Patna High Court
Santosh Mandal And Ors vs The State Of Bihar on 14 November, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.167 of 2013
Arising Out of PS. Case No.-78 Year-2005 Thana- GOGRI District- Khagaria
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1. Santosh Mandal and Ors. S/O Late Bhupi Mandal Resident Of Jamalpur
Kurmi Tola, P.S. Gogri, District Khagaria.
2. Balmiki Mandal S/O Jyoti Mandal @ Yogendra Mandal Resident Of
Jamalpur Kurmi Tola, P.S. Gogri, District Khagaria.
3. Manoj Mandal S/O Kedar Mandal Resident Of Jamalpur Kurmi Tola, P.S.
Gogri, District Khagaria.
4. Mithilesh Mandal S/O Paras Mandal Resident Of Jamalpur Kurmi Tola, P.S.
Gogri, District Khagaria.
5. Sikandar Mandal S/O Late Jagat Mandal Resident Of Jamalpur Kurmi Tola,
P.S. Gogri, District Khagaria.
6. Guthan Mandal S/O Rajendra Mandal Resident Of Jamalpur Kurmi Tola,
P.S. Gogri, District Khagaria.
7. Dipak Mandal S/O Late Bhupi Mandal Resident Of Jamalpur Kurmi Tola,
P.S. Gogri, District Khagaria.
8. Bhikhari Thakur S/O Kailash Thakur Resident Of Jamalpur Kurmi Tola, P.S.
Gogri, District Khagaria.
9. Kailsh Thakur S/O Late Sahdeo Thakur Resident Of Jamalpur Kurmi Tola,
P.S. Gogri, District Khagaria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anil Kumar Choudhary, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date : 14-11-2024
The present appeal have been filed under Section
374 (2) of the Code of Criminal Procedure, 1973 (hereinafter
referred as 'Cr.P.C.') challenging the Judgment of conviction
and order of sentence dated 18.02.2013, to undergo simple
imprisonment of two years and fine of Rs. 500/- under Section
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147 of I.P.C, in default of fine simple imprisonment of one
month, simple imprisonment of one year and fine of Rs. 1,000/-
under Section 323 of I.P.C, in default of fine simple
imprisonment of one month and simple imprisonment of one
month under Section 341 of I.P.C by the learned Gajendra
Prasad Ad-hoc Additional District and Sessions Judge I,
Khagaria (hereinafter referred to as the learned 'trial Court') in
Sessions case No. 361 of 2005 arising out of Gogri P.S. Case
No. 78 of 2005, GR No. 373/05 and all the sentences have to
run concurrently.
2. Heard Anil Kumar Choudhary learned counsel
for the appellant and , learned APP for the State.
3. The brief fact leading to the filing of the present
appeal, as per fardbeyan of the informant Banbari Lal (PW-6)
that at approximately 8:15 AM on the 30.03.2005, he had gone
to raise the outer wall of a private Shiv temple. While some
bricks had been laid, a group of individuals, namely Balmiki
Mandal, Mithilesh Mandal, Paras Mandal, Santosh Mandal,
Bhupi Mandal, Deepak Mandal, Manoj Mandal, Sikandar
Mandal, Kailash Thakur, and Bhikhari Thakur, all residents of
Kurmi Tola, arrived at the location armed with sticks, spears,
and country-made pistols.
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3. The aforementioned individuals allegedly began
abusing him and obstructing the construction work. The
informant asserted that the land and the temple belonged to him
and that he would repair the boundary wall. Subsequently,
Balmiki Mandal, armed with a stick, provoked other accused
persons to assault the informant. Balmiki Mandal struck the
informant with a stick on the informant's head causing severe
injury. Santosh Mandal allegedly struck him on the hand with a
stick, resulting in the fracture of his right-hand finger. When the
informant's brother, Rajkumar Khetan, intervened to rescue him,
he was also assaulted with sticks, causing injuries. Thereafter,
Guthan Mandal S/O Rajendra Mandal arrived at the scene,
armed with a pistol, and threatened them, stating that he would
kill them if they did not leave and fired a shot in furtherance of
threat.
