Patna High Court
Sanjay Mandal And Ors vs The State Of Bihar on 5 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1091 of 2017
Arising Out of PS. Case No.-116 Year-2015 Thana- ARIYARI District- Sheikhpura
======================================================
1. Sanjay Mandal
2. Guddu Mandal Both sons of Suresh Mandal @ Suresh Mahto Resident of
Village - Brindawan, Police Station - Ariari, District - Sheikhpura.
3. Niranjan Kumar @ Niranjan Mandal son of Bashisth Mandal Resident of
Village - Chak Awgila, Police Station - Ariari, District Sheikhpura.
4. Dilwar Mandal @ Dilawar Mandal son of Shankar Mandal Resident of
Village - Raghunathpur, Police Station Sikandra, District Jamui.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 925 of 2017
Arising Out of PS. Case No.-116 Year-2015 Thana- ARIYARI District- Sheikhpura
======================================================
1. Suresh Mahto @ Suresh Mandal and Anr Son of Late Nand Kishore Mahto
2. Bhonu Mahto @ Bhonu Mandal Son of Late Chando Mahto Both Resident
of Village-Brindawan, P.S. Ariari, District Sheikhpura.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1091 of 2017)
For the Appellant/s : Mr.Ajay Kumar Thakur,
For the Respondent/s : Mr. Binod Bihari Singh
(In CRIMINAL APPEAL (DB) No. 925 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur
For the Respondent/s : Mr.Sri Ajay Mishra
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
2/35
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 05-01-2024
1. Both the appeals (six appellants therein) have
been heard together and are being disposed off by
this common judgment.
2. We have heard Shri Ajay Kumar Thakur for the
appellants and Mr. Binod Bihari Singh and Mr. Ajay
Mishra, APPs for the State.
3. All the six appellants have been convicted
under Sections 364, 302, 201, 149 and 120B IPC
vide judgement dated 19.06.2017 passed by the
learned District & Sessions Judge, Sheikhpura in
Sessions Case No. 26 of 2016. By order dated
22.06.2017
, they have have been sentenced to
undergo imprisonment for life, a fine of Rs. 10,000/-
and in default of payment of fine, to further suffer
R.I. for two years for the offence under Section
302/149 IPC; R.I. for ten years, fine of Rs. 5,000/-
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
and in default of payment of fine, to undergo R.I. for
one year for the offence under Section 364/149 IPC.
No separate sentence has been passed under Section
120(B) IPC. For the offence under Section 301/149,
the appellants have been directed to undergo R.I. for
three years, to pay a fine of Rs. 2,000/- and in
default of payment, to further suffer R.I. for six
months. The entire fine amount has been directed to
be paid to the heirs of the deceased as
compensation. The sentences have been ordered to
run concurrently. A further direction has been given
to the District Legal Services Authority, Sheikhpura
for deciding about the quantum of compensation
which ought to be awarded to the heirs of the
deceased under the victim compensation scheme.
4. The appellants are said to have killed the
deceased /Sanjeet Kumar after strangulating him
and then cutting of his head and burying the trunk
and head both in the jungle. No motive has been
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
assigned by the prosecution for the aforenoted
killing. There is no eye-witness to the occurrence,
nor is there any enmity against the deceased or his
family members with the appellants. In fact, the
F.I.R regarding the deceased having gone missing
was lodged on 24.10.2015 by the elder brother of
the deceased, namely, Sunil Kumar Suman (PW14).
The deceased had gone out of the house on
22.10.2015 at about 6. P.M. along with one
Shailendra Kumar for visiting the fair organized on
the eve of Dussehra festival. However, when he did
not return till the next day, an enquiry was made
from afore-noted Shailendra, but he disclosed that
he had left the company of the deceased in the night
of 22.10.2015 only. On further search, it was
gathered by PW14 that one Binod Paswan, who has
not been examined at the Trial had seen the
deceased along with appellant/Sanjay Mandal
standing near the vehicle belonging to him. There
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
were some other persons also, who were drinking
along with the owner of a local restaurant. On such
information by Binod Paswan, PW14 came to the
conclusion that perhaps the accused persons,
namely, Shailendra, Sanjay Mandal and the
restaurateur along with others might have killed the
deceased.
