Pankaj Mandal And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

These three criminal appeals; Cr. Appeal (DB) No. 778 of 2013 by Pankaj Mandal, Cr. Appeal (DB) No. 316 of 2017 by Sudhir Mandal and Cr.

Appeal (DB) No. 638 of 2011 by Anant Mandal and Ishwar Mandal, have been filed by the appellants challenging the judgment of conviction dated

02.12.2011 and the order of sentence of RI for life and fine of Rs. 5000/- each under section 302/34 IPC dated 05.12.2011 passed against them by the

learned 1st Additional District & Sessions Judge, Godda in Sessions Case No. 211 of 2008/ S.T. No. 15 of 2011.

The informant of this case, namely, Manohar Prasad Mandal is father of the deceased, namely, Santosh Kumar Mandal. On the basis of his

fardbeyan, Poraiyahat P.S. Case No. 116 of 2008 was registered on 30.06.2008 under section 302/34 IPC.

During the trial, the prosecution has examined 14 witnesses and the accused persons have laid evidence in their defence through Farukh Ansari

DW-1. The informant has been examined as PW-13, his son Mithlesh Kumar Mandal is PW-1, his wife Punam Devi is PW-6 and his daughter-in-law

Bineeta Devi is PW-7.

PW-8, PW-10 and PW-11 are the hear-say witnesses. They have reached the place of occurrence on hearing hulla and PW-14 has been tendered

by the prosecution for cross-examination.

The prosecution has projected PW-1, PW-6, PW-7 and PW-13 as eye-witnesses.

In his fardbeyan, the informant has stated that in the night of 29.06.2008, at about 10:00 p.m., after taking dinner he and his family members had

gone to bed. At about 11:00 p.m., on hearing some sound he woke up and in the torch light he has seen Sudhir Mandal and Pankaj Mandal assaulting

his son with katta (a sharp-cutting heavy weapon). At that time, Anant Mandal and Ishwar Mandal were standing there and they were carrying

pistols. They were saying to finish him quickly. On his raising hulla the accused persons fled away. According to the informant, co-villager Gopal

Chandra Ghosh had taken back his land from the accused persons and handed over to him for cultivation due to which they were annoyed.

In the court, the informant has reiterated the incident of 29.06.2008. He has deposed about assault on his son by Sudhir Mandal and Pankaj Mandal

and the other two standing there. He has further stated that when he raised cries, his family members came there. He has asserted that due to land

dispute the accused persons have committed murder of his son. The brother of the deceased, namely, Mithlesh Kumar Mandal PW-1 has stated that

on hearing shouts of his father he came out from his room and saw the appellants coming out from the room of his brother. The mother of the

deceased, namely, Punam Devi PW-6 and the sister-in-law of the deceased, namely, Bineeta Devi PW-7 both have stated that on hearing hulla raised

by the informant they came out and saw the appellants fleeing away.

Through the testimony of PW-1, PW-6, PW-7 and PW-13, the prosecution has sought to prove complicity of the appellants in murder of Santosh

Kumar Mandal.

While PW-1 has stated that his father told him that Sudhir Mandal and Pankaj Mandal have assaulted his brother, PW-2 has stated that the

informant told him that Anant Mandal and Sudhir Mandal had caused injuries to his son. PW-6 and PW-7 have stated that they have seen the

appellants fleeing away from their house. PW-3 has alleged that all the accused persons have assaulted Santosh Kumar Mandal whereas PW-4 has

stated that the informant told him that Sudhir Mandal and Anant Mandal have committed murder of his son. On such evidence, it cannot be said with

certainty who amongst the appellants has committed murder of Santosh Kumar Mandal, as there is serious contradiction in testimony of the witnesses

on complicity of the appellants in the crime.

From cross-examination of the prosecution witnesses, we find that the defence has seriously challenged identification of the accused-appellants by

the prosecution witnesses. PW-1 has admitted that there was no electric light in the room or at the varanda. PW-6, PW-8 and PW-10 have stated that

it was a dark night. PW-6 has also stated that there was no electricity at the place of occurrence and PW-10 has stated that he could not see face of

the villagers who had assembled at the place of occurrence. The Investigating Officer has also deposed in the court that there was no electricity in the

house. The informant has claimed that he has seen the appellants committing murder of his son in the torch light. However, he has not handed over

the torch to the Investigating Officer and the Investigating Officer has stated that he did not find a torch nor has he seized any torch from the place of

occurrence.

The identification of the appellants by the informant and other prosecution witnesses has been challenged also on the ground that all the material

witnesses are related witnesses. PW-1, PW-6, PW-7 and PW-13 have claimed themselves as eye-witnesses, but on their own evidence it is doubtful

if they have seen the appellants either at the place of occurrence or fleeing away from the place of occurrence. PW-1 has stated that he was sleeping

with his wife in another room. His wife has stated that when she came out side she has found several villagers assembled there. Whereas, PW-6 says

that PW-7 came in her room to woke her up and thereafter she had gone near the dead body. PW-6 has further stated that she was sleeping with her

younger son Sita Ram, but he has not been examined during the trial.

