Patna High Court
Mani Mandal vs The State Of Bihar on 8 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.712 of 2016
Arising Out of PS. Case No.-61 Year-1989 Thana- NAYA RAM NAGAR District- Munger
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Mani Mandal, Son of Karan Singh, Resident of Naya Tola Patam, P.S. - Naya
Ram Nagar, District-Munger
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Suresh Prasad Singh, Advocate
Mr. Subodh Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 08-01-2024
1. We have heard Mr. Suresh Prasad
Singh assisted by Mr. Subodh Kumar, the learned
Advocates for the appellant and Mr. Dilip Kumar Sinha,
the learned APP.
2. The sole appellant has been held guilty
for the offence under Sections 302/34 of the Indian
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
2/12
Penal Code vide judgment dated 27.05.2016, passed
by the learned Sessions Judge, Munger in connection
with Sessions Trial No. 529 of 1990, arising out of
Naya Ram Nagar P.S. Case No. 61 of 1989. By order
dated 31.05.2016, he has been sentenced to undergo
imprisonment for life, to pay a fine of Rs. 10,000/- and
in default of payment of fine, to further suffer
imprisonment for three months.
3. Though many persons were made
accused in this case but the appellant only survived to
face the Trial.
4. The Trial Court after having examined
11 witnesses on behalf of the prosecution, convicted
and sentenced the appellant as aforesaid.
5. The FIR was lodged by Bharat Mandal,
brother of the deceased (Chandar Mandal), on
26.08.1989
alleging that in the night intervening
between 25th and 26th of August, 1989 he and
Amrendra Kumar Mandal (P.W. 1), Raj Kumar Mandal
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
(P.W. 4) and Abhimanyu Prasad Singh @ Manu (P.W.
9) were talking on the roof-top and waiting for his
brother/deceased to come. He was scheduled to come
from a work place where he worked in the night shift.
Early in the morning, after one train had stopped at the
rail-road crossing somewhere near the house of the
informant (P.W. 5), he heard a sound of firing. Since he
knew about his brother's programme of coming back
home by the same train and he was also aware that his
brother had enmity with people in the village, he
suspected some mishap.
6. He along with others including P.Ws. 1,
4 and 9, referred to above, came out of his house only
to find from a distance that two of the accused persons
had caught the deceased while the appellant and
another fired from their weapons, killing him. Later, the
accused persons left the P.O. while firing in order to
safely effect their escape.
7. After about few hours, P.W. 5 is said to
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
have gone to the police station to report about the
occurrence.
8. Hence the FIR.
9. The dead body was put to post-mortem
examination when the Doctor/P.W. 9 (Dr. K.K.
Bajpaiyee) found the body ridden with three wounds of
entry. The deceased had died of gun-shots.
10. The Trial Court appears to have solely
relied upon the deposition of Bharat Mandal (P.W. 5)
and Meena Devi (P.W. 7) to record the finding of guilt
against the appellant.
11. We have found from the deposition of
P.W. 5 that it is not worthy of complete reliance. We
say so for the reason that his version at the Trial has
not been supported by Amrendra Kumar Mandal and
Raj Kumar Mandal, who were present at the time of
occurrence and had accompanied Bharat Mandal to the
place from where they saw the deceased being shot at.
12. Both the afore-noted witnesses, viz.,
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
Amrendra Kumar Mandal and Raj Kumar Mandal,
though have confirmed the story of the deceased having
been shot at in the early hours of 26.08.1989, but did
not claim to identify anybody as the marauders. In fact,
Raj Kumar Mandal (P.W. 4) was a guest in the house of
Bharat Mandal and was related to him and the
deceased, both, in a direct way.
13. Had he seen any one of the assailants,
he would not have backed out in not naming them
before the Trial Court.
14. It thus appears that Bharat Mandal,
only in order to avenge the earlier enmity with the
appellant, has named him as one of the assailants of
the deceased.
15. The wife of the deceased, viz., Meena
Devi though claims to have seen the occurrence but her
deposition does not inspire confidence for the reason
that there is no reference in the FIR made by Bharat
Mandal that she had also accompanied the
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
informant/P.W. 5, P.W. 1 and P.W. 9 to the place from
where they spotted the deceased being shot dead.
16. Rest all other witnesses except P.W. 9
have been tendered at the Trial.