5. On the basis of written report lodged by PW14
with the aforenoted information, a case vide Ariari
P.S. Case No. 116/2015 dated 24.10.2015 was
registered for investigation against aforenoted
Shailendra Kumar, Sanjay Mandal and the
restaurateur along with some unknown persons.
6. The police did not find the complicity of
aforesaid Shailendra Kumar and the restaurateur
referred to in the F.I.R. In fact, the prosecution case
is that since appellant /Sanjay Mandal was a suspect
as was seen last along with the deceased, he was
arrested along with his brother, namely, Guddu
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
Mandal and on the confession of Guddu Mandal,
other accused persons / appellants were also
arrested. The confession of Guddu Mandal before the
police led to the recovery of the trunk and the head
of the deceased as also a sickle with blood-stains
from the jungle. Only such persons were proceeded
against who were named in the confession.
7. Ultimately, the police submitted chargesheet
against the appellants, six in number, who were put
on Trial.
8. The Trial Court, after having examined
seventeen witnesses on behalf of the prosecution
convicted and sentenced the appellants as aforesaid.
9. The major argument of Mr. Thakur in defense
of the appellant is that the police as well as the Trial
Court have completely misdirected themselves in
relying upon inadmissible evidence for coming to the
conclusion of guilt of the appellants. The confession
which led to the recovery of the dead body was
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
made by Guddu Mandal, against whom there was no
suspicion and, therefore, he might not have been
arrested and in the custody of the police when his so
called confession was recorded. Only Sanjay Mandal
was named in the F.I.R. as he was seen by one
Binod Paswan standing by the side of the deceased
in the night of 22.10.2015. If this be so, it has been
argued, even so much of the information which
distinctly related to the recovery of the dead body
would not be admissible even under Section 27 of
the Evidence Act as the ban of Section 27 of the
Evidence Act would apply proprio vigore.
10. In support of the aforenoted arguments,
the Mr. Thakur has suggested that had it not been
the case, the arrest memo of Guddu Mandal would
have been brought on record. Even otherwise, the
confession of Guddu Mandal leading to the so called
recovery of the dead body and the weapon used in
the murder cannot be accepted as the same was
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
never recorded in presence of independent witnesses
when admittedly, many persons were waiting in the
police station when such statement was being
recorded. With respect to the recovery of the
truncated dead body of the deceased, Mr. Thakur
has urged that in the absence of any recovery
memo, the whole purpose of the recovery gets
frustrated. There is no guarantee that the dead body
was recovered at the instance of Guddu Mandal.
The place from where it was recovered remains
unknown in the absence of the recovery memo.
11. The absence of recovery memo in the
records of the case and the I.O. (P.W. 17) not
taking the local persons who were present at the
time exhumation of the dead body in loop, further
confirms that there was no recovery at all.
12. That, the postmortem examination was
conducted over the dead body of the deceased
would, in this case, not be a sure proof of the
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
recovery. The post-mortem report does not refer to
the case in which the body of the deceased was
recovered. The subject body of the postmortem
examination was completely swollen and
decomposed. There is nothing on record to
conclusively bring home the assertion of the
prosecution that the body which was subjected to
postmortem examination was that of Sanjeet Kumar.
The dead body appears to have been identified by
one Gorelal Paswan, the Chowkidar, who had only
brought the dead body to the morgue. He could have
only identified the dead body which he had brought.
