PAPPU MANDAL @ HIRALAL MANDAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) These Cr. Appeals have been directed against the judgment of conviction and order of sentence dated 18.03.2005 and 21.03.2005 respectively passed by the 7th Addl. Sessions Judge, F.T.C.-IV, Godda in connection with S.C.No.37 of 2004/38 of 2004, corresponding to G.R.No.674/2003, arising out of Pathargama P.S. Case No. 94/2003 whereby the appellants have been held guilty for the offences punishable under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code and to pay fine of Rs.5,000/- each, in default of payment of fine each of the appellants shall further undergo R.I. for three months. Under Section 27 of the Arms Act, imprisonment for one year. The sentences so passed were directed to run concurrently.

(2.) The facts appearing from the fardbayan of Rekha Devi are that between intervening night on 1/ 2 July, 2003 at about 2 a.m. the informant woke up after hearing some noise. She had noticed presence of 6-7 miscreants in the house and they were armed with gun, pistol, lathi etc. The informant apprehending danger made her husband woke up but till then appellant-Pappu Mandal @ Hiralal Mandal and accused Mukesh Mandal opened fire from their gun causing injury to Jugal Mandal (husband of the informant). It is disclosed that Jugal Mandal in order to save himself, ran towards northern door of the house to escape but he was chased by the miscreants, who are named in the F.I.R. Further occurrence took place outside the house in the field of Sildhar Choudhary and husband of the informant was done to death. The informant tried to save her husband but she was assaulted by accused Jaldhar Mandal by means of butt of the gun. On 'Hulla' people of the locality assembled, who are also named in the F.I.R. At the time, the informant was going outside the house to save her husband, she had noticed presence of other accused including Usha Devi and Jira Devi. These two ladies had pulled 'Sari' of the informant as a result she fell down. Seeing the villagers coming towards the place of occurrence, the accused persons fled away. The reason behind the occurrence was old dispute relating to village rasta. On the basis of fardbayan of Rekha Devi, recorded on 02.07.2003 at 9:40 hours at her resident, Pathargama P.S. Case No. 94/2003, under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act against the appellants and their associates, who are named in the F.I.R., was registered. The investigation was carried out. During investigation attendance of appellants and accused persons namely, Parmeshwar Rai, Laddu Mandal and Sahayam Mandal was secured. Since remaining accused remained absconding, charge-sheet against the appellants and aforesaid three accused was submitted. Accordingly cognizance was taken and the case of the appellants was committed to the court of Sessions and registered as S.C.No.37 of 2004/38 of 2004. Charges under Sections 302/34 of the I.P.C. and 27 of the Arms Act against the appellants and their associates were framed to which they pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined altogether 16 witnesses whereas Santona Haldar has been examined as D.W.1 on behalf of the appellants. Gugal Mandal (P.W.1) who had seen part of the occurrence. Kundan Mandal (P.W.12) happens to be son of the deceased, Rekha Devi (P.W.14) is the informant and wife of deceased and they are eye-witnesses to the occurrence. Jai Prakash Mandal (P.W.2) also reached to the place of occurrence after hearing sound of firing but he was threatened by the miscreants after which he returned back. Foto Mandal (P.W.3) had seen the appellants and their associates fleeing from the place of occurrence. He had seen dead body of Jugal Mandal lying near hand pump in front of the house. Pappu Mandal (P.W.4) is a hearsay witness. Dinesh Mandal (P.W.5) had also reached to the place after hearing sound of firing. He had also seen the appellants and their associates present in the field of Sildhar Choudhary. He had also seen Jugal Mandal lying on the cot. Ajay Mandal (P.W.6), Bhairo Mandal (P.W.7) and Magan Yadav (P.W.8) are the witnesses, who had reached to the place of occurrence after assault was over. Vikash Mandal (P.W.9) and Sunil Mandal (P.W.10) are the witnesses to the seizure list and they have proved their signatures Ext. 1 to 1/b respectively. Ashok kumar Mandal (P.W.11) and Meena Devi (P.W.13) have turned hostile and they have not supported the prosecution case. Kundan Mandal (P.W.12) is the son of deceased and he has supported the prosecution case. Rekha Devi (P.W.14) is the informant and she has supported her contention made in the fardbayan. Dr. Shobhan Murmu (P.W.15) had conducted postmortem examination on the dead body of Jugal Mandal and she has proved postmortem report (Ext.3). Vishnu Kumar Yadav (P.W.16) is the formal witness and he has proved fardbayan (Ext.4), formal F.I.R. (Ext.5) and signature of Officer-in-Charge of Pathargama Police Station on the seizure list (Ext.6 and 6/a).

