Patna High Court
Sunil Mandal And Anr vs The State Of Bihar on 2 May, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1129 of 2017
Arising Out of PS. Case No.-159 Year-2004 Thana- AMARPUR District- Banka
======================================================
Panchu Harijan, Son of Late Bhagori Harijan, resident of village- Bhadaria,
P.O.-Bhadaria, P.S.-Amarpur, District-Banka.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1098 of 2017
Arising Out of PS. Case No.-159 Year-2004 Thana- AMARPUR District- Banka
======================================================
1. Sunil Mandal, Son of Sudin Mandal,
2. Ashok Mandal, Son of Late Bisu @ Bisundeo Mandal @ Bisu Mandal,
Both are resident of Village- Khanjarpur, P.S.- Amarpur, District- Banka.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1131 of 2017
Arising Out of PS. Case No.-159 Year-2004 Thana- AMARPUR District- Banka
======================================================
Ganesh Bhandari, Son of Late Chunchun Bhandari, Resident of Village-
Bhadariya Under P.S.-Amarpur, District-Banka.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1129 of 2017)
For the Appellant/s : Mr.Sanjeev Kumar Mishra, Advocate
Mr. Murlidhar Mishra, Advocate
Mr. Piyush Saurav, Advocate
Mr. Anand Tiwari, Advocate
For the State : Mr. Ajay Mishra, APP
For the Informant : Mr. Chandra Shekhar Sharma, Advocate
(In CRIMINAL APPEAL (DB) No. 1098 of 2017)
For the Appellant/s : Mr. Bakshi S.R.P. Sinha, Sr. Advocate
Mr. Sanjay Kumar Jha, Advocate
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
2/22
Mr. Rana Pratap Singh, Advocate
For the State : Mr. Ajay Mishra, APP
For the Informant : Mr. Chandra Shekhar Sharma, Advocate
(In CRIMINAL APPEAL (DB) No. 1131 of 2017)
For the Appellant/s : Mr. Ranjit Kumar Singh, Advocate
For the State : Mr. Abhimanyu Sharma, APP
For the Informant : Mr. Chandra Shekhar Sharma, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 02-05-2024
All the three appeals have been taken up
together and are being disposed of by this common
judgment.
2. We have heard Mr. Murlidhar Mishra,
the learned Advocate for appellant/Panchu Harijan in
Cr. App. (DB) No. 1129 of 2017; Mr. Bakshi S.R.P.
Sinha, the learned Senior Advocate for the
appellants/Sunil Mandal and Ashok Mandal in Cr. App.
(DB) No. 1098 of 2017 and Mr. Ranjit Kumar Singh,
the learned Advocate for the appellant/Ganesh Bhandari
in Cr. App. (DB) No.1131 of 2017.
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
3/22
3. The State is represented by Mr. Ajay
Mishra and Mr. Abhimanyu Sharma, the learned APPs.
4. The informant is represented by Mr.
Chandrashekhar Sharma, the learned Advocate.
5. Appellants/Panchu Harijan and Ganesh
Bhandari have been tried together and have been
convicted under Sections 302/120B of the Indian Penal
Code, vide judgment dated 14.07.2017 passed by the
learned Fast Track Court- I, Banka in Sessions Trial No.
535 of 2007 arising out of Amarpur P.S. Case No. 159
of 2004 (G.R. No. 1263 of 2004). By order dated
14.07.2017
they have been sentenced to undergo R.I.
for life for the offence under Section 302 of the IPC
and to undergo R.I. for two years for the offence under
Section 120B of the IPC.
6. The sentences have been ordered to
run concurrently.
7. The appellants/Sunil Mandal and Ashok
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
Mandal have been tried together and have convicted
under Section 302/120B of the Indian Penal Code, vide
judgment dated 14.07.2017 passed by the learned Fast
Track Court- I, Banka in Sessions Trial No. 1115 of
2008 arising out of Amarpur P.S. Case No. 159 of
2004 (G.R. No. 1263 of 2004). By order dated
14.07.2017 they too have been sentenced to undergo
R.I. for life for the offence under Section 302 of the
IPC and to undergo R.I. for two years for the offence
under Section 120B of the IPC.
8. Their sentences also have been
ordered to run concurrently.
9. One Dulari Devi is said to have been
killed in the night intervening between 27/28 th of
October, 2004. She was killed on the charge of
practicing witchcraft in the village.
10. The son of the deceased viz. Raj
Kumar Das (P.W. 8) in both the Sessions Trials, viz.,
S.Tr. No. 535 of 2017 and S.T. No. 1115 of 2017, has
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
alleged that while he along with his family members
including the deceased was sleeping in the house in the
night of 27.10.2004, he heard the garbled voice of his
mother at about 12.30 in the night. He woke up from
his sleep and saw two persons going out of the house.
