Allowed

Nayan Mandal v. State of Jharkhand

Jharkhand HC13 Jan 2020Cr.A(DB)/1048/2009

Case brief

AI extract

What is this about?

High Court judges allowed criminal appeals challenging convictions under IPC 302/34. The court held that the prosecution failed to prove the charge beyond reasonable doubt due to lack of motive and inadmissible confessional statements, setting aside the conviction and sentencing.

What did the court decide?

Judgment of conviction set aside; appellants acquitted of charges; one appellant discharged from bail, the other set free forthwith.

Nayan Mandal Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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[Against the judgment of conviction dated 12.02.2009 and the order of sentence dated 17.02.2009 passed by the learned Additional Sessions Judge-I, Rajmahal in S.C. No. 48/08]

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Criminal Appeal (D.B.) No.1048 of 2009

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With

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Criminal Appeal (D.B.) No. 320 of 2009

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Nayan Mandal, son of Shri Niren Mandal, resident of villageBegumganj, PS- Radha Nagar, Rajmahal, District- Sahibganj.

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.....Appellant (in Cr. Appl. (D.B.) No.1048 of 2009)

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Rupali Devi, wife of Late Adhin Mandal, resident of Begamganj, PSRadhanagar, District- Sahibganj (Jharkhand).

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….Appellant (in Cr. Appl. (D.B.) No. 320 of 2009) Versus

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The State of Jharkhand …...Respondent (in both cases)

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----For the Appellant : Mr. Din Dayal Saha, Advocate. For the Respondent : Mr. Azeemuddin, APP.

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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J U D G M E N T

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Per, Shree Chandrashekhar, J. Dated:13^th January, 2020

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Oral Order

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In S.C. No. 48/08, the appellants have been convicted and

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sentenced to RI for life and fine of Rs.5000/- each.

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Nayan Mandal and Rupali Devi were named as accused by Ratan Mandal in his fardbeyan, which was recorded on 23.08.2007 at about 22:45 hrs. On the basis of his fardbeyan, Rajmahal (Radhanagar) P.S. Case No. 172/07 has been lodged against them under section 302/34 of the Indian Penal Code. During the trial, the prosecution has examined ten witnesses.

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The case set up by the prosecution against the appellants is primarily based on circumstantial evidence: (i) Nayan Mandal was found lying by the side of the deceased, (ii) illicit relationship between Nayan Mandal and Rupali Devi, and (iii) confessional statement of Nayan Mandal.

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The appellants have set up a defence that the informant and his brothers have killed Adhin Mandal. They have examined four witnesses; the appellants have examined themselves during the trial.

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The law on the circumstantial evidence is by now well-settled. In a case founded on circumstantial evidence, the prosecution must first prove the incriminating circumstances against the accused and then prove that the chain of the incriminating circumstances are so complete that these are pointing towards guilt of the accused and that it was the accused and accused alone who has committed the crime. The law on the subject has been lucidly explained by the Supreme Court in “Hanumant Govind Nargundkar Vs. State of M.P.” reported in AIR 1952 SC 343. In this case, the Supreme Court has observed thus;

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“It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

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In his fardbeyan, the informant has stated that at about 8:008:30 p.m in the night he had dinner. At that time he heard sound of falling something in the paddy field. When he came out from his house he saw one woman fleeing away and two persons quarrelling with each other. On his raising hulla, his brothers, namely Tapan Mandal and Adhir Kumar Mandal also came there. In the torchlight he has seen one person lying on the earth but the other person was dead; Adhin Mandal was the deceased. The informant has been examined in the court as PW-9. In his examination-in-chief, he had stated that when he along with his brothers had gone to the place of occurrence they found one person dead and

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another person lying on the ground. On seeing them coming there he got up and ran away, but he was apprehended by the informant and his brothers. He was Nayan Mandal, the appellant. He has seen mud in the mouth, nose and ear of Adhin Mandal and blood was also oozing from his mouth. In the meantime, several villagers had assembled there and the appellant has confessed his guilt before them.

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PW-5 and PW-8, who are brothers of the informant, have also deposed in the court that they have apprehended the appellant and the appellant has confessed that he has killed Adhin Mandal.

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The other prosecution witnesses – Logan Mandal PW-2, Sukhdeo Karmkar, PW-3 and Rajkumar Mandal PW-4 – have come to the court to depose that they have found that Nayan Mandal was apprehended by the informant and dead body of Adhin Mandal was lying on the ground. They have also stated that at the place of occurrence several persons had assembled, however, they have admitted in their cross-examination that they have not seen the appellant assaulting Adhin Mandal. In their examination-in-chief, PW-2, PW-3 and PW-4 have stated that they did not state before the police that the appellant Nayan Mandal and Rupali Devi murdered Adhin Mandal and that Nayan Mandal has illicit relationship with Rupali Devi. The informant has also stated in his examination-in-chief that before the police he has not spoken about illicit relationship of the appellants Nayan Mandal and Rupali Devi and that when they were found in compromising position by Adhin Mandal they killed him.

