Jharkhand High Court
Against The Judgment And Order Of ... vs The State Of Jharkhand on 18 August, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Neutral Citation No. ( 2025:JHHC:24017-DB )
Criminal Appeal (DB) No. 181 of 2011
[Against the judgment and order of conviction and sentence dated
28.01.2011 (sentence passed on 31.01.2011) passed by Shri Sanjay
Kumar Chandhariyavi, learned 3rd Addl. Sessions Judge, (F.T.C.),
Jamtara in S.T. No. 160A/1999]
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Biseshwar Mandal @ Visheshwar Mandal, S/o Late Jhari
Mandal, R/o Village Siyatand, P.O. & P.S.- Narayanpur,
District- Jamtara. .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
For the State : Mrs. Nehala Sharmin, Spl. P.P.
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C.A.V. ORDER
Per Rongon Mukhopadhyay, J.
Heard Mr. A.K. Kashyap, learned Senior Counsel
for the appellant and Mrs. Nehala Sharmin, learned Spl. P.P. for
the State.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 28.01.2011 (sentence
passed on 31.01.2011) passed by Shri Sanjay Kumar
Chandhariyavi, learned 3rd Addl. Sessions Judge, (F.T.C.),
Jamtara in S.T. No. 160A/1999, whereby and whereunder, the
appellant has been convicted for the offences punishable u/s
302/149/148/452 of the IPC and has been sentenced to undergo
imprisonment for life along with a fine of Rs. 500/- for the offence
u/s 302/149 IPC and in case of default in payment of fine to
undergo further S.I. for 15 days, 01-year S.I. for the offence u/s
148 of the IPC, 02 years S.I. along with a fine of Rs. 200/- for the
offence u/s 452 of the IPC and in case of default in payment of fine
to undergo S.I. for 10 days. All the sentences were directed to run
concurrently.
3. The prosecution case arises out of the fardbeyan of
Purni Devi recorded on 19.11.1998, in which, it has been stated
that on the same day Bisheswar Mandal, Dineshwar Mandal,
Gurusai Mandal, Aklu Mandal all armed with farsa, Beni Mandal,
and Pati Mandal both armed with lathi entered into the house of
the informant and caught hold of Dhankistu Mandal, the husband
of the informant who was playing marbles with his son. Gurusai
Mandal had assaulted the husband of the informant with a farsa
on head while Pati Mandal assaulted the informant on her leg with
lathi. Dhankistu Mandal managed to free himself but he was
accosted by all the accused persons who took him near the house
of Bisheswar Mandal where Bisheswar Mandal assaulted
Dhankistu Mandal on his head with farsa and the other accused
persons also committed assault upon him. Bisheswar Mandal was
goading others to do away with the life of Dhankistu Mandal. As a
result of the concerted assault the husband of the informant died
at the spot. When Haribol Mandal the brother-in-law of the
informant came to save Dhankistu Mandal he was also subjected
to assault. It has been alleged that Jalsi Devi, Beni Devi, Mursi
Devi had assaulted the informant with fists and legs and were not
allowing the informant to take away the dead body.
Based on the aforesaid allegations Narayanpur P.S.
Case No. 104/1998 was instituted. On completion of investigation
charge sheet was submitted and after cognizance was taken the
case was committed to the Court of Sessions where it was
registered as S.T. No. 160A/1999. Charge was framed against the
accused u/s 148, 452, 302/149, 307/149 of the IPC which was
read over and explained to him in Hindi to which he pleaded not
guilty and claimed to be tried.
4. The prosecution has examined as many as ten
witnesses in support of its case.
5. P.W.1 (Purni Devi) is the informant and the wife of
the deceased who has stated that the incident had taken place on a
Thursday about five and a half years back. She was in her house
and so were her husband Dhankistu Mandal and her son Pawan.
When Dhankistu Mandal was going to have a bath Bisheswar
Mandal, Gurusai Mandal, Aklu Mandal, Dineshwar Mandal, Beni
Mandal and Pati Mandal entered into her house and demanded
meat and rice from her husband but her husband showed his
inability to meet such demand due to shortage of money. At this,
Gurusai Mandal assaulted on the head of her husband with a farsa
and blood started oozing out from the wound. When she caught
hold of her husband Pati Mandal had assaulted her with a lathi
which resulted in her finger getting fractured. When she loosened
her grip over her husband he was taken away by the accused
persons. Her husband was taken towards the house of Bisheswar
Mandal where he was subjected to assault by all the accused
persons. She has stated that Bisheswar Mandal was threatening to
finish off her husband. Her husband died at the spot. Her brother-
in-law Haribol Mandal came running to the place of occurrence
and asked her how everything happened at which Taklu Mandal,
Narayan Mandal and Jagdish Mandal assaulted Haribol with farsa
on hand after which Haribol fled from the said place. She had
started crying by holding on to her husband and Jalsi Devi, Nanki
Devi, Beni Devi and Mangai Devi caught hold of hair and started
dragging her. When an alarm was raised other persons came and
the Police also arrived. The Police had recorded her fardbeyan.
