Patna High Court
Dhiraj Kumar @ Dhiraj Kumar Mandal vs The State Of Bihar on 3 October, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.536 of 2021
Arising Out of PS. Case No.-34 Year-2018 Thana- LAHERIYASARAI District- Darbhanga
======================================================
Dhiraj Kumar @ Dhiraj Kumar Mandal, S/o Sri Vijay Mandal @ Vijay
Kumar Mandal, R/o Village/Mohalla-Donar, P.S.-Laheriasarai, District-
Darbhanga.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 811 of 2021
Arising Out of PS. Case No.-34 Year-2018 Thana- LAHERIYASARAI District- Darbhanga
======================================================
1. Chandan Das @ Chandan Kumar Das, Son of Late Raju Das @ Raj Kumar
Das;
2. Md. Ashraf, Son of Md. Ayub;
Both are resident of Village-Sahara India Gali, Donar, P.S.-Laheriasarai
(Benta O.P.) and District-Darbhanga.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 536 of 2021)
For the Appellant/s : Mr. Syed Ashfaque Ahmad, Adv.
Mr. Umesh Kumar Verma, Adv.
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 811 of 2021)
For the Appellant/s : Mr. Kedar Jha, Adv.
Mr. Arun Kumar, Adv.
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 03-10-2024
Both the appeals have been taken up
together and are being disposed off by this common
judgment.
2. We have heard Mr. Syed Ashfaque
Ahmad, the learned Advocate for appellant/Dhiraj Kumar
@ Dhiraj Kumar Mandal in Cr. Appeal (DB) No. 536 of
2021 and Mr. Kedar Jha & Mr. Arun Kumar, the learned
Advocates for the appellants/Chandan Das @ Chandan
Kumar Das and Md. Ashraf in Cr. Appeal (DB) No. 811
of 2021 respectively.
3. The State, in the both the appeals, has
been represented by Mr. Abhimanyu Sharma, the
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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learned Addl. Public Prosecutor.
4. All the three appellants in the two
appeals have been convicted for the offences under
Sections 364, 302, 201 and 120(B) read with Section
34 of the Indian Penal Code (in short the IPC) vide
judgment dated 29.06.2021 passed by the learned 2nd
Addl. Sessions Judge, Darbhanga in Sessions Trial No.
442 of 2018, arising out of Laheriasarai (Benta O.P.)
P.S. Case No. 34 of 2018. By order dated 12.07.2021,
they all have been sentenced to undergo imprisonment
for life, to pay a fine of Rs. 10,000/- each and in default
of payment of fine, to further suffer R.I. for a period of
one year for the offence under Section 302 of the IPC;
to undergo imprisonment for ten years, to pay a fine of
Rs. 5,000/- each and in default of payment of fine, to
further suffer R.I. for a period of six months for the
offence under Section 364 of the IPC; to undergo
imprisonment for three years, to pay a fine of Rs.
1,000/- each and in default of payment of fine, to
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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further suffer R.I. for a period of three months for the
offence under Section 201 of the IPC and to undergo
imprisonment for life, to pay a fine of Rs. 10,000/- each
and in default of payment of fine, to further suffer R.I.
for a period of one year for the offence under Section
120(B) of the IPC.
5. All the sentences have been ordered to
run concurrently.
6. One Rahul Kumar Das is said to have
been kidnapped and then killed by the appellants.
Allegedly, the dead-body was recovered on the
confession of appellants/Chandan Das @ Chandan
Kumar Das and Md. Ashraf.
7. The deceased died of several incised
wounds on his body. The post-mortem examination on
the dead-body was conducted on 01.02.2018 by Dr.
Vijay Pratap Singh (P.W. 6). He had found one incised
wound on the throat of the deceased of a big dimension.
The margins of the wound would be found to be clean
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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cut and the whole area filled with blood and clots.
Because of the afore-noted wounds, all major vessels,
trachea and esophagus were damaged. On the right
forearm of the deceased also, there were four incised
cuts. There were multiple wounds on the chest of the
deceased as well. Cumulatively, the injuries led to
bleeding, neurogenic shock and ultimate death of the
deceased. The time of death was assessed between 14
to 20 hours of the post-mortem examination.
8. The Doctor (P.W. 6) had also found
traces of alcohol in the stomach of the deceased.
9. For some reason or the other, the
Viscera was not preserved.
10. The post-mortem report (Exhibit-7) as
also the deposition of Dr. Vijay Pratap Singh (P.W. 6)
completely establish and prove that the deceased died a
homicidal death. The deceased was slashed to death
brutally.