4. On the basis of the Fardbeyan of the informant
recorded by the police on 30.03.2005, at 9:45 AM, while
undergoing treatment at the Referral Hospital, Gogri. Based on
this, P.S. Case No. 78 of 2005, GR No. 373/05 dated 30.03.2005
was registered in Gogri police station under Sections 147, 148,
149, 323, 341, 307 of Indian Penal Code and 27 of Arms Act.
5. The learned counsel for the appellant has
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confined his arguments to challenging the sentence imposed by
the trial court in its judgment of conviction and order of
sentence dated 18.02.2013. The counsel stated that the incident,
arose out of a pre-existing land dispute where the prosecution
party acted as aggressors and obstructed ongoing boundary wall
construction. He further stated that the trial court allegedly
failed to provide a summary of the evidence, thereby omitting
the rationale for the conviction and disregarding the written
arguments and defence submissions made on behalf of the
appellants. He further stated that the court overlooked material
contradictions in the testimonies of prosecution witnesses and
neglected to consider the applicability of the Probation of
Offenders Act for the appellants, who were first-time offenders.
6. During the course of the trial, the prosecution
examined altogether 8 (Eight) witnesses, namely, PW-1 Raj
Kumar Khetan, PW-2 Narayan Khaitan, PW-3 Nitish Kumar
Khetan, PW-4 Palji Yadav, PW-5 Hari Kishore Khaitan, PW-6
Banbari Lal (informant), PW-7 Dr. Janardhan Prasad Yadav, and
PW-8 Abhay Pratap Yadav (I.O.) have been examined.
7. PW-1 Raj Kumar Khetan in his examination-in-
chief has stated that On March 30, 2005, Banbari Lal, along
with his brother Banbari Lal (informant) and son (PW-3 Nitish
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Kumar Khetan), was engaged in reconstructing the walls of the
Shiv Temple when the accused persons namely Balmiki Mandal,
Mithilesh Mandal, Bhupi Mandal, Santosh Mandal, Deepak
Mandal, Sikander Mandal, Bhikari Thakur, Kailash Thakur, and
Manoj Mandal arrived and objected to the work. Upon the
informant's (PW-6 Banbari Lal) refusal to stop, Balmiki Mandal
verbally abused him and incited others to attack him.
8. Subsequently, the accused persons collectively
assaulted the informant (PW-6) with 'lathis' (sticks). Balmiki
Mandal struck the informant on the head with the intent to kill,
resulting in a severe head injury. He further attacked the
informant's right hand, causing a fracture to one of his fingers.
When the son (PW-3 Nitish Kumar Khetan) of PW- 1 (Raj
Kumar Khetan ) attempted to intervene, Balmiki Mandal struck
him on the temple and hand, and Santosh Mandal pushed him
aside. Additionally, Santosh Mandal assaulted PW-1 with a
stick. During the attack, Guthan Mandal brandished a firearm,
fired into the air, and ordered them to flee.
9. Following the incident, the injured individuals
sought medical treatment at the Referral Hospital, Gogri, where
the informant's (PW-6 Banbari Lal) fardbeyan was recorded by
the police.
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10. PW-1 in his cross-examination has stated that
adjacent to the temple premises is a Dharamshala, with some
land lying to its north, which is south of the main road. PW-1
further stated that both the temple and the Dharamshala have
existed since 1942 and are situated on two plots of land,
although he could not confirm if the land bore Jamabandi No.
397. He further stated that the area became valuable after the
formation of the Gogri Subdivision in 1992, leading to an
increase in land prices.
11. PW-1 further stated that on the day of the
occurrence i.e., 30.03.2005, he, along with his brother (the
informant) and other workers, was reconstructing the temple
wall. Around 8:30 to 9:00 AM., individuals from Kurmi Tola
approached and claimed the land belonged to them, not the
temple, demanding the work to stop. Despite their objections,
the work continued near the roadside north of the Shivalaya.
