1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal No. 151 of 1992 (P) (Against the Judgement and Order dated 30.04.1992 passed by the learned 2nd Additional Sessions Judge, Dumka, in S.C. No. 259 of 1991.) 1. Binod Chaudhary @ Indu Mandal 2. Anil Chaudhary … … Appellants Versus The State of Bihar (Now Jharkhand) … … Respondent -------- CORAM : HON’BLE MR. JUSTICE H. C. MISHRA HON’BLE MR. JUSTICE Dr. S.N.PATHAK For the Appellants : M/s. Rajeeva Sharma, Sr. Advocate Rita Kumari, Advocate Nitu Singh, Advocate For the State : M/s. Ram Prakash Singh, A.P.P. -------- C.A.V. on 28.02.2017 Pronounced on 03.04.2017 H.C. Mishra, J.:- Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the Judgement of conviction and Order of sentence dated 30.04.1992 passed by the learned 2nd Additional Sessions Judge, Dumka, in S.C. No. 259 of 1991, whereby both these appellants were convicted for the offence under Section 302 of the Indian Penal Code, and upon hearing on the point of sentence, they were sentenced to undergo rigorous imprisonment for life. 3. The case relates to triple murder. The F.I.R. was instituted on the basis of the fardbeyan of Bhola Mandal, who happens to be the father of two of the deceased, namely, Kanti Mandal and Makuni Mandal. According to the prosecution case, on 18.06.1990 in the early morning at about 3:00-4:00 A.M., both the aforesaid sons of the informant were going to bring paddy straw (Puwal) on bullock carts from another village namely, Parekesho. The informant and one Rohan Chaudhary of their village also accompanied them. Rohan Chaudhary sat along with Kanti Mandal and the informant sat along 2 with Makuni Mandal (on the two bullock carts on which they were going to bring the paddy straw, as has come in the evidence). In the way the informant got the call of the nature and he got down from the bullock cart and went towards the river for easing himself and the bullock carts proceeded. After some time he heard the alarm raised by his sons and he rushed towards the bullock carts which were going ahead, and when he reached near, he saw the appellants Binod Chaudhary @ Indu Mandal and Anil Chaudhary who are own brothers, and Suresh Chaudhary and Sarjug Mamrik. There were two to three other persons also whom the informant did not identify. Out of fear the informant concealed himself in the Palash forest. In the meantime several persons from the village Narhibaran had assembled there, but the informant kept himself concealed. In the meantime several persons of the informant’s village, i.e., Ghongha Dhekcha also reached there and upon hearing the voices of the persons of his village he came out of the forest. By that time the darkness had started clearing off, and he found four persons (named in the F.I.R.) of Narhibaran village and more than 11 persons of his own village assembled there whom he informed about the accused persons. When his son Kanti Mandal gained some consciousness he named Anil Chaudhary and Binod Chaudhary. (Though it is not stated in the FIR, but in the evidence it has come that Rohan Chaudhary was found dead on one bullock cart at the spot). Both the injured were taken to Nonihat hospital for treatment but Kanti Mandal died in the way, and before his death, he named Binod Chaudhary and Anil Chaudhary. They took the dead body of Kanti Mandal and the injured Makuni Mandal to Nonihat hospital where the police papers were demanded and thereafter they proceeded towards the Jarmundi hospital. In the meantime one police jeep arrived and took the injured Makuni Mandal to Jarmundi hospital, but in the way Makuni Mandal also died, whose dead body was brought to the police station. 3 The informant had brought the dead body of his son Kanti Mandal to the police station on the bullock cart. The informant has stated that the occurrence had taken place due to long drawn enmity between the parties, as the accused Binod Chaudhary was taken in adoption by the aunt of the informant and both the brothers were demanding partition of the family property for which there were litigations also between them. In the previous evening there was a panchayati also for partition of the family property in which both the accused were also present and there was a quarrel between Anil Chaudhary and Makuni Mandal, who had also threatened. The informant alleged that due to this long drawn enmity both the sons of the informant and Rohan Chaudhary were murdered by the accused persons. The fardbeyan of the informant to the aforesaid effect was recorded near Motihara River at 8:30 hours, on the basis of which Jarmundi P.S. Case No. 71 of 1990, corresponding to G.R. No. 537 of 1990 was instituted against four named accused persons and three to four unknown persons and investigation was taken up. After investigation the police submitted the charge-sheet only against the accused Binod Chaudhary @ Indu Mandal and Anil Chaudhary, who faced the trial. 