From the aforesaid discussion, it is apparent that evidence on identification of the appellants is so hazy and full of chaff that it cannot be concluded

that the prosecution witnesses have seen the appellants committing the crime and fleeing away.

In his cross-examination, PW-3 has stated that when he reached the house of the informant he has not seen PW- 2, PW-4 and PW-5 there and

PW-2 says that when he had gone to the place of occurrence he did not find Rajendra Manjhi, who is PW-3, there. Thus, presence of PW-2, PW-3,

PW-4 and PW-5 at the place of occurrence immediately after the occurrence has become doubtful.

The accused-appellants have set up a defence that they had gone to the place of occurrence on hearing hulla of “chor-chor†and there they

have found dead body of Santosh Kumar Mandal.

To fortify their stand, the appellants have examined Farukh Ansari as DW-1. In the court, DW-1 has stated that on hearing shouts of “chor-

chor†he had gone to the place of occurrence and he has seen Arjun Mandal, Anant Mandal, Ram Prasad , Khudi Mandal, Pankaj Mandal, Bajrangi

Manjhi and Basant Manjhi and others present there. They were asking Manohar Mandal how this has happened. He has further stated that on query

by the police Manohar Mandal did not say anything. In his cross-examination, DW-1 has stated that he reached the place of occurrence after about 10

minutes. He has also spoken about land dispute between the parties. PW-5 has also admitted that there was dispute between the informant and the

appellants regarding cultivation of land of Gopal Chandra Ghosh.

Now in the above back drop, it has to be kept in mind that the prosecution witnesses â€" PW-1, PW-6, PW-7 and PW-13â€" are related

witnesses and PW-2, PW-3, PW-4 and PW-5 are interested witnesses; Gopal Chandra Ghosh had taken back his land from them and handed over to

the informant for cultivation. Therefore, as held by the Hon'ble Supreme Court in “Raju V. State of T.N.†reported in (2012) 12 SCC 701, their

testimony has to be examined applying a standard of discerning scrutiny.

Mrs. Priya Shrestha, the learned APP has submitted that merely because a witness is a relative he does not become interested witnesses and,

therefore, his evidence requires due consideration. The learned APP has relied on the judgments in “Sucha Singh V. State of Punjab,†reported in

(2003) 7 SCC 643,†“Chagan Kishan Koli Vs. State of Maharashtra,†reported in 2010 Cr. L.J. ( NOC) 91 ( Bomb) anâd€ œState of A.P. Vs.

Punati Ramalu,â€​ reported in AIR 1993 SC 2644, on the point of interested witnesses.

As noticed above, testimony of the prosecution witnesses is fraught with uncertainty. They are tentative during their cross-examination and they

have contradicted each other on material aspects of the prosecution story. They are not reliable and trustworthy. The uncertainties in the prosecution

evidence;

(i) identification of the appellants is doubtful, (ii) claim of the witnesses that they have seen the appellants fleeing away is doubtful, (iii) discrepancy in

the manner of occurrence as told to PW-3, PW-4 and PW-5, (iv) at the first instance the informant did not tell his family members name of the

appellants, and (v) no over-act by two of the appellants though they were holding pistols in their hand, make us doubt complicity of the appellants in the

crime. On the basis of uncorroborated testimony of the informant, conviction of the appellants appears to be solely based on suspicion, but then,

suspicion howsoever strong cannot take the place of legal evidence [refer- “Sharad Birdhichand Sarda V. State of Maharashtra,†reported in

(1984)4 SCC 116].

In the end, we are of the opinion that the appellants are entitled for the benefits of doubt and, therefore, their conviction under section 302/34 IPC

is set-aside.

The judgment of conviction under section 302/34 of the Indian Penal Code dated 2.12.2011 and the order of sentence of RI for life and fine of Rs.

5000/- each dated 5.12.2011 passed by the learned 1st Additional District & Sessions Judge, Godda in Sessions Case No. 211 of 2008/ S.T. No. 15 of

2011 against the appellants, namely, Pankaj Mandal, Sudhir Mandal, Anant Mandal and Ishwar Mandal are set aside.

The above-named appellants are acquitted of the charge framed against them under section 302/34 of the Indian Penal Code.

The appellants, namely, Pankaj Mandal, Sudhir Mandal, Anant Mandal and Ishwar Mandal, who are in jail, shall be set free forthwith, if not

required in connection to any other case.

In the result, Cr. Appeal (DB) No. 778 of 2013, Cr. Appeal (DB) No. 316 of 2017 and Cr. Appeal (DB) No. 638 of 2011 are allowed.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower court records be transmitted to the court concerned, forthwith.