12. PW-1 further stated that During the altercation,
he got injured by a side blow, but he saw who attacked him. The
incident caused a commotion, with around 50-100 people
running in different directions. PW-1 stated that his brother's
wife and other family members were also injured during the
chaos. He further stated that after the incident, they returned
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home and then went to the hospital for treatment.
13. PW- 2, Narayan Khetan, stated in his
examination-in-chief that the incident occurred on 30.03.2005,
around 9:00 AM, near a temple approximately 150 yards away
from his home. Upon reaching the spot, he observed Balmiki
Mandal, Mithilesh Mandal, Bhupi Mandal, Santosh Mandal,
Deepak Mandal, Manoj Mandal, Sikandar Mandal, Kailash
Thakur, Bhikhari Thakur, and Budhhan Mandal were present in
the temple premises armed with sticks, bricks, and pistols.
14. He further stated that he saw Banwari Lal
(Informant) and Rajkumar Khetan bleeding, and they informed
him that the accused had assaulted them. He also noticed
injuries on his nephew Nishant Kumar and his wife, reportedly
caused by brick-throwing. He further stated that, according to
them, Balmiki Mandal struck with a stick while other threatened
and abused them, including firing pistols. The injured
individuals were taken to the hospital for treatment, and PW-2
statement was later recorded by the police.
15. PW-2 in his cross-examination stated that he
was at home at the time of the incident and arrived afterward,
where he saw the injured. He stated that his wife, who had gone
to the temple to pray, told him about the brick-pelting incident.
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He further stated that there was opposition to constructing a
brick boundary wall for the Dharamshala and that stone-pelting
had occurred the same day. he further stated that when he
reached the temple premises, he saw about 10-15 accused
persons inside and accompanied Banwari Lal.
16. PW-3, Nitish Kumar Khaitan, in his
examination-in-chief stated that the incident occurred on
30.03.2005
, at approximately 9:30 a.m. He was heading toward
the temple when Balmiki Mandal, Mithilesh Mandal, Bhupi
Mandal, Deepak Mandal, Santosh Mandal, Manoj Mandal, and
Sikandar Mandal arrived and interrupted the work being carried
out by his father (PW-1). When the accused claimed ownership
of the temple, an argument ensued. Balmiki Mandal struck his
uncle Banwari lal (informant) on the head with a stick, while
the others threw bricks, injuring his father (PW-1). His sister-in-
law was also hit by a brick on her leg as she was leaving the
premises of the temple. Santosh Mandal pushed his sister-in-
law, causing her to fall and sustain a finger injury. The injured
were taken to the Referral Hospital in Gogri for treatment.
16.1. PW-3 in his cross-examination stated that
the dispute arose over fencing land surrounding the temple,
which the accused claimed as their own. The temple had existed
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
since before his birth, with no prior disputes over its premises.
He further stated that the conflict was not about the temple itself
but the surrounding land.
16.2 PW-3 further stated that he saw his father
being beaten near the temple, and later accompanied him to the
hospital. Along the way, his father named the accused
responsible for the assault.
17. PW-4. Palji Yadav in his examination-in-chief
that he work as a mason. The incident took place on 30. 3. 2005
at 8-9 AM. He came from Jamalpur to work to lay bricks in the
temple. Banwari, Khetan etc. had called him for the work. His
brother Rishidev Yadav mason and other labourers were also
with me. 200-400 bricks had already been laid. On day of the
occurrence more than ten people came but he did not recognize
them. He did not even know their names. They asked to stop the
work and one person hit Banwari Lal (informant) on the head
with a stick, then PW-4 ran away along with his companions.
17.1 PW-4 in his cross-examination stated when
the work started, there was a little opposition, but it increased on
the second day. There was no fight on the first day. He did not
recognize the accused.
18. PW-5, Hari Kishore Khetan in his
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
examination-in-chief stated that the incident occurred on
30.03.2005, at around 9:30 AM. He was performing pooja at his
house, when he went to the temple and saw a crowd gathered.
