Sanat Kumar Mandal @ Sanat Mandal and Others vs The State of Bihar

R.N. Prasad and M.L. Visa, JJ.—The Appellants have preferred this appeal against the judgment and order dated 30.7.1986 passed by 1st Addl. Sessions Judge, Dumka in S.T. No. 291/28 of 1984/85, whereby the Appellants have been convicted for the offence u/s 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have further been convicted for the offence u/s 147 of Indian Penal Code but no separate sentence has been awarded. Appellant Rabilal Mandal and Bishwanath Mandal were further convicted for the offence u/s 323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. Appellant Sanat Kumar Mandal has further been convicted for the offence under Sections 342 and 354 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and one year respectively. The sentences were ordered to run concurrently.

The prosecution case, in brief, is that one Nimai Chand Mandal gave his fardbeyan on 17.3.1984 at 9 P.M. that at about 4 P.M. his sister Kalpana Mandal was going to village tank. On way Sanat Kumar Mandal @ Habul Mandal caught her and took to his house and confined her there. The aforesaid information was given by one Aduri Mandal of his village on which he, his father and others went to the house of Sanat Kumar Mandal and asked Sanat Kuinar Mandal to free his sister Kalpana Mandal. They wanted to open the door of the room where his sister was confined with Sanat Kumar Mandal but the Appellants came with lathi and on the order of Sanat Kumar Mandal Appellant Rabilal Mandal assaulted with lathi on his head and, thereafter other Appellants assaulted with lathi. Appellant Sanat Kumar Mandal assaulted him with sharp weapon on his left hand finger causing bleeding injury. Appellant Gudru Tudu and Bhonda Tudu assaulted Ashwani Kumar Mandal with lathi on his head causing bleeding injury. He fell down and became unconscious. Appellant Sanat Kumar Mandal said, thereafter, that old man Ashwani Kumar Mandal was very mischievous and so kill him. Thereafter, all the accused persons assaulted Ashwani Kumar Mandal with lathi. On hearing hue and cry the villagers came at the place of occurrence and they took him and Ashwani Kumar Mandal to Raneshwar State Dispensary for treatment.

On the aforesaid fardbeyan, Ext. 6, formal First Information Report, Ext. 5, was drawn and investigation was taken up. However, Ashwani Kumar Mandal died in the Hospital. On completion of investigation charge-sheet was submitted. The court on receipt of charge-sheet took, cognizance and committed the case for trial. The trial court convicted the Appellants and sentenced them as indicated above.

The defence of the Appellants was that they were innocent and had falsely been implicated in this case out of previous enmity.

The prosecution in support of its case examined 13 witnesses, out of whom P.Ws. 2, 6 and 7 have claimed to be eyewitnesses to the occurrence. P.W. 11 is the informant and has claimed to be eye witness to the occurrence. P.W. 3 is Doctor who held autopsy over the dead body. P.Ws. 4 and 5 are witnesses to the seizure of blood stained earth from the place of occurrence. P.W. 8 has been declared hostile. P.Ws 9 and 10 have been tendered. P.W. 12 is Doctor who examined the injured P.Ws. 2 and 11. P.W. 13 is the Investigating Officer.

P.W. 1 Kalpana Mandal stated in her evidence that Appellant Rabilal Mandal had brought a case of assault against the deceased, the injured, P.W. 11 and herself and the case is still pending. Her mother, P.W. 2 also stated in her evidence about the previous enmity that criminal case was instituted against the accused Rabilal Mandal, Bishwanath Mandal and Madhusudan Mandal and, thereafter, Rabilal Mandal brought false case against them. P.W. 6 Aduri Mandal also admitted enmity with Hare Krishna Mandal who is uncle of Appellant Sanat Kumar Mandal. Learned Counsel, accordingly, pointed out that since the witnesses were inimical their evidence should not be accepted but there is no law that evidence of such witness should be outright rejected but requirement is that evidence of such witness should be scrutinized with care and caution. Keeping in mind the well established principle we proceed to examine the evidence of eye witnesses.

