Kishore Mandal, Ashok Mandal and Bijay Singh vs The State of Jharkhand

In these appeals, the appellants Bijay Singh, Ashok Mandal and Kishore Mandal challenged the judgment dated 15.12.2003 passed by learned Sessions Judge, Dumka in Sessions Case No. 168 of 1996 whereby and whereunder he convicted the appellants u/s 302/34 of the IPC read with Section 120B of the IPC. The appellant Bijay Singh and Ashok Mandal also convicted u/s 27 of the Arms Act. All the appellants are sentenced to under go imprisonment for life for committing the offence u/s 302/34 IPC and they are also directed to pay fine of Rs. 5,000/- each and in default of the same to undergo R.l. for one year. The appellants Bijay Singh and Ashok Mandal are also sentenced to under go R.l. for seven years for the offence u/s 27 of the Arms Act and to pay fine of Rs. 2000/- each and in default of the same to undergo R.l. for six months.

As all the aforesaid three appeals arose from the common judgment of conviction and order of sentence, these appeals were heard together and are being disposed of by this common judgment.

The case of the prosecution, in brief, as per the fardbeyan of P.W. 12, Bagal Chandra Mandal is that on 17.7.1995 in the evening at about 7.30 to 8 p.m. while he was in front of his house, appellant Ashok Mandal, Kishore Mandal along with another person, who covered his face with a beard mask came there. The aforesaid beard- masked person asked his wife to call Kalicharan Mandal. The informant identified him as Bijay Singh resident of sonuadangl, by his voice. The informant''s wife called her son Kalicharan Mandal, Kalicharan Mandal came on call of his mother along with his son Pappu. It is alleged that the person having beard mask, asked Kalicharan for doing shuttering work in his building. Kalicharan expressed his inability to do the work for 10 to 15 days as his wooden planks were engaged somewhere else. Hearing the same, Bijay Singh and Ashok Mandal took out revolver and fired on Kalicharan causing serious injuries to him. Kalicharan fell on the ground. The informant and his wife then started crying and raising alarm. The neighbour, Ram Prasad Mandal put off light of his house and taking advantage of the darkness, the accused fled away. It is further alleged that at the time of fleeing, accused persons exploded a bomb, which caused injury to the grand son of informant, Pappu on his left hand. They rushed Kalicharan to hospital but he was declared dead.

On the basis of aforesaid statement, police instituted Dumka(T) P.S. Case No. 093 dated 17.7.1995 u/s 302/34 of the IPC and took up investigation. After completing the investigation, the police submitted charge sheet against the appellants along with one Ram Prasad Mandal u/s 302/34 of the IPC u/s 120B of the IPC and also u/s 27 of the Arms Act. Learned CJM, Dumka took cognizance of the offence and committed the case to the court of sessions as the offence u/s 302 of the IPC is exclusively triable by the court of sessions.

Learned court below framed charges against the appellants and Ram Prasad Mandal u/s 302/34 and 120(B) of the IPC. Appellant Ashok Mandal and Bijay singh were additionally charged u/s 27 of the Arms Act. The charges were read over and explained to the accused, including the appellants, to which they pleaded not guilty and claimed to be tried.

The prosecution examined altogether 20 witnesses in support of its case. The Inquest Report (Ext.7), Fardbeyan (Ext.5), Seizure list (Ext. 6), Injury Report of Pankaj Mandal (Ext. 3), Post: Mortem Report (Ext.4), the Certified copy of entry of non FIR 22 of 63 in the surveillance registrar of S.P., Dumka (Ext.8)., Certified Copy of order dated 14.3.1989 passed by Sr. R.K. Bhagat, Executive Magistrate, Dumka in T.R. Case No. 202 of 1988 (Ext.9) were also brought on record.

The statements of accused persons, including the appellants were, thereafter, recorded u/s 313 of the Cr.P.C. in which their defence is of total denial and false implication. One witness was also examined on behalf of the defence and number of documents (Ext.A to Ext.N) were also brought on record.

After considering the evidence available on record, the learned Sessions Judge, Dumka vide his judgment dated 15.12.2003 convicted and sentenced the appellants. Aggrieved by the same, the present appeals have been filed.