He called his grandmother and aunt viz. Reshma Devi
and Sangita Devi (P.Ws. 2 and 5 respectively) and he
himself came out of the house. In the moonlight, he
saw two loongi clad persons running away. Some traits
of physiognomy were also given by the informant for
the purposes of identification of the accused persons.
11. On his raising cries, co-villagers viz.
Niranjan Sharma, Chaprasi Harijan, Laxman Harijan,
Panchu Harijan (one of the appellants) came inside the
house and saw that his mother had been killed by
slitting her throat and also by firing at her. Her mother
had received injuries on her cheeks and the right
shoulder as well. Copious blood had spread on the bed
as also on the floor.
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
12. The cause of occurrence as narrated
by the informant (P.W. 8) is that the local Mukhiya viz.
Jayant Lal Mishra had chastised appellant/Ganesh
Bhandari for insinuating that the deceased was a
sorcerer. Aggrieved by this, appellant/Ganesh Bhandari
had threatened his mother of dire consequences. He
had but gone to Delhi some 15 days ago and out of a
well-hatched conspiracy, he got the deceased killed
through his associates. On the bed, several pellets were
also found.
13. On the basis of the aforenoted
fardbeyan statement of P.W. 8 a case vide Amarpur
P.S. Case No. 159 of 2004 dated 28.10.2004 was
registered for investigation against two unknown under
Sections 302 and 120B of the IPC.
14. The fardbeyan was lodged at about
06.45 A.M. in the morning of 28.10.2004. The
occurrence is said to have taken place, as noted above,
sometimes in the night at around 12.30 P.M. of
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
27/28th of October, 2004. The inquest was prepared at
07.00 A.M. on 28.10.2004, in which there was no
reference of the appellants in column-8 meant for
recording information regarding the cause of occurrence
and persons behind the occurrence in the opinion of the
witnesses. Two persons were witnesses to the inquest.
15. Appellants/Panchu Harijan and Ganesh
Bhandari were tried together in S.T. No. 535 of 2007.
In that Trial, nine witnesses were examined including
the informant (P.W. 8) but the I.O. was not examined
in that Sessions Trial.
16. Appellants/Sunil Mandal and Ashok
Mandal were tried together in S.T. No. 1115 of 2008 in
which 12 witnesses were examined including three
Investigating officers.
17. We would be referring to the
deposition of the witnesses with reference to S.T. No.
535 of 2008. For referring to the deposition of the
three I.Os. we would look to the records of S.T. No.
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
1115 of 2008 as the three I.Os. have not been
examined in the former Trial.
18. The refrain of the learned Advocates
for the appellants is that the assailants were not seen
by anyone of the witnesses, including the informant.
The deceased was murdered in the night and the motive
suggested for murder also could not by and large be
accepted to be true.
19. However, in the absence of any
evidence of any conspiracy having been hatched, the
accusation against the appellants was only on the basis
of guess-work by the family of the deceased.
20. All the learned Advocates have
addressed us on this issue primarily.
21. We have examined the deposition of
the witnesses in great detail.
22. The informant (P.W. 8) has made
similar statements in both the Trials. Before the Trial
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
Court, P.W. 8 has supported the prosecution case, but
his deposition completely debunks his claim of having
identified the assailants of the deceased, viz., the
appellants.
23. Differing from what he had said in his
fardbeyan, he has deposed that on the cries of his
mother, he got up from his sleep and saw
appellant/Ganesh Bhandari and one Giro Mandal
stabbing the deceased. He started shouting and came
out of his house. Outside his house, he saw
appellants/Sunil Mandal, Ashok Mandal and Panchu
Harijan. He was able to identify them in the moonlight.
One of the miscreants had switched on his torch. In the
light of that torch also, he saw two of the persons
including one of the appellants viz. Ganesh Bhandari
stabbing the deceased. The accused persons believed
that the deceased practiced witchcraft. On his call, his
grandmother and aunt viz. Reshma and Sangita (P.Ws.
2 and 5 respectively) came. Thereafter, the other
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
villagers arrived. Because the son of Ganesh Bhandari
was ill, it was doubted that because of the deceased
practicing witchcraft, the child has fallen ill.
