Allowed

Gurupodo Mandal And Ors. v. State of Jharkhand

Jharkhand HC11 Sept 2018Cr.A(SJ)/952/2003

Case brief

AI extract

What is this about?

In a criminal appeal against conviction and sentence for offences under various sections of the IPC including causing fire, the High Court noted significant inconsistencies in prosecution evidence regarding timing, witnesses, and seizure. Finding the prosecution case doubtful due to lack of corroboration and internal contradictions in testimony, the court set aside the conviction and acquittal the

What did the court decide?

Appellant acquitted of all charges; judgment of conviction and sentence set aside; bail bonds liabilities discharged.

Gurupodo Mandal And Ors. Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 952 of 2003

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(Against the judgment of conviction and order of sentence dated 4^th July, 2003 passed by the Additional Sessions Judge -XIII, Dhanbad in connection with S.T. No. 259 of 1996 arising out of Gobindpur P.S. Case no. 44 of 1996, G.R. no. 731 of 1996.

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Gurupodo Mandal S/o Anil Mandal, R/o Village Dewali, P.S.- Gobindpur, District-Dhanbad.

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Anil Mandal S/o Bandhan Mandal

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Ashok Mandal S/o Anil Mandal

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Both R/o Village Dewali, P.S.-Gobindpur, District -Dhanbad.

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…… Appellants

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-Versus-

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The State of Jharkhand ...... Respondent

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. Girish Mohan Singh, Amicus Curiae For the Respondent : Mr. S.K.Keshri,A.P.P.

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By Court: A counter affidavit has been filed by the state stating that appellant no.2 Anil Mandal and appellant no.3 Ashok Mandal have died and their Death Certificates are attached to this effect. Therefore, appeal as regard Appellant no. 2 Anil Mandal and Appellant no. 3 Ashok Mandal stands abated.

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This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 4^th July,2003 passed by the Additional Sessions Judge-XIII, Dhanbad in connection with S.T. No. 259 of 1996 arising out of Gobindpur P.S. Case no. 44 of 1996, G.R. no. 731 of 1996 whereby and whereunder all the appellants were convicted u/s 147,323,341,337 and 427 of the Indian Penal Code and appellant no.1 was further convicted for the offence u/s 436 IPC. Appellants were sentenced to undergo R.I. for 1 year u/s 147 IPC, R.I. for six months u/s 323 IPC, S.I. for 1 months u/s 341 IPC, S.I. for three months u/s 337 IPC and R.I. for one year u/s 427 IPC. Appellant No.1 was further sentenced to undergo R.I. for five years u/s 436 IPC. All the sentences were ordered to run concurrently.

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The case of the prosecution as per the written report dated 09-03-1996 of the informant Taru Devi P.W.3 ,in brief, is that on 9.3.1996 at about 6 p.m. the accused persons started abusing the informant from their roof, upon which the informant Taru Devi and her husband Vinod Mandal objected. On this the accused persons started throwing bricks and stones

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in their courtyard as a result informant sustained injury upon her back. Thereafter, all the accused persons came down from their roof and surrounded the informant and further abused her and accused Gurupodo Mandal lit a match stick and set the straw of the house of the informant on fire. As a result the house of the informant and 70 Kg’s of rice and six pieces of wooden planks worth Rs. 1,500/- were burnt to ashes. It is also alleged that there was a prior dispute with the accused persons in respect of partition and a proceeding u/s 107 Cr.P.C. was also going on.

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On the basis of written report of the informant Gobindpur P.S. Case no. 44 of 1996 was registered under sections 147,323,341,337,427 and 436 of the Indian Penal Code against the accused persons. After completion of investigation, charge-sheet was submitted against the accused persons and cognizances of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the accused persons and on conclusion of the trial the learned trial court convicted and sentenced the appellants as aforesaid. Hence, this appeal.

