnataka [(2012) 11 SCC 237]. Paragraph 44 of Nitya Nand (supra)
reads as under: -
44. In Krishnappa v. State of Karnataka, this Court while
examining Section 149 IPC held as follows: (SCC p. 243,
paras 20-21)
"20. It is now well-settled law that the provisions of Section
149 IPC will be attracted whenever any offence committed
by any member of an unlawful assembly in prosecution of
the common object of that assembly, or when the
members of that assembly knew that offence is likely to be
committed in prosecution of that object, so that every
person, who, at the time of committing of that offence is a
member, will be also vicariously held liable and guilty of
that offence. Section 149 IPC creates a constructive or
vicarious liability of the members of the unlawful assembly
for the unlawful acts committed pursuant to the common
object by any other member of that assembly. This
principle ropes in every member of the assembly to be
guilty of an offence where that offence is committed by any
member of that assembly in prosecution of common object
of that assembly, or such members or assembly knew that
offence is likely to be committed in prosecution of that
object.
21. The factum of causing injury or not causing injury
would not be relevant, where the accused is sought to be
roped in with the aid of Section 149 IPC. The relevant
question to be examined by the court is whether the
accused was a member of an unlawful assembly and not
whether he actually took active part in the crime or not."
17. The question, which is relevant is whether all the accused
were member of unlawful assembly and whether they actually took part in
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the crime or not. The aforesaid provision, i.e., Section 149 of the Indian
Penal Code is not a separate offence but creates a vicarious liability of all
the members of the unlawful assembly of the acts done in common
object.
18. Section 141 of the Indian Penal Code defines unlawful
assembly. It says that an assembly of 5 or more persons is designated as
unlawful assembly, if the persons composing that assembly is to commit
an illegal act by means of criminal force. Section 141 reads as under: -
141. Unlawful assembly. - An assembly of five or more
persons is designated an "unlawful assembly", if the
common object of the persons composing that assembly
is-
First. - To overawe by criminal force, or show of criminal
force, the Central or any State Government or Parliament
or the Legislature of any State, or any public servant in the
exercise of the lawful power of such public servant; or
Second. - To resist the execution of any law, or of any
legal process; or
Third. - To commit any mischief or criminal trespass, or
other offence; or
Fourth. - By means of criminal force, or show of criminal
force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
Fifth. - By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to
do.
Explanation. - An assembly which was not unlawful when
it assembled, may subsequently become an unlawful
assembly.
19. Considering the aforesaid provision of law, we have to decide
at first as to whether the assembly was unlawful or not.
20. We have already noted the evidence of the prosecution
witnesses. From the evidence we find that P.W.1 Naresh Mandal, P.W.
Subodh Mandal P.W.3 Jogin Mandal, P.W. 4 Nandan Mandal, P.W. 5
Chand Many Bewa and P.W.6 Tuso Devi are eye witnesses to the said
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occurrence. Further, we find that P.W.4 Nandan Mandal himself is an
injured witness as he was assaulted by the accused persons. He stated
that P.W.1 Naresh Mandal was also assaulted. This P.W.1 Naresh
Mandal has also stated that he was also assaulted. Thus, their presence
at the place of occurrence cannot be doubted.
21. P.W.10 is the doctor, who examined the injured witness P.W.1
Naresh Mandal. He found simple injury on him caused by hard and blunt
substance by but of pistol or a gun. P.W.1 Naresh Mandal has also stated
that he was assaulted. He also narrated that he was assaulted by but of
gun. Being an injured witness, his testimony has to be kept at a higher
pedestal. His statement cannot be brushed aside. This witness P.W.1 had
stated that miscreant-assailants namely Ram Kishun Mandal, Suresh
Mandal, Sikander Mandal, Gangaram Mandal, Bengwa Pasi, Hiralal
Mandal and Nandan Mandal had assaulted him and Nandan Mandal. He
also stated that Sachin and Jeevan came to save them, on which the
accused persons fired on them and they dragged the body of Sochin and
Jeevan towards river bank. This witness also identified the accused
persons in the dock. He stated that Nandan Mandal had fired on Sochin.