While assailing the judgment of learned court below, Sri Rajeev Sharma, Senior Advocate appearing for the appellant Bijay Singh has submitted that it is an admitted position that one of the accused who accompanied appellants Ashok Mandal and Kishroe Mandal had covered his face with beard mask. It is further submitted that the informant in his fardbeyan as well as P.W. 10 in her statement before the police had stated that they identified the aforesaid beard mask person by his voice it is admitted by P.W. 10 and P.W. 12 that the appellant Bijay Singh is resident of different Mohalla and they had no acquaintance and/or relation with him. It has also come in evidence that there is no close relationship in between the family of witnesses and Bijay Singh. Under the said circumstance, the claim of witnesses that they have identified appellant Bijay Singh by his voice cannot be accepted and it is not safe to convict the appellant Bijay Singh only on the basis of aforesaid shaky evidence. The appellant Bijay Singh has filed a complaint case against the S.I., N.C. Mishra, the then Officer-in-Charge, Dumka( T) police station vide Ext-A. For the said reason the appellant Bijay Singh has been falsely implicated in this case at the behest of police.

Sri B.M. Tripathy, learned senior counsel appearing for appellant Ashok Mandal and Sri Kaushlendra Prasad learned Counsel appearing for appellant Kishore Mandal have submitted that the occurrence took place at 7.30 to 8 p.m. It has come in evidence that on the date of occurrence there was a cloudy weather and it was also drizzling. There was no light on the electric pole as the bulb was fused from a long ago. Under the said circumstance, the claim of P.W. 10, 12 and 14 that they identified these appellants does not inspire confidence. The claim of P.W. 12 that he had witnessed the occurrence is also falsify by the evidence of P.W. 10 who has stated that after hearing the sound of firing and explosion of bomb, her husband and daughter-in-law arrived at the scene of occurrence. Thus, entire evidence of P.W. 12 is liable to be excluded from the arena of consideration. He further submitted that the statement of P.W. 10 is also not acceptable, because she had tried to falsely implicate coaccused Ram Prasad Mandal by saying that these appellants along with Bijay Singh came at the place of occurrence on being directed by Ram Prasad Mandal. There is enmity between the parties since long and therefore there is every chance of their false implication by the informant and their witnesses. It is further submitted that the police had not submitted charge sheet u/s 3/4 of the Explosive Substance Act, thus the manner of occurrence as stated by the witnesses that at the time of retreat the appellants exploded bomb due to that P.W. 14 received injury, is not correct. Even learned court below had not framed any charge against the appellant either u/s 3/4 of the Explosive Substance Act or any other Sections of the IPC for the injury caused to P.W. 14. At the time of post mortem examination, doctor found decomposition in the dead body in advance stage, which goes to show that the death of the deceased took place 3 to 4 days earlier from the time of post mortem examination. That being so, then the time of occurrence, place of occurrence and manner of occurrence as stated by the prosecution witnesses P.W. 10,12 and 14 becomes suspicious and unreliable. On such inadmissible evidence the impugned judgment of conviction and order of sentence, cannot be sustained.

On the other hand, learned Additional P.P. submitted that P.W. 10 and 12 have deposed in the court that they have identified appellant Bijay Singh even otherwise. Under the said circumstance, the identification of Bijay Singh who is known to the prosecution witnesses from before the occurrence, is sufficient for his conviction. The I.O. and other witnesses have categorically stated that in front of the house of Ram Prasad Mandal (father of Ashok and Kishore Mandal) an electric bulb was burning. It has also come in the evidence that the house of appellant Ashok Mandal and Kishore Mandal situate in front of the house of deceased. Thus, the aforesaid two appellants are well known to P.W. 10, 12 and 14, and they can easily be identified even in dim light. It is further submitted that only because P.W. 10 stated that P.W. 12 and wife of deceased came after hearing the sound of firing and explosions, it cannot be said that P.W. 12 had not seen the occurrence. P.W. 10 is an illiterate lady and the aforesaid statement was given by her in cross examination. This said statement must have come in the stress of cross examination. The statement of P.W.10, 12 and 14 with regard to the manner of occurrence is fully corroborated by the doctor who held post mortem examination on the dead body. In view of the above, there is no illegality and/or irregularity in the impugned judgment of the court below.