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Prosecution had examined seven witnesses in support of its case out of which P.W.-3 Taru Devi is the informant of the case and P.W.1 Vinod Mandal is the husband of the informant. P.W.-2 is Tek Narayan Prasad who was declared hostile; P.W.-4 Baby Kumari @ babita Mandal is the daughter of the informant; P.W.-5 is Bhuwan Chandra Mandal and P.W.-6 is Bhoju Mandal and both are seizure list witnesses. P.W.-7 is the investigating officer of the case.

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P.W.-1 Vinod Mandal is the husband of the informant. He has stated in his examination-in-chief that on the day of occurrence the accused persons started pelting brick and stones. Thereafter, Gurupado Mandal set his house on fire as a result rice, cloth and other articles were burnt. In his cross-examination, he stated that accused Gurupodo Mandal came to the roof of his house from the house of the accused persons and set his straw built house on fire. He further stated that they were held guilty by the court in a case filed by the wife of Anil Mandal in case regarding destruction of paddy crop in the field.

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P.W. 2 is Tek Narayan Prasad has stated in his evidence that he did not tell the police that on 09-03-1996 at about 7 p.m. the accused Gurupado Mandal set aflame the straw house of Vinod Mandal. P.W.2 was declared hostile.

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P.W.3 Taru Devi is the informant of this case. She has stated in her

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evidence that on 9.3.1996 at about 6 p.m. she was in her courtyard. In the meantime accused Anil Mandal, Gurupodo Mandal, Ashok Mandal, Triloki Devi and Sandhya Devi started pelting bricks from their double storied roofs to her courtyard. The informant sustained injury on her back. When they objected then all the accused persons came down from their roof and came to her courtyard and surrounded them. Accused Gurupodo Mandal set aflame her straw built house as a result 70 kgs of rice and six planks of mango were burnt and she sustained a loss of Rs. 1,500/-. Informant has proved her written report which was marked as Ext.1. Informant further stated that a counter case was instituted against them.

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P.W.-4 Baby Kumari @ Babita Mandal is daughter of the informant. She has stated in her evidence that on the day of occurrence accused persons were quarrelling with them from the roof of their house and were pelting stones and bricks. Her mother sustained injury on her back by the brick. Thereafter, the accused Gurupado mandal came down from the roof and set aflame the house of her father.

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P.W.-5 is Bhuwan Chandra Mandal and P.W.-6 is Bhoju Mandal and both are seizure list witnesses. Both have stated in their evidence that they had become witness to the seizure of ashes seized by the police. These witnesses deposed that the seizer list was already prepared on which they had put their signatures.

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P.W.-7 is the investigating officer of the case. He stated in his examination-in-chief that on the written report of informant he had registered a case and investigated the case. He had inspected the place of occurrence which was situated in Tola Dewli at the house of Vinod Mandal which was built by bricks. The house is facing east and one pucca room was built in the courtyard and on the south of the courtyard two rooms were built by bricks one of which was roofed by straw. He found room roofed by straw was burnt. The wooden part of the roof was burnt and he found particles of burnt rice. P.W.7 has proved the seizure list of ash and burnt rice which was marked as Ext. 2/A and formal FIR which was marked as Ext.3.

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ARGUMENTS ON BEHALF OF APPELLANTS:

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Learned counsel for the appellant has first of all taken the Court to evidence of the informant PW-3 Taru Devi and pointed out that informant in her evidence stated that she had gone to the police station but she did not try to put out the fire which is not a natural conduct of the informant

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because if the house is burning then the owner of the house should try to put out the fire. Informant has further deposed that her husband did not come to the police station, and he was trying to put out the fire. This witness has admitted that a case has also been registered by the appellants against them.