P.W. 2, the widow of the deceased and P.W. 11 son of the deceased are injured witnesses. They sustained injury during the course of occurrence and as such their presence at the place of occurrence can not be doubted. P.W. 2 stated in her evidence that at the relevant time she was at her house. Her husband, the deceased, her son P.W. 11 and two daughters-in-law were in the house. Aduri Mandal, P.W. 6 came and disclosed that she along with Kalpana Mandal, P.W. 1 was going to the tank. On way Sanat Kumar Mandal caught her and confined her in his house. On getting information, she, her husband, the deceased, and her son P.W. 11 along with P.W. 6 went to the house of Sanat Kumar Mandal. There she saw that P.W. 1 was confined in a room. P.W. 1 uttered that they should leave the place otherwise Sanat Kumar Mandal would kill them. She tried to escape from there and went to the court-yard of Hare Krishna Mandal. She also stated that there were five houses and the court-yard of all the houses was one. Gudru, Bhonda, Sanat Kumar Mandal and Madhusudan Mandal assaulted the deceased. Bishwanath Mandal and Rabilal Mandal assaulted P.W. 11 on head and fingers. Due to assault on her husband blood was oozing out. Subsequently, all the accused persons assaulted on his chest with lathi. Her husband became senseless. Rabilal Mandal and Bishwanath Mandal also assaulted her with lathi due to which she fell down. People came on hearing alarm and the accused persons ran away. She, P.W. 11 and her husband, the deceased were taken to Raghunathpur Hospital. From there her husband was forwarded to Siwari Hospital (West Bengal) for better treatment but he died in the midnight. In cross-examination the witness stated that accused persons were family members of Appellant Sanat Kumar Mandal, out of whom two were separate. The witness also gave details of place of occurrence and stated that house of Hare Krishna Mandal is adjacent to the house of Sanat Kumar Mandal. The witness also admitted litigation with the Appellants.

P.W. 11 is son of the deceased and is informant of the case. The witness has stated in his evidence that he was at his house at the relevant time. Aduri Mandal, P.W. 6 came and disclosed that Appellant Sanat Kumar Mandal caught his sister Kalpana Mandal, P.W. 1, and took her to his house. On getting information he, his mother and father along with Aduri Mandal, P.W. 6 went to the house of Sanat Kumar Mandal. He saw that his sister, P.W. 1 had been confined in a room. He asked him to free his sister, but she was not allowed to go out by Sanat Kumar Mandal who had bolted the door of the room from inside. P.W. 1 uttered to leave the place otherwise they would be killed. Thereafter, Rabilal Mandal and Bishwanath Mandal assaulted him with lathi on his head which is also used as. Hurka (instrument for closing the dcor from in side). Appellants Bhonda Tudu and Gudru Tudu assaulted with lathi on the head of his father. His father fell down. Thereafter, Rabilal Mandal, Bishwanath Mandal and Madhusudan Mandal assaulted his father. His father became unconscious. In the meantime Sanat Kumar Mandal came and he also assaulted his father. The witness stated that the Appellants assaulted either with Hurka or lathi. His mother P.W. 2 was assaulted by Rabilal Mandal and Bishwanath Mandal. Thereafter, the Appellants ran away. His father was taken to Raghunathpur Hospital. He and his mother also went to the Hospital but condition of his father was serious and as such he was referred to Siwari Hospital (west Bengal). In the Hospital the police came who recorded his fardbeyan and he signed the same. The witness was cross-examined at length and he stood the test of cross-examination and nothing cogent was elicited to disbelieve his evidence.