13. Additionally, it has been argued that
none of the witnesses claimed to have seen the
deceased going anywhere in the company of the
appellants. Thus even the inference from the
circumstance of the deceased having been seen near
a vehicle belonging to Sanjay Mandal and Sanjay
Mandal being present there is so snapped out and
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
isolated a circumstance that it does not even come
half way in completing the chain of circumstances for
presumption of the guilt of the appellants.
14. Thus, it has been argued that the
conviction of the appellants is based on no material
and only hearsay statement of the witnesses.
15. As opposed to the aforenoted
contentions, the learned Additional Public
Prosecutors have submitted that though the recovery
memo is not on record but the Investigating Officer
of this case, namely, Balram Prasad (PW17) and
Santosh Kumar Singh, the police officer, who was
part of the team (PW16) have testified clearly that
on the pointing of appellant/Guddu Mandal, the dead
body and the blood stained sickle were recovered.
The law does not enjoin the Trial Court to completely
brush aside such recovery and the fact distinctly
associated with it under Section 27 of the Evidence
Act merely because the recovery Panchnama has not
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
been brought on record, which omission could be
inadvertent as well. Apart from this, countervailing
arguments have been made that while the statement
of Guddu Mandal was being recorded, Sanjay Mandal
was present there, who had affirmed whatever was
said by Guddu Mandal. While the statement was
being recorded, many persons, some of whom are
the witnesses of this case, were present and they
were also witnesses to the recovery of the truncated
body. But before that, the learned APPs have
pointed out, both Sanjay Mandal and Guddu Mandal
were arrested, which fact stands confirmed by the
statement of the I.O. (PW17). Though no arrest
memo of Guddu Mandal is on record but it would be
too much for the defense to press that when Guddu
Mandal had made the statement, he was not in the
custody of police and, therefore, one of the essential
conditions for application of Section 27 of the
Evidence Act that the person making such confession
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
ought to be an accused of a case and be in police
custody for his statement to be taken as confession,
inculpatory or otherwise, which would be admissible
under Section 27 of the Evidence Act, was missing.
16. The witnesses, it has been asserted on behalf
of the State, have been consistent that the deceased
was found waiting for a vehicle to return home from
the fair in the night of 22.10.2015. One of the
witnesses has also confirmed that the deceased
wanted to come back by a different mode of
transport but Sanjay Mandal and Guddu Mandal
insisted that they would reach the deceased to his
home later.
17. Another brother of the deceased, while
searching for his brother, had heard one of the
appellants say that the police would gain no mileage
by keeping Sanjay Mandal and Guddu Mandal in
custody as they would not spill the beans and that
the dead body was concealed in such a manner that
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
it can never be recovered. This apparently was heard
by one of the witnesses to this case and, therefore,
the Trial Court was not absolutely wrong in taking
such statement into account and citing it as one of
the circumstances for the presumption against the
appellants to become strong one.
18. It is not unknown that the convictions
are recorded on circumstantial evidence but only if
the circumstances are complete.
19. No doubt, the Court does not expect any
mathematical precision in forging the circumstances
of inferential guilt as that may not be possible.
However, it is well settled as to how, in cases of
circumstantial evidence, the Court is under an
obligation to look for each and every part of such
circumstance which would form a complete chain,
unerringly pointing towards the guilt of the accused.
The circumstances ought to be of such a nature that
it would only be in concord with lack of innocence of
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
the accused and should definitely point towards his
guilt.
20. The most fundamental and the basic decision
of the Supreme Court on circumstantial evidence is
Hanumant vs. State of M.P. (AIR 1952 SC
343). The principles have been followed uniformly in
Tufail @ Simmi vs. State of U.P. [(1969) 3
SCC 198]; Ram Gopal vs. State of Maharashtra
[(1972) 4 SCC 625] and Sharad Birdhichand
Sarda vs. State of Maharashtra [(1984) 4 SCC
116].
21. M.C. Mahajan, J. in Hanumant (supra) has said
that it is well to remember that the circumstances
relied upon must be consistent with the hypothesis
of guilt of the accused. It should be of conclusive
nature and tendency so as to exclude every
hypothesis but the one proposed to be proved.