22. P.W.2 Subodh Mandal also stated that Naresh Mandal and
Nandan Mandal were being assaulted. He also stated that Ram Kishun
Mandal, Suresh Mandal, Horish Mandal, Hiralal Mandal, Sikander
Mandal, Gangaram Mandal, Bengwa Pasi and Parmanand Mandal were
there as members of assembly and they assaulted Nandan Mandal
(P.W.4) and Naresh Mandal (P.W.1). When Jeevan and Sochin came to
save P.W.1 and P.W.4, accused Nandan Mandal and Srikant Mandal
fired on Jeevan and accused Ram Kishun Mandal, Suresh Mandal,
Horish Mandal, Hiralal Mandal, Bengwa Pasi fired on Sochin and the
accused persons dragged the dead body of both the deceased towards
Ganga river, but when the villagers arrived, they left the dead body.
23. P.W.5, who is the mother of the deceased Jeevan was also
present at the spot of occurrence and was selling vegetables. She also
takes name of these accused persons to be present there as members of
the assembly.
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24. P.W.6, who is the informant in this case and the wife of the
deceased Jeevan Mandal, has stated that she tried to save her husband,
but the accused-appellants separated her from her husband and fired on
him. She has narrated the entire occurrence in her deposition in a clear
and specific manner, leaving no room for any doubt.
25. Thus, all the eye witnesses have stated presence of accused
persons, namely, Ram Kishun Mandal [Cr. Appeal (DB) No.385 of 2002],
Suresh Mandal [Cr. Appeal (DB) No. 383 of 2002], Sikander Mandal [Cr.
Appeal (DB) No. 338 of 2002], Horish Mandal, Hiralal Mandal, Nitai
Mandal [all three appellants in Cr. Appeal (DB) No.384 of 2002], Ganga
Ram Mandal [Cr. Appeal (DB) No. 401 of 2002], Bengwa Pasi [Cr. Appeal
(DB) No. 336 of 2002], Nandan Mandal [Cr. Appeal No.239 of 2002],
Parmanand Mandal [Cr. Appeal (DB) No. 238 of 2002], as members of
the assembly.
26. From the evidence led by the prosecution, it is clear that the
aforesaid accused-appellants were present at the place of occurrence
and they were demanding rangdari and assaulting P.W.1 and P.W.4 and
when the two deceased tried to intervene, they were attacked, killed and
thereafter their body was being dragged towards Ganga river. Admittedly,
strength of assembly was more than 5 persons. Further, the assembly
was doing some illegal work, i.e., were demanding rangdari / extortion
from P.W.1 and P.W.4 and they were assaulting them. Thus, there is no
doubt that they had a common object to commit an illegal act of
demanding extortion money. When the two deceased tried to intervene,
the accused persons assaulted them also and shot them to death. At
least three of the accused persons, namely, Nandan Mandal, Suresh
Mandal and Ganga Ram Mandal were armed with fire arms. Thus, we find
no illegality in application of Section 149 of the Indian Penal Code in this
case. Though the specific allegation of assault by firearms is only by three
accused, but the others were part of unlawful assembly, thus, they are
also liable to be held guilty. The common object was to demand rangdari,
which again got converted to murder. This is evident from the fact that the
deceased were shot dead and the members of the assembly facilitated
the murder. Since this is a case of murder under Section 302 of the Indian
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Penal Code, each member of unlawful assembly would be guilty of
committing offence under Section 302 of the Indian Penal Code.
27. P.W.8 Dr. N.K. Jha and P.W.9 Dr. Ashok Kumar Pandey had
conducted the postmortem over the dead body of Jeevan Mandal and
Sochin Mandal, respectively. P.W.8 stated that deceased Jeevan Mandal
sustained firearm injury and also injuries by sharp cutting weapon or a
hard and blunt substance. Similarly, P.W.9 Dr. Ashok Kumar Pandey also
found firearm injuries on the body of Sochin Mandal. Thus, evidence of
these two witnesses suggests that the death is homicidal.