(3.) The appellants have assailed the impugned judgment on the ground that P.W.12 is a child witness. He was sleeping and he had not seen the occurrence. P.W.14, who is the informant and wife of deceased, has tried to project herself as eye-witnesses. As a matter of fact P.W.14 is not fully and wholly reliable witness. She has failed to describe the entire episode, no occurrence had taken place inside the house of deceased. The admitted evidence available on record is that the deceased was having criminal antecedent, he was an accused in a case of dacoity and arms act. The witnesses, who reached to the place of occurrence after hearing gun sound, had seen the deceased lying in the field of Sildhar Choudhary. The possibility cannot be ruled out that the deceased might have been killed by some criminals outside the house because he was found lying in the field of Sildhar Choudhary and from there dead body was picked up and brought to the house of informant. There are vital contradictions in the statement of P.W.12 and P.W.14. P.W. 12 says that after shots were fired on the deceased, he along with his mother (P.W.14) went outside the house to inform the villagers and relatives but this contention of P.W.12 does not find support from evidence of P.W. 14. Non-examination of the I.O. is fatal to the prosecution because place of occurrence has not been proved by the witnesses. The informant has stated that her husband had sustained only gun shot injury on his person but postmortem report (Ext.3) indicates that deceased was also having incised wound on his person. How the deceased sustained incised wound, has not been explained by any of the witness including so-called eye-witnesses P.W. 12 and P.W.14. Furthermore the informant has stated that bullet fired on the face of deceased disappeared after creating exit wound in the skull but no such injury was noticed by the Doctor during postmortem examination. Therefore the manner of occurrence as described by P.W.12 does not find support from the postmortem report (Ext.3). Appellant Pappu Mandal @ Hiralal Mandal has taken plea of alibi and he has examined D.W.1 and proved the certificate as Ext.D and attendance register (Ext.E). D.W.1 has clearly stated that Pappu Mandal was working as night guard in the school and he was all along present on his duty in the night shift from 01.07.2003 to 25.08.2003. Finding of trial court and the reasoning for disbelieving D.W.1 is not tenable. Incorrect finding has been given. As a matter of fact, appellant-Pappu Mandal was all along attending his duty till 25.08.2003 and after knowing the fact that his appearance is required, he has surrendered on 29.08.2003 and remanded to jail custody. It is not a case that Pappu Mandal was remanded to jail custody on 10th July, 2003 and again non-examination of the I.O. Has become fatal because it could not be asked as to what investigation was done on the plea of alibi taken by the appellant-Pappu Mandal. Old enmity prevailing between the parties is admitted. Prior to institution of present case, mother of appellant-Pappu Mandal had lodged a case in which the deceased was figuring as accused. In such case of old enmity implication of more and more person of other side is always expected and that has been done in the case at hand. The informant has named so many persons including appellant-Pappu Mandal, who was not present at the scene of occurrence. There are vital contradictions in the statement of other witnesses too. The witnesses who have been claiming that they had reached to the place of occurrence after hearing sound of firing have given contradictory description of the place of occurrence, the place where the deceased was lying, the place where the appellants were standing and also contradiction is appearing in the names of accused persons present at the scene of occurrence. Somebody has stated that they had seen the deceased lying in the field of Sildhar Choudhary, somebody has stated that they had seen the dead body of Jugal Mandal lying in front of his house near 'Chapa Kal' whereas some witnesses have stated that they had seen dead body of Jugal Mandal lying on a cot inside the house. On the point of alibi learned Counsel has referred the statement of Bhairo Mandal (P.W.7), who has stated that Pappu Mandal @ Hira lal Mandal was working in West Bengal and that contention of P.W.7 find support from the evidence of D.W.1 and the documents Ext.D and Ext.E. Bhairo Mandal (P.W.7) is an independent witness and he has not been declared hostile. Last but not the least, it is submitted that altogether 5 accused persons including appellants were charge-sheeted and they were put on trial but out of them three have been acquitted from all the charges. Remaining accused, who are named in the F.I.R., have not been charge-sheeted till the date. What happened to those accused persons remain unknown due to non-examination of the I.O. The impugned judgment is highly erroneous, based on misappropriation of facts and evidence and therefore it is liable to be set aside.