Allowed

Bhopal Mandal and Ors. v. State of Bihar

Patna HC5 May 2015CR. APP (DB)/432/1993

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against conviction and death sentence. It quashed the impugned orders and held that the contradictory and unreliable eyewitness evidence failed to prove guilt beyond reasonable doubt, leading to the accused's acquittal.

What did the court decide?

Impugned conviction and sentence set aside. Appellants held not guilty and acquitted under benefit of doubt.

Bhopal Mandal and Ors. Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.432 of 1993

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(AGAINST THE JUDGMENT OF CONVICTION, DATED 28^TH SEPTEMBER, 1993, AND THE ORDER OF SENTENCE, DATED, 1^ST OCTOBER, 1993, PASSED BY SHRI HARI SHANKAR PRASAD, 6TH ADDITIONAL SESSIONS JUDGE, BHAGALPUR, IN SESSIONS TRIAL NO. 115 OF 1983, ARISING OUT OF SANHAULA POLICE STATION CASE NO. 16 OF 1980)

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Bhopal Mandal , son of Saudagar Mandal

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Doman Ansarai, son of Gyas Ali Ansari

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Nageshwar Mandal, son of Sahdeo Mandal

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Ramlal Thakur, son of Tetar Thakur

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Liyqkat Ansari, son of Gyas Ansari

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Rabul Ansari, son of Lalu Amsari

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All residents of Satihiyari Bahiyar,(Bagicha), P.S. Sanhaulla at present P.S. Sanokhar, District Bhagalpur.

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.... .... Appellants

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Versus

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The State of Bihar .... .... Respondent

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Appearance :

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For the Appellant : Mr. Krishna Mohan, Advocate Mr. Praveen Kumar, Advocate

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For the State : Mr. Ajay Mishra, APP

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=========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI

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and

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HONOURABLE MR. JUSTICE VIKASH JAIN

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ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 05-05-2015

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By the judgment, dated 28.09.1993, passed in Sessions Trial No. 115 of 1983, learned 6^th Additional Sessions Judge, Bhagalpur, while convicting all the accused-appellants, under Section 302 read with Section 149 of the Indian Penal Code, has also convicted accused-appellants, Bhopal Mandal and Doman Ansari, under Section 148 of the Indian Penal Code. The learned trial Court has further convicted accused-appellants, Nageshwar Mandal, Ramlal Thakur,

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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Liyqkat Ansari and Rabul Ansari, under Section 147 of the Indian Penal Code. Following their conviction under Section 302 read with Section 149 of the Indian Penal Code, all the accused-appellants have been sentenced, by order, dated 01.10.1993, to undergo imprisonment for life. No separate sentence for their conviction under Section 147 and/or under Section 148 has been passed by the learned trial Court.

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2. The case of the prosecution, as unfolded by the First Information Report, lodged by Dinesh Mandal (PW 5), may, in brief, be described as under:-

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(i) On 30.06.1980, at about 07.30 A.M., Singheshwar Mandal (since deceased), accompanied by his nephew, Dinesh Mandal, (PW 5), who is the informant of the case, went to his paddy field with plough. The informant carried with him a sack containing paddy seeds. After placing the sack at their field, the informant told his uncle (deceased Singheshwar Mandal) that he would come back from home and, accordingly, returned back to his home.

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(ii) After a short while thereafter, the informant (PW 5) heard hulla from the direction of his paddy field and saw his uncle, Singheshwar Mandal, lying on the ground and accused Doman Ansari and accused Bhopal Mandal giving blows on the person of Singheshwar Mandal by means of spears , whereas accused Liyakat Ansari, Bhola Mandal, Ramlal Thakur, Nageshwar Mandal and Rabul Mandal were assaulting Singheshwar Mandal by means of lathis.

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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(iii) On witnessing the occurrence, as the informant (PW 5) raised hulla, his co-villagers, Madhu Mandal (PW 2), Shiv Narain Mandal (PW 3), Dil Mohan Mandal (PW 4), Chhatis Mandal (not examined) and Tilakdhari Mandal (not examined), came running and all the accused persons took to their heels.