P.W. 6 is also an eye witness to the occurrence. She stated in her evidence that she and Kalpana Mandal, P.W. 1 were going to the tank of the village. On the way Appellant Sanat Kumar. Mandal caught Kalpana Mandal, P.W. 1 and took her to his house. She raised hulla and went to the house of Kalpana Mandal and disclosed the incident to her father, mother and brother. She along with P.Ws. 2 and 11 and the deceased came to the house of Sanat Kumar Mandal and found that Kalpana Mandal, P.W. 1 had been confined in a room. They called Kalpana Mandal but she uttered to leave the place as Sanat Kumar Mandal was saying that he would kill her father and mother. They tried to escape but they were not allowed to go out. In the meantime Bhonda Tudu and Gudru Tudu came and assaulted with lathi on the head of Ashwini Mandal, the deceased. Nimai Chand Mandal, P.W. 11, tried to save him but he was also assaulted with lathi by Bishwanath Mandal, Rabilal Mandal and Madhusudan Mandal. Nimai Chand Mandal fell down and thereafter Bishwanath Mandal and Rabilal Mandal assaulted the mother of P.W. 11. All the Appellants including Sanat Kumar Mandal assaulted the deceased. Villagers also came at the place of occurrence on hearing alarm. The injured were taken to the hospital but Ashwini died in the night. The witness has given details of the place of occurrence. In cross-examination the witness stated the assault took place in the court yard of Hare Krishna Mandal which is adjacent to the house of Sanat Kumar Mandal. Blood had fallen on the earth. P.W. 1 did not complain misbehavior by Sanat Kumar Mandal. The witness also stated about the enmity with Hare Krishna Mandal.

P.W. 7 is an independent witness who came at the place of occurrence on hearing alarm. There is nothing on the record to show that the witness was inimical to either of the Appellants. The witness stated that on alarm raised by Aduri Mandal, P.W. 6, he went to the place of occurrence where Ashwini Mandal, the deceased, Nimai Chand Mandal, P.W. 11 and Amoti Bala Mandal, P.W. 2, were present from before. He found the door of the house closed but wall of the house was damaged and he saw the occurrence of assault from there. He saw assault by Bhonda Tudu and Gudru Tudu on the deceased. He also saw other accused persons taking, part in the assault. The witness explained that Hurka is like a lathi and is used for closing the door. He saw injury on the head and chest of Ashwini Mandal, the deceased who was lying unconscious. He also found injury on the person of P.W. 11 and P.W. 2. They were taken to Raghunathpur Hospital. However, Ashwini Mandal died in the night. The witness was cross-examined at length. In cross-examination the witness stated that incident of assault took place in the court yard of Hare Krishna Mandal which is adjacent to the house of Sanat Kumar Mandal. It appears that the witness stood the test of cross-examination.

It is manifest from the discussion of evidence of eye witnesses that their evidence is consistent on the material point. The witnesses were cross-examined at length but nothing could be elicited to disbelieve their testimony nor the learned Counsel for the Appellants could be able to point out any such defect in their evidence to disbelieve their evidence. Thus it appears that their evidence is worthy of reliance.

Oral evidence is also corroborated by the evidence of Investigating Officer, P.W. 13. The Investigating Officer stated in his evidence that he recorded the fardbeyan of Nimai Chand Mandal, the informant in the Hospital. He inspected the place of occurrence and seized blood stained earth from the courtyard of. Hare Krishna Mandal and prepared seizure list, Ext. 8. The witness also gave detailed picture of the place of occurrence and stated that five houses were adjacent to the house of Appellant Sanat Kumar Mandal. House of Hare Krishna Mandal was adjacent to the house of Appellant Sanat Kumar Mandal. The witness stated that the houses had boundary wall but he did not mention in the diary as to whether there was door inside to go from one court yard to another. Therefore it is evident that finding by the Investigating Officer supports the prosecution case.

Learned Counsel for the Appellants, however, pointed out that witnesses had tried to develop the prosecution case in court. In support of the contention learned Counsel drew our attention to the evidence of Investigating Officer, P.W. 13, where from it appears that the witnesses did not say before the Investigating Officer what had been stated in their evidence in the court, such as specific allegation of assault by particular accused to particular person but it is evident that witnesses stated even before the Investigating Officer about the assault by the Appellants to the injured and the deceased. Therefore, such contradiction/development is not fatal to the prosecution case, specially in the facts and circumstances that the witnesses have categorically stated about the assault by the Appellants and their evidence is consistent.

