Praful Kumar Mandal vs State Of Jharkhand

Shree Chandrashekhar, J

The sole accused has faced the trial on the charge under section 323 and section 302 of the Indian Penal Code and under section 27 of the Arms

Act.

In S.C. No. - 028 of 2009/T.R. No.161 of 2010, the appellant has been convicted and sentenced to R.I for life and fine of Rs.5,000/- under Section

302 of the Indian Penal Code, R.I for 6 months under Section 323 of the Indian Penal Code and R.I for 3 years under Section 27 of the Arms Act.

The informant of this case is wife of Shiv Kumar Yadav, the deceased. On the basis of her fardbeyan which was recorded on 15.08.2008 at about

16:10 hours, Pathargama P.S. Case No.144 of 2008 has been lodged against the appellant.

During the trial, the prosecution has examined altogether 11 witnesses; the informant Katki Devi is P.W.5.

The prosecution has projected Ram Dular Yadav-P.W.1, Kartik Yadav-P.W. 3 and Mantu Rai-P.W.4 as eye-witnesses. Din Dayal Yadav-P.W.8

has also claimed himself as an eye-witness.

The prosecution witness, namely, Bhavura Rai @ Bhadura Rai â€"P.W-2 is a seizure witness and Chinta Yadav-P.W.9 has been declared hostile.

The informant is not an eye-witness to the occurrence. In her fardbeyan, she has stated that in the morning of 15.08.2008 her husband had gone to

Lalmatiya Mines for getting coal and she after feeding her children had gone to the field for grazing cattle. At about 3:45 p.m, she got an information

that her husband has been shot dead by Praful Kumar Mandal near Manjhithan of Chika Santhali Tola. She had gone there and found the dead body

of her husband lying there, blood was oozing from his right shoulder and Mantu Rai, Kartik Yadav and Ram Dular Yadav were present there. They

informed her that when they were returning home they sat near the house of Gopal Mandal where Praful Kumar Mandal and Ram Dular Yadav had

drinks together. Thereafter, they left the place and after sometime a quarrel took place between Praful Kumar Mandal and Kartik Yadav regarding

money and when Shiv Kumar Yadav, her husband, tried to intervene Praful Kumar Mandal fired at him. In the court, she has reiterated a similar story

and in her cross-examination she has admitted that her evidence is based on hearsay.

The prosecution witness, namely, Ram Dular Yadav-P.W.1 is an eye-witness. He has stated that Praful Kumar Mandal asked him for drinks,

however, he declined saying that he does not have enough money. At that time, Kartik Yadav also came in the market (bazzar) and Praful Kumar

Mandal started fighting with Kartik Yadav. He further says that Shiv Kumar Yadav and Mantu Rai came there and then Praful Kumar Mandal

started quarrelling with Shiv Kumar Yadav. He whipped out a country-made pistol and shot at Shiv Kumar Yadav. P.W.3 has said that Praful Kumar

Mandal was sitting in the house of Gopal Mandal. He called him and Ram Dular Yadav and asked him for drinks and when they declined Praful

Kumar Mandal bought drinks and they had drinks together. He has further stated that the quarrel started between them and they came out from the

house of Gopal Mandal. In the meantime, Shiv Kumar Yadav and Mantu Rai also came there and when they reached near Manjhithan of Chika

Santhali Tola, Praful Kumar Mandal asked for money and then a quarrel took place. P.W.3 says that Praful Kumar Mandal started assaulting him and

when Shiv Kumar Yadav tried to intervene Praful Kumar Mandal whipped out pistol and shot at Shiv Kumar Yadav. The prosecution witness,

namely, Mantu Rai-P.W.4 has also narrated a similar story about the occurrence, however, he has also stated that he and Shiv Kumar Yadav had

drinks together at the place of Gopal Mandal.

Dr. Dilip Kumar Choudhary P.W.7, who has conducted the post-mortem examination at about 8:30 a.m on 16.08.2008, has found the following

injuries on Shiv Kumar Yadav:

“Ante-mortem Injuries

(i) One entry an oval wound on the back of the chest in the line of the spine of scapula 1†lateral to the spinal column. The margin of the wound was

blackened and inverted and the size 1â€​ x 3/4â€​.

(ii) One exit wound in the region of supera clavicular by the right side of neck and of the size 2 ½†x 2â€. Dissection of the wound revealed

fracture of the 1st rib of the right side and laceration of the upper pole of the right lung.

(iii) Lacerated wound in the left eye brow of the size 1â€​ x ½â€​ x ¼â€​.

(iv) A bruise on the left side of face of size 1 ½ â€​ x 1 ½ â€​

Cause of Injury:

Injury nos.(i) (ii), were wound entry and exit produced by fire arm bullet and injury no.(iii) & (iv) were produced by hard and blunt substance.â€​

Dissection of the skull revealed pale brain matter. Dissection of chest revealed rupture of pleura in the right side. Serosanguinous fluid in the

respiratory passage and larynx.

Left lung found pale and right lung lacerated at upper pale and blood was found in right pleural cavity.

All the chambers of heart were empty.

Dissection of abdomen revealed partly digested rice and pulse in the stomach. Faecal gas matter in the small and large intestine.

Vicera was pale and urinary bladder contained 50ml. urine.â€​

According to the doctor, injury nos. (i) and (ii) were caused by fire arm whereas injury nos.(iii) and (iv) were caused by hard and blunt substance.