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(iv) On arriving at the place of occurrence, the informant (PW 5) found his uncle, Singheshwar Mandal, lying in a pool of blood, and, on being asked, his uncle, Singheshwar Mandal, replied by saying that Doman Ansari and Bhopal Mandal had given him blows by spears , while the other accused had assaulted him by means of lathis and his uncle also told that Doman Ansari had asked him (Singheshwar Mandal) as to why he was ploughing the field and when his uncle asserted that he would cultivate his land, Doman Ansari and Bhopal Mandal assaulted him by means of spears .

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(v) When the injured was being carried to the hospital, he died. With the said dead-body, the informant reached Chatpatiya Police Station on 30.06.1980 at about 8.45 A.M. and lodged there an information, in writing, in the form of fardbeyan ( Exhibit-6 ) and, treating the said fardbeyan as the First Information Report, Sanhaula Police Station Case No. 16 of 1980, under Sections 147/148/149/302 of the Indian Penal Code, was registered against all the accused aforementioned.

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3. During investigation, police held inquest over Singheshwar Mandal’s dead body, which was also subjected to post

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 147/148/302/149 of the Indian Penal Code against all the accused persons.

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4. At the trial, when a charge, under Section 302 read with Section 149 of the Indian Penal Code, was framed against all the accused-appellants, the accused-appellants pleaded not guilty thereto. When a charge, under Section 148 of the Indian Penal Code, was framed against accused-appellants, Doman Ansari and Bhopal Mandal, they, too, pleaded not guilty to the charges so framed. To the charge, under Section 147 of the Indian Penal Code, framed against accused-appellants, Liyakat Ansari, Ramlal Thakur, Nageshwar Mandal, Bhola Mandal, Rabul Ansari, they pleaded not guilty.

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5. In support of their case, prosecution examined altogether 7 (seven) witnesses including the doctor, who had held the post mortem examination. All the accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that they had been falsely implicated in the case, because of previous enmity and pending litigations between the parties concerned. The defence, too, adduced evidence by examining one witness.

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6. Upon finding the accused guilty of the offences

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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charged with, learned trial Court convicted them accordingly and passed sentences against them as mentioned above.

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7. Aggrieved by their conviction and the sentences passed against them, all the accused, as convicted persons, have preferred this appeal.

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8. During pendency of the present appeal, the appellant No. 4, namely, Ramlal Thakur, died and the appeal, therefore, stands abated as against the appellant, Ramlal Thakur.

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9. We have heard Mr. Krishna Mohan, learned Counsel, appearing as Amicus Curiae, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State.

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10. Before we enter into the veracity of the ocular evidence on record, let us take note of the evidence of Dr. Ambuj Kumar Choudhary (PW 6), who had, admittedly, conducted, post mortem examination, on 01.07.1980, at 12.00 A.M., on the body of Singheshwar Mandal. According to his evidence, on conducting post mortem examination, he found the following ante mortem injuries on the said deceased :-

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“(i ) Incised wound 1”x1/4”x bone deep on the left elbow posteriorly.

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(ii) Incised wound on the dorsal surface of ring finger1”x1/4”x bone deep.

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(iii) Incised wound on the left side of tibia 1”x1”xmuscle deep.

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(iv) Abrasion on the right side of the tibia.1”x1/2”.

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(v) Abrasion just below the right pattale

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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1/2”x1/2”.

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(vi) Deformity and swelling 2”x1” on the right lower leg. On dissection underlying tissues where infiltrated with blood and blood clots. On further dissection there was fracture of mid-right tibia into several fragments.

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(vii) Deformity and swelling of right half of fore-arm including wrist. On dissection underlying tissues were infiltrated with blood and blood clots. On further dissection, there was fracture of lower end of radius and ulna.

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(viii) Multiple abrasions of different shape and sizes were present on the front of chest right side. On dissection, underlying tissues were infiltrated with blood and blood clots corresponding to abrasion area. On further dissection there were fracture of 5^th to 7^th ribs right side and right lung was lacerated. Right side of the chest cavity contained blood and blood clots left lung was pale heart both chambers empty.

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(ix) On opening the abdominal cavity, lever spleen and kidney were decomposing.

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(x) On opening, the skull brain and meninges were pale.