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Learned counsel then referred to the evidence of PW-1 Vinod Mandal, who is the husband of the informant and submitted that P.W.1 has stated that the time of the occurrence was about 4 O’clock in the evening but on the other hand PW-3 has stated that the time of the incidence as 6 p.m., therefore there is inconsistency in the evidence regarding the time of occurrence. Counsel for the appellant further submits that from the evidence of P.W.1 it appears that Gurupado Mandal had come from the roof of his own house to the roof of the house of the informant and then burnt the house which has not been corroborated by the evidence of PW-3, Taru Devi. Counsel further submitted that P.W.-1 has deposed that he and his wife had gone to the police station. Counsel points out that this is again different from the evidence of PW-3 because she had deposed that she went to the police station alone. P.W.1 has admitted that wife of Anil Mandal had also filed a case against them and they have been convicted in the case against them. P.W.1 had not stated in his deposition that all accused have come in the courtyard which is again in variance with the evidence of informant P.W.-3 as she deposed that all the appellants had come down and come to her courtyard. Learned Counsel further submitted that P.W.1 has stated in his evidence that he does not know who put out the flames and that it is very strange that he does not know as to who had put out the flames of his house.

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Learned counsel further referred to the evidence of PW-4 Baby Kumari @ Babita Mandal who is the daughter of the informant. She had indicated the time of occurrence as 7 p.m. which is again inconsistent from the timing given by her mother as 6 p.m. and father as 4 p.m. She also deposed that only Gurupado Mandal had come down which is highly inconsistent with the evidence of PW-3 who had said that all the accused had come down.

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Learned counsel for the appellants further referred to the evidence of PW-5 and PW-6, Bhuwan Chandra Mandal and Bhoju Mandal who are seizure list witnesses and submitted that seizure is also doubtful because it is defective. The seizure list witnesses were forced to sign on the paper in

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which something was already written. Therefore, counsel submits that seizure list memo cannot be relied upon and makes the case of the prosecution doubtful. Learned counsel further submitted that P.W.2 was declared hostile by the prosecution.

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Referring to the evidence of PW-7, who is the investigating officer of the case, learned counsel submitted that initially complaint was lodged by Taru Devi in the form of written report is itself most surprising because the incident is of 6 p.m. in the evening as stated by the informant but in his evidence Investigating officer stated that he received the written report of the informant Taru Devi on 9-3-1996 at about 7 p.m. So, in case of alleged house burning it is not possible to file a written report in police station within one hour of occurrence. He has pointed out that it is strange that the ladder used in commission of crime was not seized by the investigating officer.

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Apart from the defects which the learned counsel had tried to point out from the evidences of the prosecution witnesses, he further submits that there is no independent eye witness to support the case of the prosecution. It is a case between two gotiyas and they were living side by side and there are domestic dispute between themselves so the entire incidence has to be viewed in that light. The evidences given by the prosecution witnesses are inconsistent in many ways. There is inconsistency of time regarding the occurrence of the offence and who went to the police station. Learned counsel further pointed out that section 323 IPC cannot be made out against the appellants because there is no allegation regarding the same. Moreover, there is no medical evidence to this effect and therefore conviction cannot be sustained. Similarly, offence u/s 337 IPC cannot be made out because no hurt had been made out because no assault took place and there is no evidence of the doctor for the same. These two allegations regarding section 323 and 337 IPC is not made out and therefore other sections also became suspicious.

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ARGUMENTS ON BEHALF OF STATE-APP:

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Learned A. P.P. Mr. S.K.Keshri has argued that now there is only one surviving appellant namely Guru Pado Mandal and apart from the conviction made against him relating to other sections of the Indian Penal code the main conviction is u/s 436 IPC. He has pointed out to the evidence of PW-5 and PW-6 who are the seizure list witnesses and said that the evidence of both the seizure list witnesses is proper because it was

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written down and then they had signed on it. There is no denial on the part of PWs. 5 and 6 as to the genuineness of their signatures. Therefore, in the absence of their denying, the seizure list witnesses’ evidence and the seizure list cannot be done away. Learned Counsel has also referred to the evidence of investigating officer that the seizure was made in presence of witnesses and then they had signed on it and therefore, the appellants cannot take advantage from the same. Investigating officer had also proved the seizure memo which was marked as Ext. 2/A. Counsel also pointed out that the investigating officer had proved the place of occurrence. Learned APP pointed out that inconsistencies that have been pointed out by the appellant are minor and even if they are there because the deposition was taken after some reasonable time certain minor inconsistencies are definitely going to occur and therefore, the said inconsistencies should not be taken very seriously. Therefore, the conviction of the appellant under all the sections i.e. under sections 147,341,323,337, 427 and 436 is fully justified and requires no interference by this court.

