Surya Narayan Mandal and Sattan Mandal vs The State of Bihar

Mr. Justice Amaresh Kumar Lal

Surya Narayan Mandal and Sattan Mandal have preferred this appeal against the judgment of conviction and sentence dated 28.2.1989 passed by the learned Sessions Judge, Katihar in Sessions Case No. 92 of 1984 and Sessions Case No. 102 of 1987 respectively by which both of them have been convicted and sentenced to rigorous imprisonment for life u/s 302/34 I.P.C. and rigorous imprisonment for 7 years u/s 201/34 I.P.C. and both the sentences to run concurrently.

According to written report (Ext. 6) submitted by Lila Devi (P.W. 5), the wife of deceased Paddu Mandal the prosecution case, in brief, is that in the midnight of 31.5.1982- 1.6.1982 when her husband Paddu Mandal (deceased) was sleeping in his house, 8 persons came. She identified two of them as Sattan Mandal and Surya Narayan Mandal. The two persons who were having pistol and bhala overpowered her and threatened to kill, if she raised alarm. They stated that her husband had made kept Tara Devi (P.W.7), as such her husband would be killed. The accused persons throttled her husband and thereafter tied his dead body in bags and beds and went towards east. Two persons continued to catch her 20-25 minutes even after taking the dead body by them. Thereafter, both of them miscreants fled alway towards east. Thereafter, she raised alarm. In the meantime, the wife (P.W. 7) of Changari came there. This written information was given to Sonapur O.P. on 3.6.1982 in presence of Sri Shiv Thakur of village Sonapur and Gopi Mandal of village Chandan Nagar (none of them have been examined). It was forwarded to Barari police station, thereafter, Barari P. S. Case No. 126 dated 3.6.1982 was registered u/s 302, 201/34 I.P.C. A formal FIR (Ext. 3) was drawn.

After investigation charge-sheet was submitted against both the appellants. Cognizance was taken and the case was committed to the Court of Sessions. Charges were framed against the appellant Surya Narayan Mandal in Sessions Trial No.92 of 1984 for the offence punishable u/s 302/34 and 201 I.P.C. It appears that accused appellant Sattan Mandal was absconding as such his case was committed to the Court of Session. Later on, he was tried vide Sessions Trial No. 102 of 1987 for the offence punishable u/s 302/34 and 201 I.P.C.. on 13.8.1987 both the appellants pleaded not guilty as such the trial was started against both of them separately vide aforesaid two sessions cases.

It appears from the record of Sessions Trial No. 102 of 1987 that on 6.2.1989 a petition was filed on behalf of the accused Sattan Mandal that the witness examined on behalf of the accused in Sessions Trial No. 92 of 1984 be treated as the defence witness in Sessions Trial No. 102 of 1987. It was not objected by the prosecution as such the prayer of the accused Sattan Mandal was allowed and the defence evidence on behalf of Satan Mandal was closed. The defence witness in Sessions Trial No. 92 of 1984 was allowed to be treated as the evidence in Sessions Trial No. 102 of 1987, thereafter, the defence evidence was closed and the case was fixed for argument on 17.2.1989. It appears that both the sessions trials have been heard together on 24.2.1989 and a common judgment has been delivered on 28.2.1989.

The defence of the apppelants is that they have been falsely implicated in this case at the instance of Bibhuti Goswami with whom these accused had enmity.

Let us examine as to whether the prosecution has been able to substantiate its case against the appellants beyond all reasonable doubts.

The prosecution has examined following witnesses in Sessions Trial No. 92 of 1984 to prove its case:- P. W. 1 Dr. Gaya Prasad Diwakar, P. W. 2 Harihar Singh, P. W. 3 Madho Tatma, P. W. 4 Manorama Kumari, P. W. 5 Lila Devi, P. W. 6 Dwarikar Pd., P. W. 7 Tara Devi, P. W. 8 Vishwanath Mandal, P. W. 9 Harihar Mandal, P. W. 10 Chhana Lal Bhaumik, P. W. 11 Anirudh Mandal and P. W. 12 Jaggu Mandal. In Sessions Trial No. 102 of 1987 out of them six witnesses have been examined who are P. W. 1 Manorama Devi, P. W. 2 Most. Lila Devi, P. W. 3 Anirudh Mandal, P. W. 4 Jaggu Mandal, P. W. 5 Harihar Singh and P. W. 6 Dr. Gaya Prasad Diwakar. D. W. 1 has been examined in Sessions Trial No. 92 of 1984 who has also been treated as defence evidence in Sessions Trial No. 102 of 1987 as aforesaid.