24. Some days before the occurrence, a
Panchayati was held on the complaint of the deceased
before the Mukhiya/Jayanti Lal Mishra. After the
Panchayati, the deceased was threatened that she
would be killed. The police arrived at the house on the
next day on 28.10.2004. He had told the police officer
about the appellants having killed the deceased. His
statement was never again taken by the police
thereafter. The house of the appellant/Panchu Harijan is
situated only 15-20 yards from his house. At the time
of the occurrence, he was sleeping in the verandah of
the house along with his mother.
25. In his cross-examination, he has
stated that he had not told the Investigator about the
appellant/Panchu Harijan being a witness. He had
named four persons of the village viz. Niranjan Sharma,
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
Laxman, Chaprasi Harijan and Ishwar Sharma. Except
Ishwar Sharma in one of the trials, none were
examined in both the Trials. When he raised hulla, the
accused persons fled away. He also chased them but
did not go very far. He came back to his house and saw
his mother dead. He noticed the injuries on her body.
He had also found pellets on the bed.
26. If he were to be believed as a reliable
witness, it becomes difficult for us to believe that the
other persons had seen the actual part of the assault.
By the time he had raised cries for help, the two
persons had run away. Ganesh Bhandari and Giro
Mandal are not only villagers but neighbours of P.W. 8.
If he had seen them stabbing the deceased, he would
have said so in his fardbeyan statement.
27. On the contrary, he has spoken about
only two loongi-clad people running away from the
house. It was only when he came back to his mother,
he saw that she had died out of cut/incised injuries.
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
28. P.W. 8, therefore, had not made the
correct statement either in his fardbeyan or before the
Trial Court. The deceased was attacked a number of
times, which fact would appear from the post-mortem
examination of the deceased which was held on
29.10.2004 at about 07:00 AM. There were four
incised wounds on her body, injuring her on her cheek,
neck, right shoulder and below the thyroid cartilage.
This was the cause of death, as the trachea and the
jugular veins and muscles were completely damaged.
29. All this had happened in the night in a
small house where P.W. 8 had been sleeping along with
his mother (deceased) and his younger brothers.
Surprisingly, pellets were also found spread over on the
bed of the deceased. There is no gun-shot wound on
the deceased. This, therefore, completely excludes the
possibility of use of a fire-arm.
30. Where had those pellets come from?
31. We are also very surprised at the
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
deposition of the investigator in the other Trial that he
had found approximately fifty pellets at the place of
occurrence, spread over the bed.
32. What would have been the reason for
the presence of the pellets on the bed of the deceased
when she has not received any gun-shot wound. That
she was killed from close distance is apparent from the
fact that she has died of incised wounds. The assailants
must have been very close to the deceased. If anyone
of them would have fired, she would surely have
received gun-shot wounds. That apart, the gun-shot
wound would have been heard by all the inmates of the
house.
33. None of them claimed that they had
heard any gun-shot.
34. Was this then all the imagination of
P.W. 8 and other witnesses?
35. Building upon the story put forth by
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
P.W. 8, the other witnesses, viz., the mother-in-law and
the sister-in-law of the deceased have also spoken
about having seen the appellants committing the crime
or keeping a vigil and waiting in the wings before they
fled away.
36. All this thus appears to be incorrect.
37. We say so for the reason that the
occurrence had taken place at about 12:30 P.M. in the
night intervening between 27/28 th of October. The
mother-in-law and the sister-in-law of the deceased had
woken up and were told by P.W. 8 that he had seen two
persons running away.
38. Had the mother-in-law and the sister-
in-law of the deceased seen the appellants, they would
have said so to the son of the deceased. Otherwise,
there would have been no reason for P.W. 8 not to
name the appellants in the FIR. The police had come to
the house on the next morning and by that time all the
persons of the household must have talked amongst
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
themselves. Till such time that the fardbeyan was
recorded, there was no unanimity with respect to the
identity of the assailants.
39. All that was stated to the police for the
first time by P.W. 8 was that two persons had entered
the house and was seen running away. The informant
had got up on the garbled voice of her mother, as if she
was being strangulated or hit by something. It was only
when P.W. 8 (informant) saw two persons running away
that he shouted and called his grandmother and aunt.
Thus, none of them had seen the occurrence.
40. We have no doubts that P.Ws. 3 and 5
have only toed the line of the prosecution and have
talked about the appellants having participated in the
crime. This was perhaps because of an earlier incident
and a general impression in the village about the
deceased being a sorcerer or a person who practiced
witchcraft.
41. From the evidence on record, it
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
appears that the village had several segments. The
deceased and her family stayed in the Harijan Tola,
whereas the others including the appellants resided in
the Bhagat Tola. Because the son of Ganesh Bhandari
was ill for some time, the lack of education in the
village made him and others feel that it was because of
the witchcraft of the deceased that the child had fallen
ill. As it is, all the witnesses have alleged that the
deceased was always referred to as a person who
practiced witchcraft. This was the impression of the
village.