Learned Counsel for the Appellants further pointed out that place of occurrence has not been established in this case and as such the Appellants deserve acquittal. In this regard it would not be out of place to mention that P.W. 6 has categorically stated in her cross-examination that incident of assault took place in the courtyard of Hare Krishna Mandal. P.W. 7 also stated that incident of assault took place in the court yard of Hare Krishna Mandal. Nothing specific was stated by P.W. 2 and P.W. 11 with regard to the place of occurrence nor the defence put any question with regard to the place of occurrence. However, P.W. 2 has stated in her evidence that five houses have one court yard. P.W. 13, the Investigating officer stated in his evidence that houses have separate boundary wall but he did not mention that ethers was inside door to go from one court yard to the other. However, he stated that house of Hare Krishna Mandal is adjacent to the house of Sanat Kumar Mandal. In such a situation it is evident that specific evidence is that incident of assault took place in the court yard of Hare Krishna Mandal and the Investigating Officer also found blood there and seized blood stained earth. Thus in our opinion the place of occurrence has been fully established by the prosecution.

Learned Counsel for the Appellants further pointed out that injury report and the postmortem report are not consistent and as such Appellants are entitled to benefit of doubt. In this connection it would not be out of place to mention that the evidence of witnesses is consistent on the point of assault that all accused persons assaulted the deceased. It is difficult to say that each of the accused persons gave how many blows to the deceased. The deceased was given first aid at Raghunathpur Hospital. The Doctor has been examined as P.W. 12 who stated in his evidence that he found out injury on the right side of head and also cut injury on left side of the head. However, he stated in evidence that the injury on head of the deceased may be caused by hard blunt substance. He also found swelling on the right and left lower and upper eye lids. The Doctor also examined the injured and found injuries on the person of the injured P.W. 2 and P.W. 11. However, the condition of the deceased was serious and as such he was referred to Siwari Hospital (W.B.) where he died in the night. The postmortem was held over the dead body by P.W. 3. P.W. 3 has stated in his evidence that he held postmortem over the dead body on 18.3.1984 and found one stitched wound on the head, fracture of right lateral aspect of frontal bone, fracture of 4th, 5th, 6th and 7th ribs of right side, fracture of 4th, 5th and 6th ribs of left side of the chest. Learned Counsel pointed out that no injury was found by P.W. 12 on the chest.

It is pertinent to mention herein that P.W. 12 only gave first aid to the deceased and referred the deceased to Siwari Hospital (W.B.). The eye witnesses have stated that the Appellants also assaulted on the chest. The postmortem report shows that fracture of rib was found which may not have been visible on the person of the deceased and as such the discrepancies pointed out by the learned Counsel for the Appellants is not very material. Moreover, it is well established that if the oral evidence is consistent and worthy of reliance, the inconsistency in the medical evidence shall be ignored. Though we find such discrepancy but in view of the consistent evidence of eye witnesses, we do not find any substance in the submission of learned Counsel for the Appellants to disbelieve prosecution case.

P.W. 1 is not eye witness to the occurrence of assault, she has categorically stated in her evidence in Para 19 of her evidence that she did not see the incident of assault. The witness however, has categorically stated that she along with P.W.6 was going to the tank of her village. Appellant Sanat Kumar Mandal caught her and took her to the house and confined in a room and Sanat Kumar Mandal bolted the room from inside. However, she did not complain misbehaviour with her.

Thus on consideration as discussed above we find that prosecution has succeeded in establishing its case beyond all reasonable doubts. There is no need of interference with the judgment and order of the trial court. Accordingly, this appeal is dismissed. The Appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial court to serve the remaining period of sentence.