The cause of death was shock and haemorrhage due to fire arm injury and time since death from the post-mortem was 24:00 hours.

Mr. Nilesh Kumar , the learned counsel for the appellant contends that: (i) The medical evidence does not corroborate the prosecution story that

the appellant has fired a shot on the neck of Shiv Kumar Yadav from point blank range, (ii) The doctor has not found alcohol in stomach of the

deceased though at least P.W.4 has stated that he had taken drinks together with Shiv Kumar Yadav, (iii) The occurrence has taken place in harijan

basti which consists of 10 to 12 houses, however, no one from the vicinity has seen the occurrence and (iv) The prosecution witness - P.W.3 has

stated that there was no enmity between Praful Kumar Mandal and Shiv Kumar Yadav and thus the prosecution has failed to establish motive.

On the above grounds, the learned counsel for the appellant submits that the so-called eye-witnesses have not seen the occurrence and they are

the planted witnesses.

Dr. Dilip Kumar Choudhary-P.W.7 has found one entry of oval wound on the back of the chest of Shiv Kumar Yadav and exit wound near his

right neck.

Under Section 45 of the Evidence Act, medical evidence is just an opinion of the doctor. The opinion of the doctor may become a determinative

factor in the cases where it is found that in view of the medical evidence the incident could not have taken place, but on minor variation in the medical

evidence or inconsistency between the medical evidence and ocular evidence would not throw a doubt on the prosecution case if the ocular evidence

is consistent. In “Thaman Kumar Vs. State (UT of Chandigarh)â€​ reported in (2003) 6 SCC 380, the Supreme Court has observed as under:

“16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there

is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found

on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with

the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused

by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the

eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence

enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a

particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner

and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the

occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the

reliability of ocular testimony.â€​

In their cross-examination, P.W. 1, P.W. 3 and P.W. 4 have stood to their ground. During their cross-examination, the prosecution has not been

able to elicit such fact which would completely belie the prosecution case. All that the defence has elicited from them is that P.W.3 was an accused in

a rape case, there were several houses around the place of occurrence and there was no enmity between the appellant and the deceased. But, on

such facts, eye-witness account of P.W.1, P.W.3 and P.W.4, would not become unreliable and not trustworthy.

By now, it is well-settled that in every case there would be some inconsistencies, embellishments and exaggeration and, therefore, on minor

inconsistencies, exaggerations or embellishments in the testimony of the witness the prosecution case cannot be thrown to the winds. It is only those

inconsistencies, exaggerations or embellishments which go to the root of a case can create doubt on the prosecution evidence. In “A. Shankar Vs.

State of Karnatakaâ€​ (2011) 6 SCC 279, the Hon'ble Supreme Court has held as under:

“22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,

namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the

omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material

improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies,

embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on

which the evidence can be rejected in its entirety.â€​

P.W.3 is an injured witness. He was examined by Dr. Ram Bachan Chaudhary on 16.08.2008. The doctor has found the following injuries on his

person:

(i) Lacerated wound of left eyebrow of size ½â€​x ½â€​.

(ii) Abrasion on right wrist joint.

Of course, the doctor has stated in his cross-examination that the injuries found on Kartik Yadav are possible from a fall on the ground, the

spontaneity in the medical examination of P.W.3 and the post-mortem examination of Shiv Kumar Yadav which were held about 12:00 hours of

registration of the First Information Report would lend credence to the testimony of P.W.3.

P.W.8 has also claimed himself an eye-witness. His testimony is sought to be challenged on the ground that he is President of a school and the

school hours is between 10:00 a.m to 4:00 p.m whereas the incident has happened at about 3:30 p.m. In his evidence this witness has stated that

generally he stays in the school during the school hours but on the day of incident at about 3:30 p.m he was coming from his house by cycle and when

he reached near village-Chilkara he has seen the incident. He is a signatory to the inquest report which was prepared at 4:30 p.m on the same day.

The defence sought to be raised by the appellant that the deceased was also drunk is not supported by the medical evidence. The doctor has not

found any trace of alcohol in his stomach. The deceased had taken drinks with other prosecution witnesses is not spoken of by all the witnesses. Only

P.W. 4 has stated that he had drinks together with the deceased, but then, narration of the events as disclosed by the prosecution witnesses would

reveal that at the time when the other prosecution witnesses had drinks together the deceased was not in picture. He has joined them only after they

had left the house of Gopal Mandal where they had enjoyed drinks together. Therefore, a stray statement by P.W.4 in his evidence that he had taken

drinks with Shiv Kumar Yadav which, in fact, does not fit in the sequence of events has to be ignored. On firing direction, we observe that since the

witnesses had taken drinks, there may be some inconsistency in so far as direction of firing on Shiv Kumar Yadav is concerned. They are the eye-

witness and their testimony cannot be rejected plainly because their presence at the time of occurrence is established. Therefore, in view of the

medical evidence that Shiv Kumar Yadav has suffered fire-arm injury on his back, the prosecution case that the appellant has fired shot at Shiv

Kumar Yadav would not become doubtful. We further find that in view of the cogent and consistent evidence of the prosecution witnesses-P.W.1,

P.W.3, P.W.4 and P.W.8 - minor lapses during the investigation are not so vital as to render the judgment of conviction unsustainable.

The above being the factual scenario, we find no reason to interfere in this matter and, accordingly, Criminal Appeal (D.B.) No.747 of 2010 is

dismissed.

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.