Having heard the submissions, we have gone through the record of the case and carefully scrutinized the evidence available on record. As noticed above, in the instant case prosecution had examined altogether 20 witnesses. P.W. 1 is Bhairaw Nath Ram P.W. 2 is Mukta Devi, P.W. 3 is Kapil Rai, P.W. 5 Chhotu Rai is witness to inquest. P.W. 6 Sudarsan Sharma is hearsay witness. P.W. 4 Ajit Sah, P.W. 7 Raju Chalak have been tendered for cross, examination. P.W. 8 Gopal Pd. Singh is a seizure list witness, P.W. 9 Nitai Dutta has been declared hostile. P.W. 10 Chintamani Mandalain is the mother of deceased and eye witness to the occurrence, P.W. 11 Karuna Devi is sister-in-law of the deceased. P.W. 12 Bagal Chandra Mandal is the informant and an eye witness to the occurrence. P.W. 13 Subodh Kumar Mandal, the brother of deceased, is a hearsay witness. P.W, 14 Pankaj Kumar Mandal @ Pappu is the son of the deceased and an eye witness to the occurrence, P.W. 15 Basanti Devi is the wife of the deceased, P.W. 16 Dr. Rama Nand Sah is the doctor who had examined the injuries of Pankaj Mandal and proved injury report (Ext.3), P.W. 17 Dr. Atul Kumar Mallick is the doctor who held autopsy on the dead body of deceased Kalicharan Mandal, P.W. 18 Yugal Kishore Mandal is another brother of deceased, P.W. 19 Shailendra Kumar Jha is the main Investigating Officer, P.W. 20 Mukti Nath Mishra is a police officer posted at Dumka (Town) Police Station who seized blood stained earth and two pellets from the place of occurrence on the direction of P.W. 19. The prosecution had also proved and exhibited signatures of the witnesses on Inquest Report, Fardbeyan, Seizure list which were marked as Ext. 1 series. Injury report of Pankaj Mandal has been proved and exhibited as Ext- 3 &3/1. Post Mortem Report is Ext.4, Fard Beyan has been proved and marked as Ext.5, Seizure list proved and exhibited as Ext.6 and the Inquest report is Ext.7 The certified copy of register kept in the office of S.P. Dumka regarding non FIR No. 22 of 63 is Ext.8, the certified copy of order dated 14.3.1989 passed by Sri R.K. Bhagat, Executive Magistrate, Dumka in T.R. Case No. 202 of 88 is Ext. 9.

On behalf of the defence one witness, namely, Braj Kishore Singh has been examined ito prove the signature on the complaint petition marked as Ext. A and A/1 Besides that the defence had also brought on record and exhibited the following documents:- Certified copy of order dated 21.1.1998 passed by Sri Deepak Kumar, J.M. 1st Class, Dumka in P.C.R. Case No. 13 /95 as Ext.B, certified copy of order dated 9.1.95 by CJ.M. Dumka, in Dumka (T) P.S. Case No. 169/94 as Ext. C, Certified copy of order dated 10.1.95 passed by the C.J.M. Dumka in Dumka (T) P.S. Case No. 160/94 as Ext. D, certified copy of order dated 28.5.92 in C.R. 591/91 as Ext. E, certified copy of Judgment passed by Sri L. Ram, S.D.J.M., Dumka on 21.8.06 in T.R. Case No. 648 /96 as Ext.F, certified copy of deposition of Ram Charitra Singh in G.R. Case No. 240/95 as Ext.G, certified copy of Judgment of G.R. Case No. 24/95 passed by Sri L Ram, S.D.J.M. Dumka on 6.6.96 as Ext.H, Certified copy of Judgment of G.R. Case No. 944/92 passed by Sri Kiran Shankar, J.M.ist Class, Dumka on 19.8.96 as Ext.l, certified copy of judgment of G.R. Case No. 884/92 passed by Sri Kiran Shankar on 19.8.96 as Ext.J, Certified copy of judgment of G.R. Case No. 918/92 by Sri Kiran Shankar, J.M. 1st Class, Dumka on 20.8.96, as Ext.K, certified copy of judgment of G.R. Case No. 1084/94 passed by Sri Binod Pd. Singh, J.M. 1st Class, Dumka dated 6.8.98 as Ext.L, certified copy of Voter list of Dumka Assembly Constituency 166 of Serial No. 161 to 165 as Ext.M and certified copy of judgment of G.R. Case No. 259/88 by Sri L. Ram, S.D.J.M., Dumka dated 6.12.93 as Ext N.