28. From the postmortem report and the evidence of the doctor,
who had conducted the postmortem, i.e., P.W.8 and P.W.9, it is clear that
the death of both the persons are homicidal death caused by firearm
injuries.
29. We have already held that the assembly was of more than 5
persons and it was unlawful and why the same was unlawful has also
been discussed above as also the unlawful activities, they were indulging
has also been narrated. Now, it has to be seen, who are the persons who
are part of unlawful assembly.
30. The eye witnesses, P.W.1 Naresh Mandal, P.W.2 Subodh
Mandal, P.W.3 Jogen Mandal, P.W.4 Nandan Mandal, P.W.5 Chand Muni
Bewa and P.W.6 Tuso Devi alias Tusiya Devi have all stated about the
presence of the accused persons namely, Parmanand Mandal @ Moil
Mandal @ Mondal Mandal [Cr. Appeal (DB) No.238 of 2002], Nandan
Mandal [Cr. Appeal (DB) No.239 of 2002], Bengwa Pasi [Cr. Appeal (DB)
No.336 of 2002], Sikandar Mandal [Cr. Appeal (DB) No.338 of 2002],
suresh Mandal [Cr. Appeal (DB) No.383 of 2002], Horish Mandal @ Hore
Mandal, Hiralal Mandal, Nitai Mandal [all three appellants in Cr. Appeal
(DB) No.384 of 2002], Ram Kishun Mandal [Cr. Appeal (DB) No.3885 of
2002] and Ganga Ram Mandal [Cr. Appeal (DB) No. 401 of 2002] as
members of the assembly, which is unlawful.
Thus, since from the evidence, it is clear that they are the part
of the unlawful assembly, these persons are held guilty of committing
offences under Sections 302/149 of the Indian Penal Code.
2025:JHHC:12701-DB
31. These appellants have also been convicted for the offence
under Section 148 of the Indian Penal Code. Section 148 of the Indian
Penal Code reads as under: -
148. Rioting, armed with deadly weapon. - Whoever is
guilty of rioting, being armed with a deadly weapon or with
anything which, used as a weapon of offence, is likely to
cause death, shall be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both.
Classification of Offence. - The offence under this section
is cognizable, bailable, non-compoundable and triable by
Magistrate of the first class.
32. From the evidence of the eye witnesses, we find that Section
148 of the Indian Penal Code is applicable in this case against the
appellants abovenamed and they have rightly been convicted and
sentenced for the offence under Section 148 of the Indian Penal Code.
33. Similarly, we also find that there are sufficient materials and
evidence on record to substantiate the conviction and sentence of the
appellants for the offence under Section 201 of the Indian Penal Code, as
they were trying to dispose the bodies by dragging the same to Ganga
river, but failed as villagers gathered.
34. So far as the conviction and sentence of appellants Nandan
Mandal [Cr. Appeal (DB) No.239 of 2002], Suresh Mandal [Cr. Appeal
(DB) No.383 of 2002] and Gangaram Mandal [Cr. Appeal (DB) No.401 of
2002] under Section 27 of the Arms Act is concerned, we find that the
same is substantiated by the evidence of eye witnesses and that of the
medical evidence. We do not find anything to arrive at a contrary finding
or to interfere with the conviction and sentence of the appellants,
abovenamed, under Section 27 of the Arms Act.