42. The deceased must have been killed
for such act only by the persons of the village. But
there is nothing on record which would indicate any
other purpose of killing the deceased.
43. All the members of the family were
sleeping in the night of the occurrence and all of them
were unprotected and unarmed. Even the house in
which the occurrence took place was a hut with
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
practically no doors and windows. The deceased
belonged to a poor strata of society and so are the
appellants. Because there had been a Panchayti some
three days ago, the needle of suspicion veered around
Ganesh Bhandari and his associates.
44. We are at a loss to understand as to
how the appellants were convicted and sentenced for
the offence under Section 120B of the IPC, without
there being even an iota of evidence with respect to
conspiracy. When was the conspiracy hatched and by
whom and in what manner is not known. Still conviction
has been recorded under Section 120B of the IPC and
separate sentence has been awarded to all the appellant
for the offence of conspiracy.
45. At this stage, it is very interesting to
go through the deposition of the investigator/Vinod
Narayan (P.W. 10) in Sessions Trial No. 1115 of 2008.
He was the officer-in-charge of Amarpur police station
at that time. He received an information on 28.10.2004
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
that a person in village Bhadaria has been killed. There
were no further details available with him. He
proceeded to the P.O. and learnt that the mother of Raj
Kumar Das had been killed. Her name was Dulari Devi.
He had recorded the fardbeyan of the son of the
deceased. He took up the investigation and recorded
the further statement of Raj Kumar Das. He was made
to understand that the deceased was killed because of a
suspicion amongst villagers about her practicing
witchcraft.
46. One Kiro Mandal was named by the
witnesses, who was a relative of appellant/Ganesh
Bhandari. The inquest report was prepared, which was
signed by Mantu Das and Santu Das. The occurrence
had taken place in a hut. There was no door found by
him in the house. It was a two room hut and in one of
the rooms, the deceased was found to be sleeping.
There was large amount of blood below the cot. He was
also told by the witnesses that the mother-in-law and
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
the sister-in-law of the deceased were also sleeping on
the verandah. He had found 47 pieces of the pellets on
the bed. He then recorded the statements of all the
persons of the house and others including the Mukhiya,
who had held a Panchayati and all of them had
supported the occurrence.
47. On being cross-examined, he has
deposed that he did not record as to when did he come
to know about the rumour of a person having been
killed in the village. He had reached the P.O. at about
06:45 A.M. in the morning of 28.10.2004. From that
time onwards, he had started the investigation. In two
days of his investigation, the informant/Raj Kumar Das
had not taken the name of appellants/Sunil Mandal and
Ashok Mandal. Even witnesses Mantu Das, Niranjan
Sharma, Sanjay Kumar Bhagat, Santu Das and Jayant
Lal Mishra had not spoken about the names of the
appellants.
48. What does this signify?
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
49. Till the time the FIR was registered,
we repeat, the names of the assailants were not known
to any one of the family members including the
informant.
50. This puts the entire case of the
prosecution to peril. The deceased was killed perhaps
for the charge against her of practicing witchcraft. But
who killed her could not be resolved.
51. We have great difficulty in believing
the statements of Raj Kumar Das (son), Reshma Devi
(mother-in-law) and Sangita Devi (Sister-in-law) to be
correct so far as the accusation against the appellants
are concerned.
52. For the absence of any evidence
suggesting any conspiracy, the conviction under Section
120B of the IPC is also misplaced.
53. For the afore-noted reasons, we find
that the Trial Court in both the Trials has gone wrong in
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
convicting the appellants and sentencing them for the
offence of murder and conspiracy.
54. The conviction of the appellants are
thus set aside. They are acquitted of all charges levelled
against them.
55. All the three appeals are allowed.
56. Appellants/Ashok Mandal and Sunil
Mandal (in Cr. App. (DB) No. 1098 of 2017) are on
bail. They are discharged of their liabilities under their
bail bonds.
57. Appellants/Panchu Harijan and Ganesh
Bhandari (in Cr. App. (DB) Nos. 1129 of 2017 and
1131 of 2017 respectively) are in jail. They are directed
to be released from jail forthwith, if their detention are
not required in any other case.
58. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
Patna High Court CR. APP (DB) No.1129 of 2017 dt.02-05-2024
59. The records of this case be returned to
the Trial Court forthwith.
60. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J.)
(Jitendra Kumar, J.)
manoj/krishna-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.05.2024
Transmission Date 06.05.2024