P.W. 17 Dr. Atul Kumar Mallick is the Medical Officer who conducted post mortem examination on the dead body of Kali Charan Mandal. P.W. 17 stated that on 19th July 1995 at 12.30 p.m. when he was posted as Medical Officer at Jawahar Lal Nehru Medical College and Hospital, Bhagalpur, he held post mortem examination on the dead body of Kali Charan Mandal and found following antemortem injuries:

(i) One abrasion 1/2" � 1/4" over posterial part of inner aspect of left elbow.

(ii) One wound of entry with inverted margin 1" � � leading to left chest cavity was present in left axillary in mid axillary line at the level of 6"'' rib. The bullet after causing fracture of left 6th rib entered left chest cavity, pierced left lung and its pleura, right lung and its pleura and after causing fracture of 4th rib came out in right axilla near anterior axillary fold. This wound of exit had everted margin and measured 1/4" � 1/4". Both chest cavities were filled with blood and blood clot. Both lungs were pale chambers in both sides of heart were empty.

(iii) One wound of entry with inverted margin 3/4" � 1/2" leading to left chest cavity and abdominal cavity was present On lower part of left side of chest in axilla near posterior axillary fold at the level of 10 rib. The pillet after causing fracture of 6th and 10th rib pierced diapharagm on left side, left lob of liver, loops of intestine and came out through a wound of exit with everted margina 1/3" � 1/4" on lower and outer parts of right side of abdomen in the right. I.A. Kesha. The abdominal cavity was filled with blood and blood clots. All abdominal solid viscera were pale. The stomach contained almost completely digested pasty food and its mucus was pale.

P.W. 17 found that all the above injuries were ante-mortem. Injury No. 1 was simple and was caused by hard and blunt substance Injury No. 2 and 3 were grievous and dangerous to life in ordinary course of nature and caused by fire arm. In his opinion the cause of death was haemorrhage and shock. According to him, time elapsed since death was 36 to 48 hours from the time of the post mortem examination. He proved the [tost mortem examination report as Ext.4. Thus, from the evidence of P.W. 17 it is well proved that Kali Charan Mandal died of fire arm injury.

P.W. 1 stated that at the time of occurrence he was present in his house and he heard the sound of two explosions at the interval of 10 to 15 seconds. He further states that after sometime when he came out of his house he saw the crowd assembled there. He also went there and found Kalicharan Mandal lying on the ground in injured condition. He further stated that at the place of occurrence none had disclosed the name of person who had made explosion. P.W. 2 Mukta Devi had also stated that at the time of occurrence she was present in her house and she also heard the sound of explosion thereafter she closed her door. However she opened the door after the people gathered but she did not come out of her house. P.W. 3 Kapil Rai had stated that at the time of occurrence he had gone for easing and there he heard the sound of explosion. He did not state anything more about the occurrence. P.W.I has been tendered for cross examination and during cross examination he stated that his house situates at a distance of 300 yards from the house of informant. P.W. 5 Chhotu Rai had stated that the inquest report of deceased Kali Charan Mandal was prepared in his presence. He further stated that he and Yugal Kishore Mandal put their signatures on the said inquest report. P.W. 6 Sudarsan Sharma had deposed that at the time of occurrence he was in his shop. He heard the sound of explosion and closed his shop. He further deposed that after sometime he came out of his shop and went to hospital. There he saw dead body of Kali Charan Mandal. He proved his signature on the fardbeyan. P.W. 7 Raju Chalak has been tendered for cross examination. P.W. 8 Gopal Prasad Singh had stated that in his presence blood stained earth was seized. He proved his signature on the seizure list. P.W. 9 Nitai Dutta, also a seizure list witness, had proved his signature on the said seizure, but he was declared hostile and his attention was drawn to his previous statement made before the police. Thus from the perusal of evidence of P.W. 1 to 9, we find that their evidence is not very much relevant for proving the charges leveled against the appellants.