In cross-examination, she has deposed that she
was with her husband when the incident had taken place. The
accused persons had entered into her house and committed
assault on the head of her husband with farsa. She had not
become unconscious. When the villagers arrived, the accused
persons fled away. Her brother-in-law had arrived after the
accused persons had fled away. The villagers had not assembled at
that point of time. Haribol fled away as soon as he was assaulted.
She stays in the house and does not know the villagers. She has
deposed that before her marriage was solemnized with Dhankistu
Mandal she was married to Bahadur Mandal. She had heard that
her husband was an accused in a murder case. No quarrel had
taken place inside her house between her husband and the
accused persons. She and her husband had raised alarm when the
accused persons had entered inside the house. Her husband was
given a farsa blow on the head by Gurusai inside the house and no
one else had committed assault there. There are several houses
adjacent to the place where the assault had taken place.
6. P.W.2 (Gujar Mandal) has stated that he was in his
house when he heard a commotion coming from the courtyard of
Dhankistu Mandal. He came out and stood on the alley where he
saw Dhankistu being dragged by Gurusai Mandal, Beni Mandal,
Patidev Mandal, Aklu Mandal, Dineshwar Mandal and Bisheshwar
Mandal. Dhankistu was taken near the house of Bisheswar Mandal
and was assaulted by the accused persons who had farsa and lathi
in their possession. His aunt Purni Devi had arrived after
Dhankistu Mandal fell down on account of the assault. Purni Devi
was also assaulted by the wives of Bisheswar, Gopal and Amit
Mandal and the daughter of Bisheswar by catching hold of her
hair. When Haribol Mandal came to intervene, he was assaulted on
his right hand with a farsa by Taklu Mandal, Narayan Mandal and
Jagdish Mandal. Rameshwar Mandal had gone to the Police station
after which the Police came and recorded the fardbeyan of Purni
Devi. He has proved his signature as well as the signature of
Ramchander Mandal and Chunmun Mandal upon the fardbeyan
which have been marked as Exhibits- 1, 1/1 and 1/2.
In cross-examination, he has deposed that he was
standing in the Kulhi at a distance of 20 hands from his house. He
had not made any attempt to stop the fight. The assault had
continued for fifteen minutes. He had seen the assault for fifteen
minutes but did not raise any alarm. He did not even converse with
his aunt. During the entire period of assault not a single villager
had arrived. He had heard that the father of Dhankistu Mandal
was convicted in a murder case. When a cry of alarm was raised,
he was in his house. He had not seen any other person. Haribol
Mandal had arrived after Dhankistu was assaulted.
7. P.W.3 (Pawan Kumar Mandal) has stated that he
was playing marbles when Bisheswar, Gurusai and Aklu had come
and Gurusai had assaulted his father on his head with a farsa. His
father was dragged towards the Kulhi where his father was
assaulted by all the accused persons with lathi and farsa. He had
rushed back to seek assistance but by that time his father was
dead.
In cross-examination, he has deposed that at the
time of the assault he was not a school going child. He was
admitted in school when he was aged five years. He has stated
before the Police that Bisheswar Mandal had also assaulted his
father with a farsa. When the assault was being committed none of
the villagers had arrived and the villagers had come after the
accused persons had fled away. When his father was being dragged
out, he understood that the accused persons are intending to kill
his father. He and his mother had gone to call the relatives and by
the time they returned he had found his father dead.
8. P.W.4 (Haribol Mandal) and P.W.5 (Bhagiya Devi)
did not support the case of the prosecution and were declared
hostile by the prosecution.
9. P.W.6 (Chandramuni Mandal) has stated that he
was in his house when he heard a commotion and when he went to
the source of commotion, he had seen Dhankistu Mandal lying
dead. Besides the dead body Purni Devi, the wife of Dhankistu
Mandal was present. He has proved his signature as well as the
signature of Ramchander Mandal on the inquest report which have
been marked as Exhibit-2 and 2/1 respectively.