P. W. 1 Dr. Gaya Prasad Diwakar has stated that on 6.6.1982 he was posted at Purnea Sadar Hospital as Civil Assistant Surgeon and held the post-mortem on the dead body of Paddu Mandal, son of Lal Chand Mandal of Govindpur, P.S. Pirpaiti District Bhagalpur. The dead body was identified by Dafadar Harihar Singh (P.W. 2) and Chaukidar Madhu Tatma (P. W. 3). P. W. 1 has found the following

It was a part of a male body in highly decomposed state. Left lower limb and both upper limbs below the shoulder & hip were missing. Tissues from right growing abdominal wall and all abdominal viscera were missing. The remaining tissues was attached to posterior of the abdominal wall highly decomposed, blacken with maggots all over. Genitalia missing skin of the posterior abdominal wall and thoracic cage present and was sodden and bleached. The breast was not present suggesting that the body was of a male. Costal cartilage calcifying. The head was severed from the neck of the body at the level of C- 7 vertebras (sharp cut).

The detached skull with all tissues were missing and cervical vertebral down to C-7 with cut sharp lower edge also sent for post-mortem examination corresponding to the upper cut sharp edge mentioned above suggesting that the neck was of the same body. Vertibera were attached with the skull with ligaments only and no other soft tissues present over head and neck. Only two teeth were loosely attached to the lower jow.

One incised wound over front of chest communicating with the throcic cavaity 1"x1/2"x4 incised would over back chest. 1" x 1/2" x 1/2" x 1/2" All thoracic viscera missing.

No opinion can be given whether the injuries were ante mortem or post mortem as the body was highly decomposed. Time elapsed since death about 5 to 7 days. No definite opinion can be given about the cause of death. It can be said that the head was severed by sharp cutting weapon. The post-mortem report has been marked as Ext. 1. In cross-examination he has stated that the dead body was in fully decomposed condition. Ordinarily, identification was not possible as all the tissues of the skull were missing. No bones of the dead body was examined for the purpose of determination of age. The post-mortem report has been marked Ext. 1.

This witness has been examined in Sessions Trial no. 102 of 1987 as P. W. 6. It appears that same statement has been made there.

P. W. 2 Harihar Singh has stated that on 6.6.1982 he took the dead body of Paddu Mandal to Purnea Hospital and identified the dead body before the doctor. In his cross-examination he has stated that the dead body was highly decomposed.

Harihar Singh has been examined in Sessions Trial No. 102 of 1987 as P. W. 5. The examination-in-chief is the same. In his cross-examination he has stated that a dead body was taken out from the water at the instance of the police officer. The dead body was highly decomposed and smelling bad. There was no head in the dead body. He had no knowledge about the other parts of the body. He cannot say the dead body was of whom. The wife of Paddu (deceased) told that it was the dead body of her husband. Nothing was recovered except the dead body.

P. W. 3 Madho Tatma, P. W. 7 Tara Devi P. W. 8 Vishwanath Mandal and P. W. 9 Harihar Mandal (examined as P. W. 3 in Sessions Trial No. Mandal have been tendered. P. W. 11 Anirudh 102 of 1987) has also been tendered and in his cross-examination he has stated that he does not know about the occurrence.

P. W. 4 Manorama Kumari is the daughter of the deceased she has stated that her father had a basa in the Ganga Diyara in which his father was living with her mother, brother and sister. On the fateful night her father (deceased) Paddu Mandal was sleeping inside the house of Machan and the other members were sleeping on the ground. Some persons entered into the house. Dibiya was burning. Two persons asked the inmates of the house to keep quite. She identified Suraj Narayan Mandal (the appellant) as one of them. Other persons catching hold of the deceased sat on the chest and throttled his neck. Her father died. They took out the dead body tying in the bed. Later on, two persons also fled away. On raising alarm, Tara Devi (P.W. 7) came there. After a few days the dead body was recovered from the bank of the river which had no hands and the head was also chopped up. She identified the dead body as of her father. In her cross-examination, she has stated that the dead body was recovered after four days of the occurrence. Flesh of the dead body was fallen. She identified the dead body of her father by seeing bones. The inquest report was prepared by the police officer who took her signature and the signature of her mother (P.W. 5) and Tara Devi (P.W. 7). She has stated that it was cold day and the inmates of the house were sleeping by covering themselves. When the culprits entered inside the house, they asked them not to uncover, failing which they would killed them. When the culprits fled away, the inmates of the house removed their wrapper. Tara Devi (P.W. 7) came on call. No other persons came there. In the morning they went to the village Kali Prasad. She has further stated that there are houses of about 25-30 persons near her house but she did not tell about the occurrence to them. Dhibari was burning which was extinguished by the culprits. Dhibari was taken away by the Investigating Officer who came on the next day of the occurrence. She has also stated that prior to the occurrence Surya Narayan Mandal used to come to her house.