P.W. 10 Chintamani Mandalain is the mother of deceased. She stated that at the time of occurrence she was sitting in front of her house. At that time Bijay Singh, Ashok Mandal and Kishore Mandal had come. Bijay Singh had covered his face with beard mask. Bijay Singh wanted to see Mistri (Kalicharan), Kalicharan and his son Pankaj came out of the house, Bijay Singh asked Kalicharan to do shuttering work. When Kalicharan replied that he was unable to do the work for next 15 days, Bijay Singh and Ashok Mandal took out pistols and fired at Kalicharan. On receiving injury Kalicharan fell on the ground. Kishore Mandal then hurled a bomb. The splinter of said bomb caused injury to Pankaj. The accused persons thereafter fled away. Kalicharan was taken to Hospital where he died. She further admits that, there was enmity and litigations between her family members and the accused persons, which led to the said occurrence. In her cross examination she stated that she saw the occurrence in the light of street bulb. She further stated that she did not remember about her statement before the I.O. that she identified Bijay Singh by his voice. However, P.W. 19 (I.O.) stated that this witness had stated before him that she identified appellant Bijay Singh by voice. This witness also stated that after hearing the sound of firing and explosion her husband and daughter-in-law had come out of the house.

P.W 11 Karuna Devi is the sister-in-law of the deceased. She stated that after hearing the sound of firing she came out of the house. She then deposed that her father-in-law and mother-in-law disclosed that Ashok Mandal and Bijay Singh had fired from their pistols, whereas accused Kishore Mandal had exploded bomb. She saw injured Kalicharan lying on the ground She further states that Pankaj Mandal had also received injury on his hand.

P.W. 12 Bagal Chandra Mandal is the informant of this case and claimed himself to be the eye witnesses of the occurrence. He deposed that at the time of occurrence he was out side his house. Bijay Singh, Ashok Mandal and Kishore Mandal came there and asked about Kalicharan Mandal. On being called Kalicharan came out. Thereafter Bijay Singh asked him to do shuttering work in his building, when Kalicharan showed his inability to do the work for next 15 to 20 days, as wooden planks were engaged somewhere else then there was exchange of hot words and altercation. In the meantime Bijay Singh and Ashok Mandal took out their revolvers and fired at Kalicharan. On receiving injury, Kalicharan fell on the ground. He further stated that Ram Prasad Mandal put off the electric light and the aforesaid accused persons fled away. However at the time of fleeing they exploded a bomb, which caused injury to Pankaj. Kalicharan was then taken to hospital, where he died. He stated that his fardbeyan was recorded in the Hospital. During the cross examination, he admits that he had identified Bijay Singh by voice.

P.W. 13 Subodh Kumar Mandal is the brother of deceased. He stated that at the time of occurrence he was not present in his house. However after receiving information he went to hospital and saw the dead body of his brother. He further stated that his father disclosed that Ram Prasad, his two sons and Bijay had come to his house and shol dead his brother.

P.W. 14 Pankaj Kumar Mandal @ Pappu is the son of deceased. He is also an eye witness to the occurrence. This witness stated that on being called he along with his father came out of the house. He saw Kishore Mandal, Ashok Mandal and Bijay Singh firng at his father and fleeing away. He further deposed that at the time of fleeing, the accused persons exploded a bomb. He also received injury by the splinter of said bomb. In his cross examination, attention was drawn on his previous statement that he had not taken the name of appellant Bijay Singh before the Investigating Officer. To which he replied that he has taken his name before the I.O. However, from the perusal of evidence of P.W. 19, we find that the I.O. had categorically stated that this witness had not taken the name of Bijay Singh before him.