4. After commitment of the case to the Court of Session, charge was framed against both the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial 12 witnesses were examined by the prosecution, including the informant, the I.O., and the doctor who had conducted the post-mortem examination on the dead bodies. It may be stated at this place that P.W.-2 Jaganath Chaudhary, P.W.-4 Madan Chaudhary (son of Rohan Chaudhary, the deceased), P.W.-5 Laxman Layak, P.W.-6 Upendra Chaudhary, P.W.-7 Naresh Chaudhary 4 and P.W.-8 Govind Chaudhary, had become hostile at one point or the other. 5. Though in the F.I.R. the informant has named the four accused persons without attributing any allegation of assault against them, or stating that they were armed with any weapon, as also it appears from the F.I.R., that the time of occurrence was still dark and upon seeing the accused persons the informant had concealed himself in the Palash forest and he came out only after hearing the voices of his own villagers, when the darkness had started clearing off, which makes it doubtful whether the informant was an eye witness to the occurrence, the informant Bhola Mandal, who was examined as P.W.-10 in the case has attributed the allegation of assault against the accused persons, stating that they were variously armed, claiming to be the eye witness to the occurrence. This witness has stated that the occurrence is of the night between Sunday and Monday at about 3:00-4:00 A.M. in the morning. This witness and his sons Kanti Mandal and Makuni Mandal were going on bullock carts for bringing paddy straw from Parekesho village, whereas Rohan Chaudhary was also going with them to another village. They were going on two bullock carts and when they reached near Motihara River the informant got the call of nature and he went to ease himself. Both the bullock carts proceeded further. After easing himself he heard the alarm raised by his sons, whereupon he went running and saw Binod Chaudhary, Anil Chaudhary, Suresh Chaudhary and Sarjug Mamrik and three other persons, whom he did not identify, all of them were assaulting Kanti, Makuni and Rohan. Binod and Suresh were armed with Tanga, Anil was armed with Barchi, Sarjug was armed with Tanga and the three unknown persons were also armed with Lathi and Tangi and they all were assaulting all the three persons. This witness concealed himself in the Palash bushes out of fear. Other persons of village Narhibaran and of the 5 informant’s village reached there, whereupon he came out of the bushes and went to the place of occurrence. By that time the accused persons had fled away. Rohan was found dead on one bullock cart, Makuni and Kanti were alive. This witness informed all the persons who had assembled that all the four named accused persons and three unknown persons had assaulted all the three victims by Tangi and Barchi. Kanti and Makuni were taken on a bullock cart to Nonihat hospital. Sitaram Mandal, Bichhu Khirhar, Upendra Chaudhary, Govind Chaudhary and Bhikhal Chaudhary of his village also accompanied them. In the way Kanti Mandal gained consciousness and he informed that Anil Chaudhary and Binod Chaudhary had assaulted them. Thereafter he again became unconscious and after some time he died. They reached Nonihat hospital, but the doctor asked for the police papers. Thereafter they were taking both the victims to Jarmundi, in the way police jeep arrived and Makuni was taken to Jarmundi hospital on the police jeep, but he died in the way. This witness has stated that his statement was recorded by the police near Motihara river whereupon he had put his signature, which he identified, which was earlier marked Exhibit 1/10. Other witnesses had also put their signatures. This witness has also stated that his Aunt had taken Binod Chaudhary as son in adoption and there was property dispute between them. He has stated about the panchayati held between the parties in which the threatening was also given. He has identified both the accused in the Court. This witness was put to cross-examination and in his cross- examination he has admitted that there was criminal case also between them in which he was an accused. He has also stated that village, Parekesho (where they were going to bring the paddy straw) was at a distance of about 10 to 11 miles from his village. He has also stated that when he reached the place of occurrence, he saw that the oxen were unyoked from the bullock carts, two of them were 6 tied in the wheel of one bullock cart and two of them had fled away. Rohan was lying dead on one of the bullock carts. He has stated that he and the villagers of Narhibaran had reached the place of occurrence at the same time and he had informed them about the occurrence. He has further stated that it was a moon-lit