In cross-examination, he has deposed that he had
reached the place of occurrence at 4:30 P.M.
10. P.W.7 (Ramchander Mandal) has stated that he had
gone to take bath near the well and when he returned, he found a
fight in progress. Gurusai Mandal, Taklu Mandal, Narayan Mandal
and Bisheswar Mandal were committing assault upon Dhankistu
Mandal who died due to the assault and he had left for the Police
station to inform the Police about the incident. The Police had
come and recorded the fardbeyan of his sister-in-law Purni Devi, in
which, he had also put his signature. He had also signed on the
inquest report.
In cross-examination, he has deposed that he was
returning after having a bath when he had seen the incident from a
distance of 2-3 feet. When Haribol Mandal came to intervene, he
was assaulted on his hand by the accused persons. He was
standing and watching the assault. About 30-35 persons had
assembled at the place of occurrence. The distance from his house
to the well is about 10 feet. About 30 persons had assembled at the
place where the fight was going on. The distance from the well to
the place of occurrence is about 20 feet. There are several houses
in between the well and the place of occurrence. He had not let out
any cry of alarm.
11. P.W.8 (Sita Devi) has stated that she was in her
house cooking rice when she heard some commotion coming from
the side of Kulhi. She saw Gurusai, Bisheswar, Aklu, Narayan and
Taklu Mandal assaulting Dhankistu Mandal with lathi and farsa.
Due to the assault Dhankistu fell down. Her husband had gone to
the Police station after which the Police came and took away the
dead body of Dhankistu Mandal. Her statement was not recorded
by the Police.
In cross-examination, she has deposed that there
was no dispute between the accused and Dhankistu. She later on
says that a quarrel had taken place in the month of Vaishakh. She
had come out of the house and had seen the quarrel at Kulhi. At
that point of time several villagers had also assembled. Nobody
intervened to stop the quarrel. The accused persons had committed
the assault and had fled away. The duration of the assault was 1-2
minutes.
12. P.W.9 (Dr. Ashok Kumar) was posted as a Medical
Officer at Jamtara Block Office who has proved the post-mortem
report prepared by Dr. Baliram Prasad Gupta, Medical Officer, Sub
Divisional Hospital, Jamtara and which has been marked as
Exhibit-3. The injury reports of Haribol Mandal and Purni Devi has
also been prepared by Dr. Baliram Prasad Gupta and they have
been proved and marked as Exhibit-4 and 4/A respectively.
In cross-examination, he has deposed that the
post-mortem was not conducted in his presence.
13. P.W. 10 (Subash Mandal) has proved the fardbeyan
which has been marked as Exhibit-6, the formal FIR as Exhibit-5
and the inquest report as Exhibit-7.
14. The statement of the accused was recorded u/s 313
Cr.P.C., in which, he has denied his complicity in the commission
of murder of Dhankistu Mandal.
15. The defence has examined one witness in support
of its case.
16. D.W.1 (Harihar Mandal) has stated that Dineshwar
Mandal was admitted in Popular Nursing Home from 19.11.1998 to
20.11.1998.
17. It has been submitted by Mr. A.K. Kashyap, learned
Senior Counsel for the appellant that the prosecution has failed to
prove its case against the appellant. There has been exaggeration
in the evidence of the prosecution witnesses with respect to the
involvement of the accused. The appellant has been implicated due
to previous enmity. The Investigating Officer has not been
examined and even the Doctor conducting the post-mortem has
also not been examined which has caused prejudice to the defence.
The relevant questions were not put to the appellant u/s 313
Cr.P.C. and this has further decimated the case of the prosecution.
18. Mrs. Nehala Sharmin, learned Spl. P.P. for the
State has submitted that there are several eye-witnesses to the
occurrence who had given a vivid description of the murderous
assault upon the husband of the informant and the role played by
the appellant in committing assault as well as instigating others to
finish off Dhankistu Mandal.
19. We have heard the learned counsel for the
respective sides and have also perused the Trial Court Records.