P.W. 15 Basanti Devi is the wife of deceased. She stated that at the time of occurrence her father-in-law was out side the house. On being called, her husband and son Pankaj went out of the house. After 1-2 minutes she heard the sound of firing. Whereupon she came out and saw that her husband was injured and lying on the ground and her son also received injury on his left hand. She further states that she saw that Kishore Mandal and Ashok Mandal and one person having small beard were fleeing away. In her cross examination, she stated that her mother-in-law had called her husband. At paragraph no 8 she admits that she had not taken the name of Bijay Singh before the police nor she: had identified him in the T.I. parade.

P.W. 16 Dr. Rama Nand Sah examined the injuries of Pankaj Mandal on 17.7.95 at 9 p.m. and found lacerated wound 1/4" � 1/8 � "1/8" on the left arm. According to him the said injury was caused by hard and blunt substance. He stated that the said injury may be possible by hard particles. He has proved the injury reports. (Ext. 3 & 3/1).

P.W. 18 Jugal Kishore Mandal is also one of the brothers, of the deceased. He is hear-say witness on the point of occurrence. He stated that after receiving the information he went to the hospital. He further said that in his presence the inquest report was prepared and had put his signature as a witness. He proved his signature on the inquest report.

P.W. 19 Shailendra Kumar Jha is the Investigating Officer. He deposed that on 17.7.1995 he received information regarding the occurrence and after making entry in the station diary he along with other police officials went to the place of occurrence where he came to know that the deceased Kalicharan Mandal was taken to hospital. Where upon he went to Dumka Hospital. There he recorded the fardbeyan of P.W. 12. He has proved the fardbeyan, marked as (Ext. 5). He then stated that on the basis of said fardbeyan the FIR was drawn and investigation was taken up. He had then inspected the place of occurrence. On his instruction P.W. 20 seized blood stained earth and pellets and prepared seizure list. He produced and proved the blood stained earth and pellet as material Ext-1. He also prepared inquest report (Ext.-8). After completing the investigation, he submitted charge sheet. In his cross examination, he stated that though on the electric pole at Tinmohani, electric bulb fused, a bulb was burning in front of the house of the accused. He has further stated that P.W. 10 Chintamani Mandalain stated before him that she had identified the accused, who had covered his face with beard mask by his voice. He stated that Pankaj Kumar had not taken the name of Bijay Singh.

P.W. 20 Mukti Nath Mishra is another Police Officer who had seized blood stained earth and two pellets from the place of occurrence. He has prepared seizure list in presence of witnesses. He has also proved the blood stained earth and pellets, material Ext-1.

D.W. 1 Braj Kishore Singh is an advocate clerk who formally proved signature of Bijay Singh on the complaint petition which has been marked as Ext. A to A/1 However, during the cross examination, he deposed that he did not know the contents and facts of the said complaint case.

Thus, from the evidence of P.W. 10, 12 and 14, it is clear that appellant Ashok Madal, Kishore Mandal and one person Who covered his face with beard mask had come to the place of occurrence and called deceased Kali Charan Mandal. It is also evident from the evidence of aforesaid three witnesses that Ashok Mandal and another person who covered his face with beard mask had fired at Kali Charan Mandal due to that he received injury and fell on door-step. The doctor P.W.-17 had also found two wounds of entry near the left chest and two wounds of exit. P.W. 20 had seized two pellets from the place of occurrence and same was produced in court Thus, the statement of P.W. 10, 12 and 14 find full support from the evidence of the doctor and I.O. The aforesaid three witnesses had stated that at the time of retreat, appellant Kishore Mandal had hurled bomb and injury was caused to P.W. 14 by the splinters. The aforesaid statements of P.W. 10, 12 and 14 were not specifically disputed by the defence. P.W. 16 was the doctor of Sadar Hospital, Dumka. He examined the injury of P.W. 14 on the same day at 9 p.m. and proved his injury report which also shows that P.W. 14 received injury. He further stated that the said injury is possible by a hard particles. Under the said circumstance, the manner of occurrence as stated by the aforesaid three witnesses find full support from the doctors P.W. 16 and 17 as also from the physical finding of two Investigating Officers P.W.s. 19 and 20. Moreover the other witnesses P.W. 1, 2, 3, 6, 8, 13 and 15 also stated that they also heard the sound of explosion. P.W. 1 further staled that after sometime when he went to the place of occurrence he found the deceased lying on the ground in injured condition. Thus, this witness also corroborates the statement of aforesaid eye witness.