35. So far as conviction and sentence for offence under Section
302 of the Indian Penal Code is concerned, we find that all the eye
witnesses, namely, P.W.1 Naresh Mandal, P.W.2 Subodh Mandal, P.W.3
Jogen Mandal, P.W.4 Nandan Mandal, P.W.5 Chand Muni Bewa and
P.W.6 Tuso Devi alias Tusiya Devi have stated that the accused-
appellants, namely, Nandan Mandal [Cr. Appeal (DB) No.239 of 2002],
Suresh Mandal [Cr. Appeal (DB) No.383 of 2002] and Ganga Ram
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Mandal [Cr. Appeal (DB) No.401 of 2002] have shot dead the deceased
and other accused-appellants, namely, Parmanand Mandal @ Moil
Mandal @ Mondal Mandal [Cr. Appeal (DB) No.238 of 2002], Bengwa
Pasi [Cr. Appeal (DB) No.336 of 2002], Sikandar Mandal [Cr. Appeal (DB)
No.338 of 2002], Horish Mandal @ Hore Mandal, Hiralal Mandal, Nitai
Mandal [all three appellants in Cr. Appeal (DB) No.384 of 2002], Ram
Kishun Mandal [Cr. Appeal (DB) No.3885 of 2002] had actively facilitated
them in committing murder of the deceased. Out of these six eye
witnesses, two of them, namely, P.W.1 and P.W.4 are injured witnesses
and P.W.6 is the informant, whose husband is one of the deceased. All
the eye witnesses have narrated the manner of offence in similar manner
and there is nothing on record to brush aside their testimony or even raise
any finger of doubt over their testimony.
36. So far as the argument by the learned counsel for the
appellants that the prosecution has failed to prove any motive behind
committing murder of the deceased is concerned, now it is well settled
that when there is direct evidence, which is worth relying upon, motive
loses its significance. The Hon'ble Supreme Court in the case of Madan
versus State of Uttar Pradesh reported in 2023 SCC OnLine SC 1473
while referring to various earlier judgments, has held as under: -
65. The next contention raised on behalf of the appellants
is that the motive attributed by the prosecution is a very
weak motive. It is submitted that the motive attributed is on
account of political enmity due to elections which were
held two and half years prior to the date of incident. The
motive is specifically brought on record in the evidence of
Lokendra (PW-1) and Irshad Khan (PW-7). Harpal Singh
(PW-10) also deposed about the enmity between the
families of Ishwar and Ram Kishan. In any case, the
present case is a case of direct evidence. It is a settled law
that though motive could be an important aspect in a case
based on circumstantial evidence, in the case of direct
evidence, the motive would not be that relevant. In this
respect, we may gainfully refer to the judgment of this
Court in the case of State of Andhra Pradesh v. Bogam
Chandraiah, which reads thus:
"11. .....Another failing in the judgment is that the
High Court has held that the prosecution has failed
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to prove adequate motive for the commission of the
offence without bearing in mind the well settled rule
that when there is direct evidence of an acceptable
nature regarding the commission of an offence the
question of motive cannot loom large in the mind of
the court. ......"
66. This Court, in the case of Darbara Singh v. State of
Punjab, has observed thus:
"15. So far as the issue of motive is concerned, it is
a settled legal proposition that motive has great
significance in a case involving circumstantial
evidence, but where direct evidence is available,
which is worth relying upon, motive loses its
significance......."
67. A gain in the case of Subodh Nath v. State of Tripura,
this Court has observed thus:
"16. .......The learned counsel for the appellants is
right that the prosecution has not been able to
establish the motive of Appellant 1 to kill the
deceased but as there is direct evidence of the
accused having committed the offence, motive
becomes irrelevant. Motive becomes relevant as an
additional circumstance in a case where the
prosecution seeks to prove the guilt by
circumstantial evidence only."