11. The brother of the deceased, namely,
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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Rohit Kumar Das (P.W. 5) had lodged the written report
regarding the kidnapping of the deceased. On his
written report, initially, a case was instituted vide
Laheriasarai (Benta O.P.) P.S. Case No. 34 of 2018,
dated 31.01.2018 under Section 364/34 of the IPC,
naming the appellants as also one Nandan Das, who
does not appear to have been charge-sheeted. With the
recovery of the dead-body a day after, Sections 302,
201 and 120(B) of the IPC was added later.
12. According to the written report,
referred to above, P.W. 5 received a message from his
home on 31.01.2018 that his brother has been
kidnapped. He came back to his maternal home, where
both the brothers resided. One Md. Hira (P.W. 2) told
him that on the same day at about 11 O'clock, he had
seen his brother being assaulted by the appellants in
front of the house of one Sahdeo Master. Thereafter, on
the point of pistol, his brother was taken away towards
Dilawarpur. For the reason that appellant/Chandan Das
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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had earlier killed his father in the year 2013, P.W. 5
suspected that the kidnapping of his brother is the
handy-work of appellant/Chandan Das and his
associates, whose names he learnt from Md. Hira (P.W.
2).
13. At the trial, P.W. 5 disclosed certain
facts, which clearly account for the false framing of the
appellants in the instant case. The deceased was only
18 years of age and had left his studies. For several
years, he had been working temporarily as a sales
person in a utensil shop.
14. According to P.W. 5, the
victim/deceased was searched for at several places
including the house of appellant/Chandan Das, but no
clue could be found. In all these efforts, his uncles,
namely, Baiju Kumar Das (P.W. 3) and Laxman Das
(P.W. 4) and one Shatrughan Das (not examined)
accompanied him and the policemen. On the next date,
i.e., 01.02.2018, the police officer (P.W. 7) called him
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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on his mobile telephone at about 8 O' clock in the
morning and informed him that a dead-body is lying in
the D.M.C.H. and that he should come and identify the
same. P.W. 5 along with others reached D.M.C.H. and
identified the dead-body to be of his brother.
Thereafter, the post-mortem examination was conducted
on the dead-body. After the identification of the dead-
body, P.W. 5 claims to have met the mother of
appellant/Chandan Das, who could not offer any
information about either Chandan or the deceased.
15. The mother of appellant/Chandan Das,
namely, Nirmala Devi had earlier filed a case against
P.W. 5 and the deceased for the murder of her another
son, namely, Kundan Das vide Laheriasarai P.S. Case
No. 204 of 2015. In that case, the deceased was also
arrested, but because of his juvenility, he was confined
in children's home for about one and a half year.
16. There is yet another story unfolded by
P.W. 5. One married daughter of his uncle/Satrughan
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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Das had married one Suraj Das for the second time,
during the subsistence of her earlier marriage with one
Ashok Das. Suraj Das is none else but the cousin of the
appellant/Chandan Das. The second marriage of the
daughter of the uncle of P.W. 5 had given rise to local
controversy, for which a Panchayati was convened and
socially, the couple were boycotted. However, he
admitted that his uncles and Md. Hira (P.W. 2), who was
his source of information and which information has
been acted upon, had very close association.
17. From the deposition of P.W. 5,
therefore, it becomes very clear that there was enmity
with appellant/Chandan Das from before. This enmity
was further fuelled by the marriage of Laxmi Devi, the
daughter of Laxman Das (one of the uncles of P.W. 5)
to the cousin of appellant/Chandan Das.
18. The other filtrate of the deposition of
P.W. 5 is that from no other source was it confirmed by
him that the appellants had, at about 11 O' clock on
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
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31.01.2018
, assaulted the deceased and took him to
some unknown destination.
19. Thus, for all practical purposes, the
information provided by P.W. 2 was the only source
which, perhaps, was believed by the investigating
agency.
20. In this context, we are pretty amazed
to examine the evidence of Md. Hira (P.W. 2). He knew
the deceased very well. He claims to have seen the
deceased being assaulted by four persons, but he did not
know them at all. He had no idea about their names.
He had intervened and had separated the deceased from
the appellants. After having said that before the Trial
Court, he identified the appellants in the dock. However,
he did not make any statement before the Trial Court
indicating that he saw the appellants taking away the
deceased to any unknown destination. All that he said
was that those persons who were assaulting the
deceased went away but where, he had no idea.
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
21. What is even more surprising is that
P.W. 2 has claimed that he first met P.W. 5 (informant)
after two days of the occurrence. Though P.W. 5 has
claimed to learn about the earlier incident from P.W. 2
and based on that information he had filed the written
report, but P.W. 2 had an opportunity to tell him about
what he had seen only two days after the lodging of the
case. This only demonstrates that perhaps P.W. 5,
because of old enmity, had falsely framed the
appellants.