The submission of learned Counsel for the appellants that in view of statement of P.W. 10, at paragraph No. 23 it cannot be said that P.W. 12 is the eye witness, cannot be accepted. It has to be kept in mind that P.W. 10 is an illiterate lady. The Supreme Court in Krishna Mochi v. State of Bihar ruled that "a witness may not stand to the; test of cross examination, which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times, under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore minor discrepancies have to be ignored." (emphasis added) (reported in 2002(2) ECC 156

The aforesaid statement at paragraph No. 23 appears to be snatched from P.W. 10 under the stress of cross-examination, taking the advantage of her illiteracy, though she might not have even understood the question. Moreover the presence of P.W. 12 at the place of occurrence at the time of occurrence is also corroborated from the deposition of P.Ws. 11, 14 and P.W. 15 who had categorically stated that at the time of occurrence P.W. 12 was in front of his house. Thus, only because of soma stray statement of P.W. 10 at paragraph No. 23, testimony of P.W. 12 who is an eye witness of the occurrence, can not be discarded.

It is next submitted by the learned Counsel for the appellants that the doctor who conducted autopsy on the dead body has specifically mentioned that the body was on advance stage of decomposition. That goes to suggest that the occurrence must have been taken place 3 to 4 days prior to the date of post mortem examination. The time of occurrence as well as manner of occurrence as stated by the prosecution witnesses cannot be accepted.

In our considered view, the aforesaid submission has no substance. In the postmortem report it is stated that in the dead body rigour motis was absent. Decomposition is in advance stage with formation of plebs, pilling out of skin at places and profusion of eye and tongue. The doctor opined that the time of death elapsed was within 36 to 48 hours from the time of post mortem examination. It is relevant to mention that the post mortem took place on 19.7.1995 at 12.30 Noon and the occurrence had taken place on 17.7.1995 at 7.30 to 8.30 p.m. and from the time of occurrence, the post mortem was conducted within 48 hours. It is worth mentioning that while cross examining the doctor, no question was put to him as to when the decomposition commences in the dead body. As per the Modi''s Medical Jurusprudence and Toxicology, 23rd Edition, during the hot months from April to October in Northern India, decomposition /putrefaction commences before the rigour mortis completely pass off from the lower extremities. Further that 18 to 36 or 48 hours after the death, gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted, the eyes are forced out of their sockets, the tongue protruded between the teeth, and the lips become swollen and everted. These gases form blisters under the skin containing a reddis coloured fluid, on the various parts of the body. When these buret, the cuticle being softened peels of easily. Thus as per Modi''s Medical Jurisprudence the aforesaid symptoms appears in a dead body between 18 to 48 hours from the time of death. In the instant case, doctor also found the same symptoms and on that basis, he concluded that the death took place within 36 to 48 hours from the time of post mortem. Thus there is no inconsistency in the medical evidence and the evidence of eye witnesses with regard to time of occurrence.

It is submitted by learned Counsel for the appellants that the I.O. and P.W. 12 had stated that the electric bulb fitted on the electric pole was fused from last one month and there was no source of light. Accordingly, the claim of P.Ws. 10, 12 and 14 that they identified Ashok Mandal and Kishore Mandal, after seeing their faces, is not acceptable. In this connection, it is relevant to mention that in the fardbeyan it has come that just after the occurrence the accused Ram Prasad Mandal had put off the pole light and there was darkness on the road. In the fardbeyan it is mentioned that there was a electric light in front of the house of accused Ram Prasad Mandal. This fact was also supported by P.W. 12 in his deposition at paragraph 2. The I.O. in Paragraph No. 15 had categorically stated that an electric bulb was on the pole in front of the house of accused persons, it has come in the evidence that the house of Ram Prasad Mandal i.e. the father of appellants Ashok Mandal and Kishore Mandal situates; in front of the house of informant. Since the aforesaid two appellants are next door neighbour of informant, they can easily be identified by the informant and his family members. Moreover P.W. 14 has stated that at the time of occurrence a lantern was burning near the door, where occurrence took place. Thus, in our view, there is sufficient source of light for identifying appellant Kishore Mandal and Ashok Mandal, who are next door neighbour of the informant.