22. The "factum probandum and the factum
probans must be cogently and firmly established."
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
"The force and effect of circumstantial evidence
would depend upon its incompatibility with, and in
capability of, explanation or solution upon any other
supposition than that of the truth of the fact which it
is adduced to prove; the mode of argument
resembling the method of demonstration by the
reductio ad absurdum". (Refer to Ramanand @
Nandlas Bharti vs. State of U.P [AIR 2022 SC
5273]); Subramanya vs. State of Karnataka,
AIR 2022 SC 5110; Boby vs. State of Kerala,
2023 SCC Online SC 50 and Venkatesh @
Chandra vs. State of Karnataka, 2023 Cr.L.J.
183 SC.
23. Seen and analyzed in this context and on
such touchstone we have found that Jitendra Kumar,
Deepak Kumar, Uttam Kumar and Mithun Kumar,
who have been examined as PWs 1 to 4 and who
have confirmed that they had also visited the fair
and had seen the deceased standing along with
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
appellant /Sanjay Mandal and his cohorts, have
made their statements after the recovery of a
truncated body which was tauted to be of Sanjit
(deceased). Their statements, therefore, would not
have any probative value with respect to even this
circumstance that the deceased was last seen with
one of the appellants and his associates. Their
statements were recorded by the police after 20
days of the recovery of the dead body. Assuming
that this spotting of the deceased along with Sanjay
Mandal and others were true, but for the fact that
the deceased went missing and later his dead body
was recovered, it would not have been any important
information for them to have disclosed it to anyone.
In that case, their making the statements after the
recovery might make sense. However, that would
only be one of the circumstances, which
independently may not partake of the character of
connecting evidence. It would take the prosecution
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
nowhere specially when no witness has claimed to
have seen the deceased going along with anyone of
the appellants or all the appellants in the vehicle.
24. Rajesh Kumar (PW5) makes the
prosecution version even more suspect. He was
present at the fair and had seen one red-coloured
magic vehicle being driven by Sanjay Mandal Bhonu,
Suresh and Niranjan were seated in the vehicle. The
vehicle was parked behind a poultry farm, from
where it was recovered by the police in an
abandoned condition. He further claimed to have
seen all the appellants getting out of the vehicle and
entering the poultry farm. If this statement is
accepted to be true, it would only lead to one
inference that from the fair, the appellants had come
to the poultry farm and were not to be seen
thereafter. The poultry farm or the place from
where the vehicle was found does not fall in any one
of the P.O.s. It appears that the police, without any
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
reason, gave a short-shrift to the accusation initially
levelled by PW14 about the complicity of Shailendra
and the local restaurateur who was named along
with Sanjay Mandal. On the contrary, the brother of
Shailendra has been brought to the witness-stand as
PW9, who has confirmed that the deceased had
come to his house and he and Shailendra had visited
the fair. Shailendra came back in the night. In the
morning, the next day, PW9 learnt that Sanjeet
Kumar had not come back home. He enquired from
his brother who had nothing else to offer except the
regular/staid stand that he had left the company of
the deceased sometimes in the night of October,
2015.
25. Till the time Shailendra was present along
with deceased, nothing had happened and
Shailendra did not ever disclose about the presence
of Sanjay Mandal and his cohorts there in the fair.
26. This should have been investigated.
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
27. If P.W. 9 had asked his brother about Sanjit,
he should have spoken about the same, if it were
true. We say so for the reason that by the time
some interrogation may have been made from
Shailendra, the FIR had already been lodged in
which he too was suspected as one of the
offenders.
28. Where was the reason for the police to have
completely given up the suspicion against
Shailendra and the local restaurateur, who was
partying at the fair along with others, some of
whom have been named in the confession. The
only answer which we could find about the sudden
change of track by the police is the so-called
confession of Guddu Mandal. That perhaps
completed the story for the police to probe any
further.