17. The FIR is sought to be proved by Raj
Kumar Singh (P.W. 11), who is the Advocate's clerk.
18. It appears from the records that the
case remained pending before the Trial Court for nearly
three decades. The cognizance in the case was taken on
08.02.1990 and was committed to the Court of
Sessions on 10.08.1990.
19. It further appears that charges were
framed in this case on 13.05.1992. By that time, one
Bijay Tanti, one of the accused persons of this case was
reported to have died and, therefore, the proceedings
against him had to be dropped. The case of another
accused, viz., Ambika Mandal was separated in the year
2007.
20. The appellant had been on bail during
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
the Trial but because of his jumping the bail bonds, his
bail was cancelled on 28.01.2016. He was taken in
custody on 30.03.2016 and since then, he is in jail.
21. A bare look at the deposition of P.W. 5
would make it very clear that there are inconsistencies
galore in his deposition. There was no reason for the
accused persons to have waited for others to arrive
when they had already executed the murder.
Admittedly, P.W. 5 had gotten up and had come in
search of his brother after he had heard the sound of
firing.
22. With the non-examination of the I.O.,
we are also not sure whether there was any means of
identification of the accused persons by the appellant
and that too from a distance.
23. No explanation also has been offered by
the prosecution for the non-examination of the I.O.
24. Many persons, according to P.W. 5,
would have got down the train at the rail-road crossing.
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
The number has been stated to be approximately 250
to 300. The deceased then would not have been killed
in presence of all the travellers.
25. When did the murder took place and by
whom, therefore, remains absolutely ambiguous.
26. One of the prosecution witnesses, who
has been tendered is non-else but a person, who
resides only 15 yards away from the touted P.O., viz.,
the school compound where the deceased was dragged
and then shot dead.
27. As noted above, we have also found the
deposition of the wife of the deceased (P.W. 7) to be
doubtful for the reason of there being no evidence on
record of her having made such statement before the
police during the course of investigation. Otherwise
also, if the deposition of P.W. 5 is to be believed, she
had not accompanied him and others to the P.O.
28. Had she done so, P.W. 5 would have
said that in the FIR.
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
29. We do reckon that not all the details
are expected to be provided in the FIR, but the
presence of the wife of the deceased along with the
informant of this case is an important fact providing
sufficient materials to the case, which if not stated in
the FIR, raises eyebrows.
30. The post-mortem examination appears
to have been conducted at five past one o'clock in the
afternoon of 28.08.1989. The time of death was fixed
at within 32 hours of the occurrence. If the prosecution
case is to be believed, the occurrence took place
sometimes after 04:30 in the morning of 28.08.1989.
31. The P.M. report, therefore, definitely
presumes that the death had taken place much earlier
than what has been reported by P.W. 5.
32. There is a categorical observation in the
report that rigor mortis was present all over the body.
Thus, the reason for the Doctor having given such a
wide berth for the time of death, remains inexplicable
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
to us.
33. Thus, for all practical purposes, the
conviction appears to have been recorded only on the
solitary evidence of the brother of the deceased, viz.,
Bharat Mandal/P.W. 5, whose version is not free from
infirmities. That he proceeded to look for his brother,
unarmed and without any preparation, also appears
peculiar to us especially when P.W. 5 had heard the
sound of firing; knew about the programme of the
deceased as also that the deceased had enmity in the
village.
34. Apart from all this, what is noticeable in
his deposition is that he did not offer any evidence of
his having seen the occurrence in the torch light. He
had not given the torch to the Investigator. No person
of the village, according to him, came for the rescue of
the deceased.
35. It appears that there is a possibility that
because of land dispute, the sole surviving appellant
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
has been named as one of the accused persons.
36. For the materials being so exiguous, it
is difficult for us to sustain the conviction of the
appellant.
37. Giving him benefit of doubt, we set
aside the judgment and order of conviction of the
appellant and acquit him of the charge levelled against
him.
38. The appeal stands allowed.
39. It is informed by the learned Advocate
that the appellant is in jail since 2016. He is directed to
be released forthwith from jail, if not detained or
wanted in any other case.
40. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
41. The records of this case be returned to
the Trial Court forthwith.
42. Interlocutory application/s, if any, also
Patna High Court CR. APP (DB) No.712 of 2016 dt.08-01-2024
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
Sauravkrsinha/
Krishna-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.01.2024
Transmission Date 09.01.2024