So far as the identification of Bijay Singh by voice as claimed by the prosecution is concerned, it has been submitted that P.W. 10 and 12 stated that they had no family relation with the appellant Bijay Singh. The two families are not even in visiting term. Bijay Singh is resident of different Mohalla. He never came to the house of informant prior to the occurrence. It is further submitted that in his fard beyan as well as at paragraph No. 27 P.W. 12 has categorically stated that he had identified Bijay Singh by his voice. P.W. 10 though stated in her deposition that she did not remember what she had said before the police about identifying Bijay Singh by his voice, but the I.O. in his deposition has categorically stated that witness Chintamani Mandalain had stated before him that she identified the accused who covered his face with beard-mask by his voice. It is further submitted that P.W. 14 had not taken the name of Bijay Singh before the police and for the first time he has implicated him in court. Since the witnesses are not acquainted and familiar with voice of Bijay Singh, it is risky to convict him on the basis of his identification by voice.

We have carefully scrutinized the evidence of P.W. 10, 12 and 14 regarding identification of Bijay Singh. P.W. 10 in the examination in chief has stated that at the time of occurrence one of the accused had covered his face with beard- mask. However, she identified Bijay Singh. In the cross examination when she was confronted with her earlier statement, she stated that she did not remember whether she had said so before the police, or not. However, the I.O. P.W. 19 had stated that she made statement before him that she identified Bijay Singh by his voice. P.W. 12 in his fard beyan as well as in the deposition at paragraph No. 27 stated that he had said before the police that he identified Bijay Singh by his voice. Thus, it is evident that the Bijay Singh was identified by P.Ws. 10 and 14 by his voice. The Supreme Court in Kirpal Singh Vs. State of Uttar Pradesh, held that if the accused is intimately known to the witness from before the occurrence, it is possible for the witnesses to identify him by his voice, but when the person recognizing is not familiar with the person recognized then such identification is risky in a criminal trial. In the instant case, P.Ws. 10 and 12 in their deposition have said that Bijay Singh does not belong to their caste. He is also not related with them. The house of Bijay Singh situates in another Mohalla Rasikpur. It is also admitted by these witnesses that the two families are not on visiting term. P.W. 10 also specifically stated at paragraph no 24 that prior to occurrence, Bijay Singh never came to her house. P.W. 12 also categorically stated that he had no acquaintance with Bijay Singh. Thus, in view of the aforesaid deposition, it is clear that P.W. 10 and 12 are not familiar with the voice of Bijay Singh and their claim that they identified Bijay Singh by his voice, does not inspire confidence. So far as the identification of this appellant by P.W, 14 is concerned, it is worth mentioning that he claims that he had said before the police hat the third man who came; with Ashok Mandal and Kishore Mandal was Bijay Singh. However, that has been contradicted by the P.W. 19 who categorically stated that P.W. 14 had not taken the name of Bijay Singh before him.

Under the said circumstance the identification of Bijay Singh by P.W. 14 for the first time in court is not reliable. We find substance in the submission of learned Counsel for the appellant Bijay Singh that his conviction only on the basis of identification by voice cannot be sustained.

In view of the aforesaid discussion, we conclude that so far as the appellants Ashok Mandal and Kishore Mandal are concerned, the prosecution has been able to prove the charges leveled against them beyond the shadow of all reasonable doubts and there is no error in the impugned judgment of their conviction. However, conviction of appellant Bijay Singh only on the basis of identification by his voice is not sustainable.

In the result

We allow Cr. Appeal (DB) No. 275 of 2004 and set aside the conviction and sentence of Bijay Singh passed in S.C. No. 168 of 1996 by the Sessions Judge, Dumka. We acquit him of the charges. We are informed that he is in custody; he is directed to be set at liberty forthwith, if not wanted in any other case.

We uphold the conviction and sentence of the appellants Kishore Mandal and Ashok Mandal passed in the said S.C. No. 168 of 1996 and dismiss Cr. Appeal (DB) No. 80 of 2004 and Cr. Appeal (DB) No. 292 of 2004.