29. The I.O. (P.W. 17) has gone on record by
stating before the Court that he did not consider it
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
necessary to know about the relationship of the
appellants and the deceased for them to have
harboured any intention of harming the deceased
or the reason for killing him. This only denotes that
the police acted with its blinders on and never
cared to investigate the case properly.
30. We find substance in the submission of Mr.
Thakur that by the time the statement of Guddu
Mandal was recorded, which was supported by
Sanjay Mandal, who only had become a suspect by
then, Guddu Mandal was not even a suspect and in
the absence of any arrest memo of Guddu Mandal,
it would be difficult to assert with conviction that
he was under the custody of the police.
31. Section 26 of the Evidence Act, 1872, puts a
complete ban on the admissibility of a confession
made by any person while he is in the custody of a
police officer, unless it is made in the immediate
presence of a Magistrate. Such statement cannot
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
be proved against the maker. We are not referring
to the explanation of Section 26 of the Evidence
Act, as it is not necessary in the facts of this case.
To this rule, an exception, though not "artistically
worded" has been carved out. It lifts the ban on
such admission of confession, if any fact is
deposed to as discovered in consequence of
information received from a persons accused of the
offence, in the custody of a police officer; but only
so much of such information whether it amounts to
a confession or not, as would remain distinctly to
the fact thereby discovered can be proved. The
conditions necessary for lifting the ban on proving
the confession is that there should be a discovery
of fact, in consequence of an information received
from the accused; discovery of such facts to be
deposed to; the accused must be in police custody
when he gave information; and so much of
information as it relates distinctly to the fact
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
thereby discovered, only would be admissible.
32. Broadly, therefore, it would appear that for
Section 27 of the Evidence Act to be triggered, two
conditions must apply viz. (I) the information must
be such as would cause discovery of the fact; and
(II) information must relate distinctly to the fact
discovered.
33. Guddu Mandal is the only person who is said
to have made confession before the police. There
is no certainty that he was in police custody. In
that case, the recovery of the truncated body of
the deceased becomes suspect and inadmissible as
well. Even otherwise, the discovery of a truncated
body, said to be of the deceased, may not be the
fact discovered as a "fact discovered" under
Section 27 of the Evidence Act need not
necessarily be equated with the "object recovered".
Even if we assume that Guddu Mandal was in the
custody of the police after having been made an
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
accused even as a suspect who made a statement
pursuant to which there was a recovery of a
truncated body which is identified to be of the
deceased, it would only be a link in the case and
cannot form the basis for concluding the guilt of
Guddu Mandal along with others.
34. The scope and ambit of the construction of
Section 27 of the Evidence Act would be best
understood by referring to the locus classicus viz.
the declaration of the privy council through Justice
Beaumont in Pulukuri Kottaya vs. King
-Emperor, AIR 1947 Privy Council 67. This
case had travelled to the privy council from
Madras. It was a case of assault and consequent
death as a result of fight between two factions of
the village. The eye-witnesses were all hostile to
the accused, but the Sessions Judge trying the
case found their version to be substantially true
and convicted them. Such decision was upheld by
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
the High Court. In the appeal to his Majesty
council, it was urged that the failure of the
prosecution to supply the defence at the proper
time with copies of statements which were made
by important P.Ws. during the course of
preliminary police investigation involved a breach
of the express provision of Section 162 of the
Cr.P.C. and that the alleged wrongful admission
and use in evidence of confession, alleged to have
been made while in the police custody by two of
the appellant, involved an important question as to
the construction of Section 27 of the Evidence Act.
35. Finding that the opinions of High Courts of
India were in conflict with respect to the
construction of Section 27 of the Evidence Act, the
privy council proceeded to explain the same. After
noting the contents of the Section, the privy
council found that Section 27 of the Evidence Act
provided an exception to the prohibition imposed
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
by the Section 26 of the Evidence Act and enabled
certain statements made by an accused in police
custody to be proved. The condition necessary to
bring the section into operation is that discovery of
a fact in consequence of information received from
a person accused of any offence in the custody of a
police officer must be deposed to, and thereupon
so much of the information as relates distinctly to
the fact thereby discovered may be proved.