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11 . It is also the evidence of the Doctor (PW 6) that injury nos. (i) to (iii) were caused by sharp cutting weapon and injury nos. (iv) to (vi) were caused by hard blunt substance.

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12 . The cause of the death, according to the doctor (PW 6), was due to shock and haemorrhage, which resulted from the injuries sustained by the said deceased.

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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13 . The finding of the doctor (PW 6) and/or his opinion with regard to cause of death and/or the nature of injuries sustained by the said deceased and/or the nature of weapon or weapons, which might have been used, while assaulting the said deceased, have not been disputed either by the prosecution or the defence. We, too, do not notice anything inherently, incorrect and improbable in the evidence given by the doctor (PW 6).

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14 . Situated thus, it becomes clear that the said deceased had sustained as many as three incised wounds and four injuries, by hard blunt substance, such as, lathi, the cause of death by shock and haemorrhage resulting from the injuries sustained by the said deceased.

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15. Thus, findings of the doctor (PW 6) would go to show that the said deceased had met with homicidal death .

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16. The question, however, remains whether the accused-appellants or any one of them had caused death of Singheshwar Mandal?

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17. Our quest for an answer brings us to the evidence of widow of the said deceased, Singheshwar Mandal, namely, Shashi Devi (PW 1). This witness’s evidence is that on the day of occurrence, her husband went to sow seeds in their paddy field and when her husband was in the field, she heard hulla raised from the direction of their paddy field and, on going to the field, her husband told her that on being asked by Satya Narayan Marwari,

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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Doman Ansari, Bhopal Mandal, Liyakat Ansari, Rabul Ansari, Bhola Mandal, Ramlal Thakur and Nago had assaulted him.

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18. What is, however, noticeable in the evidence of Shashi Devi, the widow of the deceased (PW 1), is that she claims that when she went to the field, no one else was present there and even the accused had fled away and that none told her, at the field, the name of the assailant.

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19. It clearly emerges from the evidence of PW 1 (Shashi Devi) that she had not herself seen the occurrence of assault to her husband and before she arrived at the place of occurrence, whoever was the assailant had left or fled away and, in fact, none was present at the paddy field, when she reached there meaning thereby that she was the first one to reach the place of occurrence and, most importantly, no one told her the names of the assailants except her husband at the said paddy field.

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20. When, however, we come to the evidence of PW 3 (Shiv Narain Mandal), we notice that according to him, while he was in his paddy field, he heard hulla and saw Singheshwar Mandal lying on the ground and the accused running away. Interestingly, however, it is in the evidence of PW 3 that when he reached the place of occurrence, he saw injured Singheshwar Mandal already lying unconscious. PW 3 does not mention about the presence of PW 1 meaning thereby that PW 3 belies the evidence of PW 1 that she had gone to the place of occurrence and as PW 3 asserts that

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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injured Singheshwar Mandal was already lying in unconscious state, the evidence given by widow of the deceased (i.e., PW 1) that her husband had told her the name of the assailants cannot be safely relied upon.

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21. At the same time, PW 1, as already discussed above, belies the presence of anyone before she arrived at the place of occurrence meaning thereby that PW 3 (Shiv Narain Mandal) has not deposed the truth when he claimed that he had reached the place of occurrence provide that PW 1 was telling the truth that when she reached the place of occurrence, no one was found there.

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22. Situated thus, it becomes clear that the evidence given by PW 1 and PW 3 are so contradictory to each other that completely destroy the credibility of each other’s evidence and no reliance can be placed on the evidence of either of them.

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23. When we turn to the evidence of PW 2 (Madhu Mandal), we find that he claims that on hulla being heard by him, he arrived at the place of occurrence and saw the assailants running away. He, however, claims that accused Doman Ansari and accused Liyakat Ansari had given blows by means of bhala (spears) on deceased Singheshwar Mandal, whereas PW 5, who is the informant and also claims to have witnessed the occurrence, asserts that the assailants, who had given blows by means of spear on Singheshwar Mandal, were accused Bhopal Mandal and

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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accused Liyakat Ansari.