Thus, even if the prosecution has failed to bring on any motive
behind the commission of murder by the accused-appellant, in view of the
direct evidence by the six eye witnesses, whose testimony are worth of
relying, we find that all these accused-appellants, namely, Parmanand
Mandal @ Moil Mandal @ Mondal Mandal [Cr. Appeal (DB) No.238 of
2002], Nandan Mandal [Cr. Appeal (DB) No.239 of 2002], Bengwa Pasi
[Cr. Appeal (DB) No.336 of 2002], Sikandar Mandal [Cr. Appeal (DB)
No.338 of 2002], suresh Mandal [Cr. Appeal (DB) No.383 of 2002], Horish
Mandal @ Hore Mandal, Hiralal Mandal, Nitai Mandal [all three appellants
in Cr. Appeal (DB) No.384 of 2002], Ram Kishun Mandal [Cr. Appeal (DB)
No.3885 of 2002] and Ganga Ram Mandal [Cr. Appeal (DB) No. 401 of
2002] have rightly been convicted and sentenced for offence under
Section 302 of the Indian Penal Code.
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36. From the evidence of the eye witnesses in this case, one thing
is clear that none of the witnesses have stated anything or taken the
names of Niranjan Mandal, Shankar Mandal [Both appellants in Cr.
Appeal (DB) No. 228 of 2002] and Niren Mandal [appellant No.2 in Cr.
Appeal (DB) No.238 of 2002]. Thus, we are inclined to acquit these two
appellants in absence of any material or evidence against them showing
their involvement in the crime.
37. In the result, judgment of conviction and order of sentence
dated 21st day of May, 2002 passed in Sessions Case No.278 of 1995
qua the appellants, namely, Parmanand Mandal @ Moil Mandal @
Mondal Mandal [Cr. Appeal (DB) No.238 of 2002], Nandan Mandal [Cr.
Appeal (DB) No.239 of 2002], Bengwa Pasi [Cr. Appeal (DB) No.336 of
2002], Sikandar Mandal [Cr. Appeal (DB) No.338 of 2002], suresh Mandal
[Cr. Appeal (DB) No.383 of 2002], Horish Mandal @ Hore Mandal, Hiralal
Mandal, Nitai Mandal [all three appellants in Cr. Appeal (DB) No.384 of
2002], Ram Kishun Mandal [Cr. Appeal (DB) No.385 of 2002] and Ganga
Ram Mandal [Cr. Appeal (DB) No. 401 of 2002], is upheld. The bail bonds
in respect of these appellants are cancelled and they are directed to
surrender before the Court below to serve the remaining part of their
sentence. The Trial Court is directed to take all steps for their
arrest/surrender to serve the remaining part of their sentence.
The appellants, namely, Niranjan Mandal, Shankar Mandal
[both appellants in Cr. Appeal (DB) No. 228 of 2002] and Niren
Mandal [appellant No.2 in Cr. Appeal (DB) No.238 of 2002] are
acquitted in absence of any material or evidence against them
showing their involvement in the crime. The judgment of conviction
and order of sentence dated 21st day of May, 2002 passed in
Sessions Case No.278 of 1995 qua these appellants is set aside.
Since these three appellants are already on bail, they are set free
from the liabilities of bail bonds and so are their bailers.
Criminal appeals, i.e., Cr. Appeal (DB) No.238 of 2002 [qua
Parmanand Mandal @ Moil Mandal @ Mondal Mandal], Cr. Appeal (DB)
No.239 of 2002, Cr. Appeal (DB) No.336 of 2002, Cr. Appeal (DB) No.338
of 2002, Cr. Appeal (DB) No.383 of 2002, Cr. Appeal (DB) No.384 of
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2002, Cr. Appeal (DB) No.3885 of 2002 and Cr. Appeal (DB) No. 401 of
2002 are dismissed.
Cr. Appeal (DB) No. 228 of 2002 [qua both the appellants
Niranjan Mandal and Shankar Mandal] and Cr. Appeal (DB) No.238 of
2002 [qua the appellant Niren Mandal only] are allowed.
Pending interlocutory applications, if any, stand disposed of.
(Ananda Sen, J.)
Pradeep Kumar Srivastava, J: I agree.
(Pradeep Kumar Srivastava, J.)
High Court of Jharkhand, Ranchi
Dated 28/04/2025
NAFR /Kumar/ Cp 03.