P. W. 4 Manorama Devi has also been examined as P. W. 1 in Sessions Trial No. 102 of 1987 and has stated that she was sleeping in her house with her parents in the Basa. Her father (deceased) was sleeping on the Machan. She and her mother (P.W. 5= P.W.2) were sleeping on the ground. After hearing noise, he woke up and saw that a Dhibari was burning in the house. She also saw that the accused Sattan was throttling her father, two persons catching hold of his hands, two persons were catching hold of legs, and two persons were threatening her with pistol and Bhala. Out of them Surya Narayan Mandal was armed with pistol. Her father died due to throttling. Thereafter, culprits tied the dead body of her father from the bed and took out. Two persons remained with her and did not allow her to come out. Later on, both of them fled away. On raising alarm, Tara Devi came there. Later on, the dead body of her father was found thrown in the bank of river Ganga. She and others identified the dead body by his cloth. The dead body was decomposed. In her cross-examination she has stated that in the night of the occurrence her brother was not present in the Basa. There are about 3-4 Basas near her house at a distant places. She has further stated that her basa was in the land of Bibhuti Babu. His land was cultivated by her father. Her ancestral house is in the village Dahara in the northern side of the river Ganga and the Basa is in the southern side of Ganga. She has further stated that there was no door and windows in the house. It was open. She cannot say about the number of intruders. Her attention has been drawn towards the f` that in her previous statement she did not name Sattan as intruders. On the next day she went to village Kali Prasad, the naihar of her mother under Pirpaiti police station. She and her mother did not tell about the occurrence to the neighbourers. She has admitted that the dead body which was recovered, had no hands and head it was highly decomposed.

It appears from the statement of Manorama Devi who has been examined in both the cases that she has admitted that the dead body was highly decomposed. It was headless. She identified the dead body by bones. In Sessions Trial No. 92 of 1984 she has named Surya Narayan Thakur as one of the intruders. She has not named Sattan as intruders in the house while deposing in Sessions Trial No. 92 of 1984 whereas she has developed her version while examining as P.W. 1 in Sessions Trial No. 102 of 1987 as such her evidence is contradictory and does not inspire confidence.

P. W. 5 Lila Devi is the informant and the wife of the deceased. She has stated that on the fateful night her husband was sleeping on the Machan and she was sleeping with her children on the ground. In the midnight after hearing the noise she woke up and saw eight persons entered into the house. Two persons came to her and asked her not to raise alarm and six remained in front of Machan. Sattan was throttling and other persons were catching hold of her husband. She also identified Surya Narayan Mandal in the light of Dhibari who had pistol in his hand. Her husband died due to pressing of neck by Sattan. Thereafter, her husband was tied in the bed by rope and carried out by them. Two persons remained there. She also went out later on. On raising alarm, Tara Devi (P. W. 7) came there. On the next day, she searched her husband she also went to the village of Kali Prasad and searched him. She informed about the occurrence to Mukhiya and Sarpanch. She got written the petition by Mukhiya Dwarika prasad (P.W.6) and lodged the case in Sonapur police camp. When she returned from the police station, she came to know that the dead body of her husband has been recovered lying in the bank of the river Ganga. Hands, legs and neck of the dead body were chopped up. She identified the dead body of her husband by face, body and cloth. She has further stated that prior to the occurrence the accused were threatening to kill her husband as he was entangled with Tara Devi, Bhabhi of Sattan Mandal. In her cross-examination she has stated that her house was in the land of Bibhuti Babu who had also given land to her husband for cultivation and he used to help him in purchasing cattle. 5-7 Basas are near her house. Tara Devi and her husband were friends. She used to help her. She has also stated that there also allegation against her husband that he molested the wife of Sattan. Her husband had also dispute in connection of fishing with Gangot. She has also stated that she went to Pirpaiti police station with her father but the police officer did not lodge any case and asked her to go to Baradih. She has stated that at the time of occurrence Dibiya was burning inside the Chulha. Again she said that it was placed on a brick. She had put it in the Chulha and it was given to the police officer. She has also admitted that Surya Narayan Mandal is an old man. His age is of her father. She does not know as to whether Bibhuti Babu had land dispute and litigation is going on in Bhagalpur. Arjun Gosai had lodged a case against Surya Narayan Mandal and others prior to lodging this case. It is not a fact that she has falsely implicated Surya Narayan Mandal at the instance of Arjun Gosai.