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From the aforesaid evidence of the prosecution witnesses, illicit relationship of Nayan Mandal and Rupali Devi is not proved. The prosecution has also failed to prove that the informant and other prosecution witnesses have stated before the police that Adhin Mandal had found the appellants in compromising position and that was the reason the appellants have killed him. Thus, motive for the occurrence has not been proved by the prosecution.

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The fardbeyan of the informant was taken by the Investigating Officer at about 22:45 hrs. but before that at about 10:00 p.m. the appellant Nayan Mandal has given his confessional statement before the villagers. The confessional statement of Nayan Mandal, under which he

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has stated that when Adhin Mandal caught him with Rupali Devi he started fleeing away, however, he fell in the water and thereafter Adhin Mandal caught him but in the meantime Rupali Devi came there and both of them strangulated Adhin Mandal in the water, relates to the past events and, therefore, not admissible in evidence.

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Section 27 of the Evidence Act reads as under:

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“27. How much of information received from accused may be proved. — Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

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In “Pulukuri Kottaya V. Emperor” reported in AIR 1947 PC 67 , the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved. The statement of an accused that he has committed murder is a past event and this part of the confessional statement of an accused is not admissible in evidence under section 27 of the Evidence Act. Though statement before the police is not admissible in evidence and hit under section 25 and 26 of the Evidence Act, the part of the confessional statement of an accused which leads to discovery of a new fact is admissible in evidence for the reason that recovery of the incriminating material lends credence to his statement made in his confessional statement.

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Dr. Alimuddin Ansari PW-1, who has conducted the postmortem examination on 24.08.2007 at 2:45 p.m., has found thus:

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“(i) Bleeding from mouth and nostrils, both eyes were closed but eye ball were enlarged;

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(ii)Face dark blue & black and swollen face lividity pressing tongue swollen and mildly protruded and bruise & laceration present and hand finger was clutched

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and neck swollen and irregularly distributed bruise and cresentic abrasion present over face and on the front side of neck under chin upper part of chest;

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(iii) Penis and scrotum swollen and few bruise and abrasion found which were irregular in shape and size.”

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The father and mother of the appellant Nayan Mandal have been examined as DW-1 and DW-2. Rupali Devi has examined herself as DW-3 and Nayan Mandal has examined himself as DW-4. During her cross-examination, DW-3 has stated that at the time of the incident she was in her matrimonial house. It has also come in her cross-examination that her husband had drinks in the house of Ratan Mandal. She has stated that her statement was recorded by the police and in her statement before the police she has stated that her husband left home with her brother Ratan Mandal and her husband had drinks together with her brother. They had started a quarrel regarding landed property whereupon her brothers have killed her husband. DW-4 has denied his relationship with Rupali Devi. He has stated that Ratan Mandal and his brothers have forcibly taken his signature on a plain paper. During their crossexamination, DW-3 and DW-4 have remained unshaken. It is wellsettled that during the trial with the same yardstick evidence laid by the prosecution and the defence have to be tested. It is also elementary in a criminal trial that it is for the prosecution to prove its case beyond all reasonable doubt and if an accused is able to show from the prosecution’s evidence or leading evidences by himself that his defence is a probable one, the accused is entitled for the benefit of doubt.

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On the basis of the evidences laid by the prosecution, it cannot be held that the prosecution has proved that the appellants have committed the crime. On the contrary, the evidence laid by the appellants and admission of the prosecution witnesses; that they did not inform the police about relationship of the appellants or that the appellants were found in a compromising position, create substantial doubt on complicity of the appellants in the occurrence.

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In the aforesaid state of evidence, we hold that the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code against the appellants and, accordingly, the judgment of conviction of the appellants, namely, Nayan Mandal in Cr. Appl. (D.B.) No.1048 of

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2009 and Rupali Devi in Cr. Appl (D.B.) No. 320 of 2009 under section 302/34 of the Indian Penal Code dated 12.02.2009 and the order of sentence of RI for life and fine of Rs.5000/- each under section 302/34 of the Indian Penal Code dated 17.02.2009, passed by the learned Additional Sessions Judge-I, Rajmahal in S.C. No. 48/08 are set aside.

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The appellants, named above, are acquitted of the criminal charge framed against them in S.C. No. 48/08.

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The appellant, namely, Rupali Devi in Cr. Appl. (D.B.) No. 320 of 2009 is on bail and, therefore, she shall be discharged of liability of the bail-bonds furnished by her and the appellant, namely, Nayan Mandal in Cr. Appl. (D.B.) No.1048 of 2009, who is in jail, shall be set free forthwith, if not required in connection to any other case.

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In the result, Cr. Appl. (D.B.) No.1048 of 2009 and Cr. Appl. (D.B.) No. 320 of 2009 are allowed.

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

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Let a copy of the judgment be communicated to the trial court through FAX.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated-13^th January, 2020 Sharda/S.B. NAFR

Nayan Mandal v. State of Jharkhand

Case brief

What is this about?

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Nayan Mandal v. State of Jharkhand

Case brief

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