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FINDINGS:

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Having heard counsel for both sides, having gone through the records of the case and in the facts and circumstances of the case it is observed that this apparently is a case between parties who are related and there is a domestic dispute between them which is corroborated by a case under section 107 Cr.P.C. existing between both the parties for some time. Therefore, the case has to be viewed in that background.

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Apart from the evidence of the informant PW-3 Taru Devi, the prosecution case is only supported by her husband PW-1 Vinod Mandal and her daughter PW-4 Baby Kumari and there is no other eye witness to the incident so reliance then has to be made only on the related witnesses who are the members of a family and who have domestic and prior dispute against the other side. The timing of the incidence has been given by the three family witnesses i:e by the informant P.W.-3 as 6 p.m., by P.W.1,husband of the informant, as 4 p.m. and the daughter of the informant P.W.-4 as 7 p.m. So there is a significant range of times given regarding the incidence. The inconsistencies in the time of the incident make the case of the prosecution doubtful.

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PW-3 the informant Taru Devi, deposed that she had gone to the police station alone to lodge the report while her husband PW-1 Vinod Mandal has stated in his cross examination that he had gone to the police station along with his wife which makes the case of the prosecution more

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doubtful.

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In the evidence of the informant it is said that while she had gone to the police station her husband Vinod Mandal was trying to put out the fire, however, from para-37 of the evidence of her husband it is revealed that he does not know who had put out the fire which is a gross inconsistency indicating that nobody from the family was there to put out the fire which would then indicate that they may not have seen anyone committing the arson also.

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Moreover, the evidences of PW-5 Bhuwan Chandra Mandal and PW-6 Bhoju Mandal who were said to be seizure list witnesses raises doubt because they have deposed that they had signed on a paper on which something was already written. So, the seizure list memo was already prepared and they had only signed on it meaning thereby that seizure list was not prepared in presence of the seizure list witnesses and hence makes the prosecution case further doubtful. PW-1 has deposed in his evidence that the appellant no.1 came to his house by using a ladder. But PW-3 narrates her own story by saying that all the accused came to her house from the gate and surrounded them. There is again inconsistency in the version of PW-1 and PW-3. This story again raises doubt in the prosecution case as to how the appellants and in what number had entered the house of the informant which the prosecution has failed to prove. Hence prosecution has failed to prove the charge against the appellant, under section 436 of I.P.C as to causing fire in the house of the informant and consequently charges under section 337 and 427 against the appellant also collapse.

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Regarding the offence for which appellant has been convicted u/s 323,there is no evidence of the doctor or injury report on record and hence conviction of the appellant under section 323 of I.P.C is also doubtful.

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Hence, on the aforesaid reasoning, the judgment of conviction and order of sentence dated 4^th July,2003 passed by the Additional Sessions Judge-XIII, Dhanbad in connection with S.T. No. 259 of 1996 arising out of Gobindpur P.S. Case no. 44 of 1996, G.R. no. 731 of 1996 whereby the appellant was convicted u/s 147,323,341,337,427 and 436 of the Indian Penal Code cannot sustain and is set aside.

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Therefore, appellant no. 1 Gurupado Mandal is acquitted of all the charges leveled against him and he is discharged from the liabilities of his bail bonds.

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This court appreciate the assistance rendered by Mr. Girish Mohan

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Singh, the learned amicus curiae. The Secretary, JHALSA shall reimburse the learned Amicus on submission of bill(s).

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Accordingly, appeal of appellant No.1 is allowed.

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Jharkhand High Court,Ranchi dated:11.09.2018(Nibha)/NAFR

Gurupodo Mandal And Ors. v. State of Jharkhand

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Gurupodo Mandal And Ors. v. State of Jharkhand

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