His brother, Banwari Lal (informant), was overseeing
construction work on the temple wall when several individuals,
including Balmiki Mandal, Mithilesh Mandal, Bhupi Mandal,
Guthan Mandal, Kailash Thakur, Bhikhari Thakur, Manoj
Mandal, and others he could not recall, stopped the work.
Balmiki Mandal struck Banwari Lal (informant) on the head
with a stick, injuring him. Raj Kumar Khetan (PW-1) sustained
injuries to his hand and temple from a stick, and his wife was
struck on the leg by a brick. All injured individuals received
treatment at the hospital. He further stated that the temple and
its land are his personal property and that he possesses the
relevant documents, which he is willing to submit.
18.1 PW-5 in his cross-examination stated that he
was not injured in the incident. He stated that he was praying at
home when the altercation began. He further stated the temple
and dharamshala land measure approximately 3 bighas and 16
kathas, inherited from his ancestors over 100 years ago. He
further stated that he accompanied Banwari Lal (informant) to
the hospital, where they stayed for about half an hour before
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
returning home.
19. PW-6, Banbari Lal (informant) in his
examination-in-chief stated that the incident occurred on
30.03.2005, at approximately 8:15 AM. He stated that he was
supervising construction work in the temple courtyard when ten
individuals entered the premises, including Balmiki Mandal,
Guthan, Manoj Mandal, Mithilesh Mandal, Deepak Mandal,
Santosh Mandal, Kailash Thakur, and Bhikhari Thakur. They
demanded that the work be stopped. PW-1 refused, asserting it
was a personal matter. At this, Balmiki Mandal threatened him
and struck him on the head with a stick, causing bleeding. When
PW-1 reiterated his refusal to stop the work, Balmiki struck him
again, injuring his hand as he attempted to block the blow. The
family members gathered, and the accused fled. The informant
was taken to the hospital by his family, where his statement was
recorded by the police. He further stated that his younger
brother Raj kumar, nephew, and son were assaulted during the
incident, while his wife was injured by a brick.
19.1 PW-6 in his cross-examination stated that he
refutes the accused's claim that the land belonged to a public
temple, asserting that the Shiv temple of Lord Trilokinath had
been under his family's care for generations. He further stated
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
that the dharamshala predates the temple and that his elder
brother is more familiar with the land's records. He further
stated to produce documents proving his ownership. While he
acknowledged the land is valuable and located in the heart of
Jamalpur market, he stated that no one had protested or claimed
personal ownership of the land before this incident. He further
stated that the accused protested for the first time on the day of
the incident. He further stated that he felt unconscious after
being struck and he went to the hospital directly after the
incident.
20. PW-7 Dr. Janardan Prasad Yadav in his
examination-in-chief stated that on 30.03.2005 while he was
posted at referral Hospital Gogari. He examined Nitish Khetan
s/o Raj Kumar Khetan R/o Vill- Jamalpur Gogari P.S.- Gogari,
Dist-Khagaria the same day 9:50 PM, and found following
injuries.
1. Abrasion 2"X1" on left side of elbow Joint
caused by hard and blunt substance simple in
nature. Patient was admitted, X-Ray show
N.A.D and patient did not submit X-Ray.
Age of injuries within 12 hours, color - Red,
M.I. -Mole on left side.
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
20.1 He further stated that on same day at 9:45
PM, he examined Smt. Shanti Devi wife of Narayan Kumar
Khetan of village Jamlapur Gogari P.S. Gogari, District -
Khagaria same Abrasion and found following injuries.
1. Abrasion 2"XI" on left ankle Joint caused by
hard blunt substance.
21. PW-8, Abhay Pratap Yadav in his examination-
in-chief stated that on 30.03.2005, he was posted as Sub
Inspector in Gogari Police Station. The SHO was Sub Inspector
Virendra Kumar Singh. On 30.03.2005 at 9:45 AM, the
statement of the injured Banwari Lal was taken on the basis of
the OD slip of the doctor in the referral hospital Gogari. The
statement is in handwriting and signature of PW-8.