36. This seemed to the privy council to be based
on the view that if a fact is actually discovered in
consequence of the information given, there could
be some guarantee in holding that the information
was true and accordingly it could be allowed to be
taken in evidence. However, the extent of the
information admissible would only depend on the
exact nature of the fact discovered to which such
information is required to relate. It was further
explained that if the expression "fact discovered" is
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
to be taken as a physical object produced and if
any information which related distinctly to that
object could be proved, then perhaps the whole
purpose of the ban under Section 26 of the
Evidence Act would be frustrated. The ban was
presumably inspired by the fear of the legislature
that a person under police influence might be
induced to confess by exercise of undue pressure.
If any information relating to the recovery of a
physical object is permitted to be proved, then the
so-called statement by the maker that he killed the
deceased by the weapon which was recovered
would also become admissible.
37. The privy council very pithily expressed that
it would be fallacious to treat the "fact discovered"
in Section 27 of the Evidence Act as equivalent to
the "object produced". The fact discovered would
embrace the place from which the object is
produced as also the knowledge of the accused as
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
to this and the information given must distinctly
relate to this fact. Any information as to past user
or past history of the object produced is not related
to its discovery in the setting in which it was
discovered.
38. In State of UP vs. Deoman Upadhyaya,
AIR 1960 SC 1125, the Supreme Court has
explained that classification of accused persons in
two categories has been made by the law in
question: one would be those who have the danger
brought home to them by detention on a charge;
and the other who are let free. In the former
category are also those persons who surrendered
to the custody by words or action. The protection
given to these two classes is different.
39. In case of persons belonging to the first
category, the law has ruled that their statements
are not admissible, and in case of the second
category, only that portion of the statement is
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
admissible as is guaranteed by the discovery of a
relevant fact, unknown before the statement to the
Investigating Authority. That statement may even
be confessional in nature.
40. Very surprisingly and almost inexplicable to
us is the failure of police in not recording such
confession before independent persons; not
bringing on record the arrest-memo of Guddu
Mandal as also the recovery-memo of the
truncated body. Equally intriguing for us is the
non-production of the fly-axe which admittedly was
used for cutting the neck of the deceased, even
though the same was seized and sealed. That the
blood stains on it was never sent for chemical
examination is another factor which would make
the prosecution version highly suspect. Thus, the
recovery of the so-called dead body of the
deceased is no discovery which would be
admissible under Section 27 of the Evidence Act.
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
[Aslo refer to; Mohd. Inayatullah vs. State of
Maharashtra (1976) 1 SCC 828; Anter Singh
vs. State of Rajastahan, (2004) 10 SCC 657;
Jafarudheen and Ors. vs. State of Kerala
(2022) 8 SCC 440; Ramanand @ Nandlal
Bharti vs. State of U.P. AIR 2022 SC 5273;
Rajesh and Anr. vs. State of Madhya
Pradesh, 2023 SCC Online 1202]
41. Testing the case further, we have
examined to the postmortem report and the
evidence of the doctor (P.W. 13). The postmortem
was performed on 27.10.2015. An incised wound
was found at the base of the neck and the head
was amputated but was present on the operation
table. The body was swollen and was emitting foul
odour. The skin had also peeled off from various
places. The tongue was protruding. The cause of
death was assessed to be cardio-respiratory failure
because of amputation of head by a sharp cutting
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
instrument.
42. In his cross-examination, Dr. Dhirendra
Prasad Singh (P.W. 13), referred to above,
disclosed that the dead body was identified by one
chawkidar/Gorelal Paswan but the dead body was
the subject matter of which case was not disclosed
to him nor did he mention it in the postmortem
report. He admitted of having operated upon a
truncated body but agreed that it was decomposed.