22. In this fact-scenario, it is very difficult
for us to believe that P.W. 2 had actually seen the
appellants assaulting the deceased and taking him away
to an unknown destination and parting such information
to P.W. 5 for him to lodge the case of kidnapping
against the appellants.
23. Testing the case further, we have
found that Baiju Kumar Das and Laxman Das (P.Ws. 3
and 4 respectively) have also, in their deposition,
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
narrated about the earlier case lodged by the mother of
appellant/Chandan for the murder of the brother of
Chandan and Laxmi, a married niece having married the
cousin of appellant/Chandan, which was socially
boycotted. Apart from this, they had nothing else to
offer. All the information which they had, therefore, was
based on what P.W. 5 had told them.
24. However, as the investigation
proceeded, the appellants were arrested.
25. On 01.02.2018, in presence of P.W. 4,
the police had seized three mobile telephones from the
possession of Md. Ashraf (Ext.- 1). From that place
only, which was the house of the in-laws of
appellant/Chandan, blood stained T-shirts of Chandan
and Ashraf were also recovered. Apart from the wearing
apparels, referred to above, a knife, a pistol, one
cartridge of rifle and two bullets were also recovered
from the possession of appellant/Chandan (Ext.- 2).
blood stained earth, too, was seized (Ext.- 3).
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
Appellants/Ashraf and Chandan were arrested in his
presence (Exts.- 4 and 5).
26. We have referred to such part of the
deposition of P.Ws. 3 & 4 only for the purposes of
demonstrating that when the names of the appellants
were made known to the police, arrests and recoveries
were made.
27. The Investigator (P.W. 7) though
confirmed before the Trial Court that he had recovered
those articles and that appellants/Chandan and Ashraf
had made confessional statements leading to the
recovery of the dead-body from the banks of river
Kamla, but there is no recovery memo on record. There
is no witness to such recovery.
28. The story of recovery of dead-body at
the instance of two of the appellants is thus absolutely
incorrect. We say so also for the reason that P.W. 5
(informant) had earlier deposed that he was asked to
come to D.M.C.H. to identify a dead-body. Till that
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
time, it was not known that the dead-body was of Rahul
Kumar Das. In this connection, the absence of recovery
memo or P.W. 7 not naming any witness to the
recovery, assumes significance.
29. The appellants would not be too off the
mark in suggesting that such recovery was only a paper
work and nothing else.
30. Though P.W. 7 claims to have recorded
the statement of P.W. 2 on the day of the occurrence,
but the same has not been confirmed by P.W. 2. It
further appears from the deposition of P.W. 7 that P.W.
2 was made to give his statement under Section 164 of
the Cr.P.C. after fifteen days of the lodging of the FIR.
However, the deposition of P.W. 2 makes it very clear
that he was deposing before the Court for the first time.
31. This also completely demolishes the
prosecution case so far as the earlier incident of the
appellants assaulting the deceased is concerned.
32. With respect to the recovery of the
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
dead-body, P.W. 7 has candidly accepted that he did not
record any recovery memo nor did he inform the Offier-
in-Charge of the concerned police station about such
recovery.
33. We must also indicate that whichever
articles were seized by the Investigator, viz., the blood
stained T-shirts belonging to two of the appellants, blood
stained knife, etc., were sent for forensic examination.
34. The FSL report is on record.
35. No blood could be detected on the T-
shirts. Some blood was found on some of the articles,
but the serological reports were of no value, especially
when the recovery itself has become doubtful.
36. All this, therefore, leads to the only
conclusion that the deceased was killed while he was
intoxicated. Traces of alcohol was found in his gut.
Who killed him, remains a mystery.
37. What is further evident is that the
appellants have only been named in this case by P.W. 5
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
for the reason of the earlier dispute, viz., the murder of
the brother of appellant/Chandan Das and one of the
married daughters of the family marrying the cousin of
appellant/Chandan Das.
38. Nothing has come on record to point
towards the involvement of appellant/Chandan Das in
the killing of the father of P.W. 5 in the year 2013,
about which, P.W. 5 has only casually referred to in his
written report.
39. For the afore-noted reasons, we are
unable to sustain the judgment and order of conviction
and sentence.
40. The judgment and order of conviction
and sentence, therefore, is set aside and the appellants
are acquitted of all the charges levelled against them.
41. The appeals stand allowed.
42. All the appellants, above named, are in
jail. They are directed to be released forthwith from jail,
if not detained or wanted in any other case.
Patna High Court CR. APP (DB) No.536 of 2021 dt.03-10-2024
43. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
44. The records of these cases be returned
to the Trial Court forthwith.
45. Interlocutory application/s, if any, in
both the appeals, also stand disposed off accordingly.
(Ashutosh Kumar, J)
(Khatim Reza, J)
Praveen-II/Saurav
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 04/10/2024
Transmission Date 04/10/2024