20. A concerted assault was committed upon
Dhankistu Mandal the husband of the informant by the appellant
and the other accused persons resulting in his death. The
sequence of events as depicted by P.W.1 (Informant) is of the
accused persons entering into the house of the informant,
assaulting her husband on head with a farsa, dragging him
towards the house of the appellant and finally snuffing out the life
of Dhankistu Mandal. In the fardbeyan the informant had stated
about the appellant also assaulting her husband with a farsa on
head but in her evidence during trial she has named Gurasai
Mandal as the initiator of the assault followed by general
allegations against all. P.W.1, P.W.2, P.W.3, P.W.7 and P.W.8 claim
themselves to be the eye-witnesses but there seems to be major
contradictions in their evidence with respect to the manner of
assault and their conduct. P.W.1 has stated about witnessing the
entire episode of assault and when her brother-in-law Haribol
Mandal had arrived after the assault had taken place, he was also
subjected to assault with farsa by Taklu Mandal, Narayan Mandal
and Jagdish Mandal. Haribol Mandal has been examined as P.W.4
and he has been declared hostile by the prosecution. The presence
of P.W.1 throughout the period of assault has been discarded by
P.W.3 the son of P.W.1 who in his cross-examination has deposed
that when his father was being dragged, he and P.W.1 had rushed
to inform their relatives and by the time they had returned his
father was already dead. P.W.1 has also stated about she being
pushed and subjected to assault and so was Haribol Mandal but
such assault has been attributed to the other accused persons and
not the present appellant. P.W.8 claims to have seen the assault
and she has also stated about several villagers assembling at the
spot and the presence of the villagers has been echoed by her
husband P.W.7. However, P.W.1, P.W.2 and P.W.3 have given a
different version to the effect that none of the villagers were present
when the assault had taken place. In fact, the presence of P.W.2,
P.W.7 and P.W.8 also seems to be doubtful as neither P.W.1 nor
P.W.3 have taken their names. Even if it is assumed that P.W.1,
P.W.7 and P.W.8 had witnessed the assault their conduct leaves a
lot to be desired. Instead of seeking assistance or raising alarm
they remained as mute spectators for reasons best known to them.
The evidence of P.W.1, P.W.7 and P.W.8 have thus created a doubt
about their status of being eye-witnesses. As we have noticed above
the evidence of P.W.1 and P.W.3 are at variance with respect to
having witnessed the entire incident of assault.
21. The other factor of the case is the statement of the
appellant recorded u/s 313 Cr.P.C. There has been a generalized
form of questioning with respect to the assault and there is no
question put regarding the incident which is said to have occurred
in front of the house of the appellant. Even the assault with farsa
on head of the deceased in the house of the deceased as noted in
the 313 Cr.P.C statement is a misnomer as no such allegation has
been leveled against the appellant and the only person to have
committed such assault is Gurusai Mandal. The appellant has
been prevented from putting forward his explanation which has
caused him prejudiced.
22. In the case of "Raj Kumar Alias Suman v. State (NCT
of Delhi)" reported in (2023) 17 SCC 95, it has been held as follows:
"22. The law consistently laid down by this Court can be
summarised as under:
22.1. It is the duty of the trial court to put each material
circumstance appearing in the evidence against the accused
specifically, distinctively and separately. The material
circumstance means the circumstance or the material on the basis
of which the prosecution is seeking his conviction.
22.2. The object of examination of the accused under Section 313
is to enable the accused to explain any circumstance appearing
against him in the evidence.
22.3. The Court must ordinarily eschew material circumstances
not put to the accused from consideration while dealing with the
case of the particular accused.
22.4. The failure to put material circumstances to the accused
amounts to a serious irregularity. It will vitiate the trial if it is
shown to have prejudiced the accused.
22.5. If any irregularity in putting the material circumstance to the
accused does not result in failure of justice, it becomes a curable
defect. However, while deciding whether the defect can be cured,
one of the considerations will be the passage of time from the date
of the incident.
22.6. In case such irregularity is curable, even the appellate court
can question the accused on the material circumstance which is
not put to him.
22.7. In a given case, the case can be remanded to the trial court
from the stage of recording the supplementary statement of the
accused concerned under Section 313CrPC.
22.8. While deciding the question whether prejudice has been
caused to the accused because of the omission, the delay in
raising the contention is only one of the several factors to be
considered."
23. On an overall conspectus of the case as noted
above, we come to the conclusion that the prosecution has failed to
prove its case beyond all reasonable doubt and consequently we set
aside the judgment and order of conviction and sentence dated
28.01.2011 (sentence passed on 31.01.2011) passed by Shri
Sanjay Kumar Chandhariyavi, learned 3rd Addl. Sessions Judge,
(F.T.C.), Jamtara in S.T. No. 160A/1999.
24. This appeal is allowed.
25. Since the appellant is in custody he is directed to
be released immediately and forthwith if not wanted in any other
case.
26. Pending I.As., if any, stands closed.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
High Court of Jharkhand at Ranchi
Dated, the 18th day of August, 2025.
A. Sanga /-