Lila Devi has been examined as P. W. 2 in Sessions Trial No. 102 of 1987. She has stated that her husband was sleeping on the Machan and she was sleeping with her daughters on the ground. She woke up after hearing noise and saw that some persons were throttling her husband. They were 7 to 8 in number. Out of them she identified Sattan and Surya Narayan. Sattan was sitting on the chest of her husband and Surya Narayan was threatening her. One or two persons were catching hold of her husband. Dhibari was burning. Her husband died due to throttling. The culprits bundled her husband in the bed and took him out. After their departure she raised alarm. Tara Devi came there in the morning. She went to her father''s house and narrated about the occurrence to her father and Mukhiya Jee and lodged the case in the police station on the third day. She has stated that she identified the accused in the light of Dhibari and Moon. After 4 days the dead body was recovered from the bank of river Ganga. She has identified the dead body by bed, dhoti and other cloths.

P. W. 6 Dwarika Prasad Mandal is the Mukhiya. He has stated that on the next day of the occurrence the wife of Paddu came to him and told him that her husband has been killed. He also went to search his dead body. The dead body was recovered after four days. Seizure list was prepared and he identified his signature (Ext. 2) on the seizure list. He has specifically stated that the wife (P.W. 5) of Paddu did not disclose the name of killers. Dhibiya was also not seized in his presence. He has been declared hostile. He denied that he disclosed the name of Sattan Mandal and Surya Narayan Mandal as culprits. In his cross-examination he has stated that Paddu and Arjun Gosai were Sipahi. Bibhuti Gosai and Arjun Gosai has land dispute with the accused Surya Narayan Mandal for a long time. Pairavi of this case has been made by Arjun Gosai.

P. W. 10 Chhana Lal Bhowmik is the Investigating Officer in this case. He has visited the place of occurrence. He has not found any blood stains on the place of occurrence. He found scattered the mild grass (kas) there. He has not been examined in S. Tr. No. 102 of 1987.

Learned counsel for the appellants submits that the prosecution has not been able to prove its case. The dead body was highly decomposed and it was not fit to be identified. The prosecution witness as well as the doctor has also stated this fact. Since the identification of the dead body is highly suspicious, the appellants should not be held guilty for murder.

After hearing learned counsel for both the parties and on perusal of the materials on record it appears that the entire case appears to be suspicious. P. W. 5 Lila Devi is the informant of this case. She has stated that she narrated about the occurrence to her father and Mukhiya Dwarika Prasad Mandal (P.W. 6) disclosing the name of the appellants. Her father has not been examined. Mukhihya has been examined as P. W. 6. He has stated that the wife (P.W. 5) of Paddu (deceased) has not stated about the names of the killers on her husband. She had not disclosed the names of the appellant as the killers of her husband. In his cross-examination he has stated that Paddu (deceased) and Arjun Gosai were sipahi of Bibhuti Gosai. Bibhuti Gosai and Arjun Gosai had land dispute with Sattan Mandal (appellant) for a long time. Manorama Kumari examined as P. W. 4 and P. W. 1, is the daughter of the deceased. She has admitted that the dead body which was recovered had no head and hand and she identified the dead body of her father by seeing his bones. Lila Devi the wife of the deceased Paddu Mandal has been examined as P. W. 5 and P. W. 2. She has also admitted that the dead body had no hands, legs and neck. She identified the dead body to be the dead body of her husband by face, body and cloth.

On the point of identification of the dead body as well as on the point of narration about the occurrence in both the cases are contradictory and her evidence does not inspire confidence.

Harihar Singh Dafadar has been examined as P. W. 2 in Sessions Trial No. 92 of 1984 and P. W. 5 in Sessions Trial No. 102 of 1987. He has also admitted that the dead body which was recovered from the water, was highly decomposed. It was headless. It cannot be said as to whose dead body it was. Nothing was recovered except the dead body from the water, whereas, his wife Lila Devi (P.W. 5) has stated that she identified her husband Paddu Mandal (deceased) by face, body and cloth. P. W. 4 Manorama Kumari has stated that she identified the dead body by his bones. It appears from the evidence of Dr. Gaya Prasad Diwakar (P.W. 1), who has also been examined as P. W. 6 in Sessions trial No. 102 of 1987 that the identification of the dead body was not possible as all the tissues of skull was missing. No bone of the dead body was examined for the purpose of determination of age. P. W. 2 has stated that only the dead body was recovered and no other material. In that view of the matter the evidence of Manorama Kumari and Lila Devi, the daughter and wife of the deceased respectively does not inspire confidence and their evidence is not fit to be relied upon.

Considering the facts and circumstances, we find that the prosecution has not been able to substantiate its charge against the accused. The impugned judgment of conviction and sentence is not fit to be sustained. It is set aside. Both the appellants are acquitted of charges and they are also discharged from the liabilities of their bail bonds.

In the result, this appeal is allowed.