Though answering a specific question, he has said
that anybody could have recognized the dead body
but it appears to us that such statement was made
ipse-dixit.
43. What has caught our attention is that
the Doctor (P.W. 13) sensed from seeing the dead
body that it had been buried underground but
never wrote that in his report. There is a problem
there. The first doubt in the list of inconsistencies
galore is that in the absence of recovery-memo,
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
there is nothing on record to indicate that the body
was exhumed. If it were exhumed, the entire body
would be covered with mud. There is nothing in
evidence to suggest that the body was cleaned
before being put to postmortem examination and
when the Doctor conducting the postmortem
examination got a feeling that the dead body had
been buried, which was one of the first objective
findings of a doctor, that ought to have been
penned down.
44. Which dead body then was subjected to
the postmortem examination ?
45. We have already noted that the case
connection of the dead body was neither told to the
Doctor nor was it mentioned in the column
reserved for it in the Post-mortem Chart. There is
no categorical assertion of any one of the
witnesses that the truncated body was that of the
deceased.
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
46. A very casual reference has been made
by the wife and the bother of the deceased that
the body parts which were recovered at the
instance of Guddu Mandal were of the
deceased/Sanjeet. It appears to be very difficult to
accept that five days of the dead body having been
buried and the decomposition having set in, the
dead body would be identified. If at all it was
identified, there should have been a specific
statement regarding its identification.
47. With these facts, only one thing
appears to the fore, i.e. the police took the
shortest possible route to avowedly solve the
murder mystery. Only the confession appears to
have been relied upon solely and the Trial Court
unsuspectingly accepted such circumstances viz.
the recovery of truncated dead body to be of the
deceased and used it as the compelling evidence
for coming to the conclusion of guilt of the
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
appellants.
48. If this is the manner in which the police
investigation is conducted, the functioning of the
criminal justice system would, for sure, take a jolt.
A serious miscarriage of justice has resulted in this
case because of such errors and possibly the
malpractice of finding out some way to anyhow
solve the case and be done with the investigation.
49. It is very perplexing for us to see that the
Trial Court went along with the proposition of the
prosecution, despite the innumerable weak links
and cavernous wedge in the prosecution version.
50. The yawning infirmities and the gaps in the
chain of circumstantial evidence in this case would
only warrant an acquittal of the appellants.
51. The basis of the entire prosecution case, in
our estimation, has vanished in thin air.
52. Though we have found that the Trial Court
has reminded itself of the requirements in a case
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
of circumstantial evidence but the same do not
appear to have been put in practice. One is
reminded of the categorization of a circumstantial
evidence to be like a "gossamer thread" which is so
light and intangible as the air itself, which might
vanish with the merest of the touches.
53. For the afore-noted reasons, we set
aside the judgment and order of conviction; allow
the appeals and acquit the appellants of all the
charges
54. Except for appellants Sanjay Mandal
and Guddu Mandal, the other appellant viz.
Niranjan Kumar @ Niranjan Mandal, Dilawar
Mandal, Suresh Mahto @ Suresh Mandal and
Bhonu Mahto @ Bhonu Mandal are on bai.
55. Their liabilities under the bail bonds are
discharged.
56. Appellants Sanjay Mandal and Guddu Mandal
are directed to be released forthwith from jail, if
Patna High Court CR. APP (DB) No.1091 of 2017 dt.05-01-2024
not required or detained in any other case.
57. Let a copy of this judgment be dispatched to
the Superintendent of the concerned Jail forthwith
for compliance and record.
58. The records of this case be returned to the
Trial Court forthwith.
59. Interlocutory application/s, if any, also stand
disposed off accordingly
(Ashutosh Kumar, J)
(Nani Tagia, J)
Sunilkumar/
manoj-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 08.01.2024
Transmission Date 08.01.2024