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24. Thus, the evidence of PW 2 is belied by the evidence of PW 5 and, at the same time, the evidence of PW 5 is belied by evidence of PW 2. This apart, PW 2 claims that while the said deceased was given a blow by means of lathi on his head, he (deceased) was given blows by means of bhala on his neck, thigh and stomach, whereas the medical evidence on record does not mention any injury on the head of the said deceased by means of bhala or lathi nor does the medical evidence make mention of any assault on the neck, thigh or stomach of the deceased by means of bhala or any other weapon. No reliance can, therefore, be placed on the evidence of PW 2 either.

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25. So far as PW 4 (Dil Mohan Mandal) is concerned, though he (PW 4) has claimed to be an eye-witness in the sense that he (PW 4) claims that on hearing hulla, he saw the accused person assaulting the said deceased, his previous statement, made before the police, shows that he had clearly admitted, in his said statement, that he had not seen the actual assault on the said deceased meaning thereby that the claim of PW 4, at the trial, that he has witnessed the assault on the said deceased is completely false. This apart, same as PW 2, PW 4 makes no mention that injured Singheshwar Mandal made any statement naming his assailants and, thus, PW 4, too, contradicts the claim of PW 1 that her husband had told her the names of the assailants.

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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26. Reverting to the evidence of the informant PW 5, we notice that according to him, he heard hulla, when he was at his house and when he was running towards the field, he saw accused Bhopal Mandal and accused Liyakat Ansari assaulting his uncle, Singheshwar Mandal, by means of spears and the remaining five accused, namely, Doman Ansari, Nageshwar Mandal, Ramlal Thakur, Rabul Ansari and Bhola Mandal by means of lathis .

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27. We may promptly point out that the assertion of PW 5 (Dinesh Mandal) that the said deceased was assaulted by means of bhala (spears) by accused Bhopal Mandal and Liyakat Ansari has been belied by PW 2 inasmuch as PW 2 has claimed, as already indicated above, that bhala (spears) were used by accused Doman Ansari and Bhopal Mandal, while assaulting the said deceased. This apart, PW 5 claims that he went to the field with his aunt and, then, many people came there and the accused fled away, whereas evidence of his aunt (PW 1) does not even give a faint indication that PW 5 went to the place of occurrence with her. In fact, her evidence is to the contrary inasmuch as she has claimed, as we have discussed above, that she was the first one to reach the place of occurrence and when she arrived there, neither the assailants were present nor was present any witness. In fact, she has asserted, in her evidence, that no one, at the place of occurrence, told her about the names of the assailants.

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28. Though PW 5 claims that injured Singheshwar

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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Mandal had named the assailants, the evidence so given by PW 1 and PW 5 cannot be safely believed inasmuch as apart from contradicting each other, as we have already indicated above, their evidence is belied by evidence of PW 3, who claims that on his arrival at the place of occurrence, he found the injured lying already unconscious and PW 3 makes no mention that when he arrived at the place of occurrence, PW 1 and/or PW 5 were present there. In fact, none of the witnesses acknowledged the presence of PW 5 at the place of occurrence before any of them had reached the place of occurrence.

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29. What emerges from the discussion of the evidence on record, as a whole, is that the evidence, adduced by the prosecution, is nothing, but an admixture of half-truth and untruth and the truth, if any, is so inextricable mixed with falsehood that it has become impossible to disengage the truth from the falsehood. When the prosecution has itself presented before the Court multiple versions of the occurrence and when it is wholly impossible to disengage the truth from the falsehood, there can be no escape from the conclusion that the accused-appellants could not have been held guilty of the offences, which they stood charged with.

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30. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, prosecution has failed to prove its case beyond reasonable doubt and

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Patna High Court CR. APP (DB) No.432 of 1993 dt.05-05-2015

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the accused-appellants ought to have been accordingly acquitted under benefit of doubt.

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31. In the result and for the forgoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

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32. Since the accused-appellants, namely, Bhopal Mandal, Doman Ansari, Nageshwar Mandal, Liyakat Ansari and Rabul Ansari, are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.

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33. The Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the lower court record.

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(I. A. Ansari, J.)

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(Vikash Jain, J.)

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N.A.F.R.

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A.I./Chandran/-

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U T

Bhopal Mandal and Ors. v. State of Bihar

Case brief

What is this about?

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Bhopal Mandal and Ors. v. State of Bihar

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