21.1 He further stated that on the basis of the
statement, Gogari police station case number 78/05 dated
30.03.2005 has been registered. He further stated that fear
taking charge of the investigation, he first went to the place of
occurrence. The place of occurrence is the premises of Shri
Trilokinath Harishankar temple situated in Jamalpur market. He
further stated the location and mapping of the temple. He further
stated that he recorded the statements of the injured person and
his brother, Rajkumar Khetan. Subsequently, the statement of
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
Banwari Lal Khaitan was also recorded, followed by the
statements of witnesses Narayan Khetan and Harikishore
Khetan. The statements of witnesses Nitish Khaitan and Shanti
Devi were recorded, and their injury reports were issued. Injury
reports for Banwari Lal Khaitan, Rajkumar Khetan, Nitish
Khetan, and Shanti Devi were also provided. He further stated
that on 30.03.2005, statements from masons Palji Yadav and
Rishidev Yadav were taken, both of them corroborated the case.
He further stated that a raid was conducted, resulting in the
arrest of the named accused, whose statements were recorded
before being sent to judicial custody on 31.03.2005. He further
stated that the referral hospital's report was received on
23.03.2005. The investigation of the site was conducted, and
based on the evidence gathered, a charge sheet was filed against
the named accused.
21.2 PW-8 in his cross-examination stated that he
had not examined any documents related to the land of the
Triloki Nath Harishankar temple during the investigation, nor
were any such papers presented by the informant. He further
stated that no statements were recorded from any independent
witnesses concerning the land of the temple or Dharamshala. He
further stated that he refuses that the dispute arose from a
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
sudden quarrel to stop the construction of the boundary wall. He
further stated that PW-3 Nitish Khetan stated during his
deposition that someone packed the bricks, while the mason
mentioned there was no sound of gunfire. He further stated that
the investigation and witness statements revealed that the
accused were attempting to prevent the wall from being built,
and brick-laying was observed at the site during the inspection
as part of the wall construction. He further stated that he could
not confirm whether the Shiv temple was over a thousand years
old. Although locals claimed the land was public. He further
stated that while the statement of Rishidev Yadav was recorded
as an independent witness, he also did not report any gunfire or
its sound.
22. The learned counsel for the appellant argued
that the trial court has failed to consider the facts that the
occurrence taken place in the background of land dispute
between the parties in which prosecution party were aggressor.
It has been contended that on this basis the case has not been
established beyond a reasonable doubt. He further argued that
the trial court failed to summarize the evidence and provide a
clear rationale for the conviction, disregarded the appellants'
written arguments and defence submissions, overlooked
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
contradictions in prosecution witnesses' testimonies, and did not
consider the applicability of the Probation of Offenders Act for
the first-time offenders.
23. The learned Additional Public Prosecutor
argued that there were no previous enmity between the parties
related to the land. Thus, the case is sufficiently proven against
the accused. It has been observed that the appellants have been
convicted for maximum period of two years and no previous
conviction is proved against him.
24. On perusal of all evidences, it is evident to note
that the appellants has been rightly convicted in the Judgment of
conviction dated 18.02.2013 under Sections 147, 323 and 341 of
I.P.C and after perusal of the trial Court record, I find that this is
the first offence of the appellants and further appellants have not
been convicted earlier in any other matter. There is no adverse
report against them about their conduct and character otherwise
the same would have been brought to our notice by learned
counsel for the State. In my opinion having regard to the
circumstance of the case including the nature of the offence, and
the character of the offenders, it is expedient so to do instead of
sentencing him to any punishment or releasing him on probation
of good conduct, release him after due admonition under
Patna High Court CR. APP (SJ) No.167 of 2013 dt.14-11-2024
Section 3 of the Probation of Offenders Act, 1958. In such
condition there is no need to interfere in the judgment of
conviction dated 11.07.2013. So, this court does not find any
infirmity to disbelieve the judgment of conviction passed by the
trial Court.
25. The appeal stands partly-allowed.
(Ramesh Chand Malviya, J)
S.Katyayan/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.11.2024
Transmission Date 26.11.2024