night in which he had seen the occurrence, but he did not raise any alarm and he concealed himself. This witness has also stated that he had sent Dhaneshwar and Bishwanath Chaudhary to the police station and the names of the accused persons were also informed to them. They returned back from the police station at about 6:00 to 6:30 A.M. He has also stated in his cross-examination that he had not gone to the police station, rather he had gone there in the evening of Monday. His attention was drawn towards his statements made in the fardbeyan and he has stated that he had got it recorded in the fardbeyan that Binod Chaudhary, Anil Chaudhary, Saresh Chaudhary and Sarjug Mamrik and three to four other persons were assaulting Kanti and Makuni by Lathi, Tangi and Barchi which he had seen. He has denied the suggestion that he had stated before the police that he had only seen those persons. He has also stated that he got it recorded in the fardbeyan that Kanti Mandal informed that Anil Chaudhary and Binod Chaudhary had assaulted them. He has denied the suggestion to have given false evidence due to enmity. 6. P.W.-1 is Sitaram Mandal, who has supported the prosecution case, but he had reached the place of occurrence upon knowing about it. When he reached the place of occurrence he found Kanti Mandal, Makuni Mandal and Bhola Mandal there. Rohan Chaudhary was dead on a bullock cart and Kanti Mandal and Makuni Mandal were badly injured. This witness along with others took the injured to Nonihat hospital. He was informed by Bhola Mandal that Anil Chaudhary and Binod Chaudhary alongwith some other unknown persons had assaulted the deceased and the injured by Tangi and 7 Barchi. While being taken to Nonihat hospital, Kanti Mandal also informed that Anil Chaudhary and Binod Chaudhary had assaulted them and thereafter he died. At Nonihat hospital police papers were demanded. Thereafter they were being brought to Jarmundi, in the meantime the police jeep arrived and Makuni Mandal was taken on the police jeep to Jarmundi hospital, but by the time they reached the hospital, Makuni Mandal also died. The Inquest report of the dead body of Makuni Mandal was prepared whereon this witness and Jagnath Chaudhary put their signatures which he identified and they were marked Exhibits 1 and 1/1. The inquest report of the dead body of Kanti Mandal was also prepared on which this witness and Prabhakar Manjhi put their signatures and on identification they were marked Exhibits 1/2 and 1/3. This witness has also stated about the panchayati in the previous evening in which threatening was given by Anil Chaudhary to Makuni Mandal. This witness has identified both the accused in the Court. In his cross-examination this witness has stated that when he reached the police station his statement was recorded by the police which was read over to him and he had put his signature on that. He has stated that the inquest reports were prepared at the police station. 7. P.W.-3 is Dhaneshwar Layak, who also deposed that when he went to the place of occurrence he saw Kanti Mandal and Makuni Mandal in injured condition and he saw Rohan Chaudhary dead on the bullock cart. He has stated that Bhola Chaudhary had informed him that Binod Chaudhary and Anil Chaudhary had assaulted Makuni, Kanti and Rohan by Tangi and Barchi. 8. P.W.-6 Upendra Chaudhary, had also gone to the place of occurrence upon getting the information about the occurrence and he saw Kanti Mandal and Makuni Mandal in the injured condition and Rohan Chaudhary dead on the bullock cart. Binod Mandal informed them that Anil Chaudhary and Binod Chaudhary had assaulted all the 8 three. Kanti and Makuni were being brought to hospital but they died. Kanti did not inform anything and at this point this witness was declared hostile by the prosecution. 9. P.W.-9 is Prabhakar Manjhi, who is a witness to the inquest report of the dead body of Rohan Chaudhary which was prepared in Narhibaran forest, upon which this witness and Madan Chaudhary had put their signatures. He has identified the signatures which were earlier marked as Exhibits 1/4 and 1/5. He is also the witness to the inquest report of the dead body of Kanti Mandal and he has identified the signatures of himself and the other witnesses. This witness has stated that Bhola Mandal had given his fardbeyan at the police station in his presence whereupon also he and other witnesses had put their signatures which he had identified and which were marked as Exhibits 1/6 to 1/10. 10. The other important witness in this case is P.W.-4 Madan Chaudhary, son of one of the deceased Rohan Chaudhary. This witness has stated that upon getting the information he went to the place of occurrence along with his villagers, including the informant Bhola Mandal and Indu (accused appellant). At the place of occurrence they found Kanti Mandal, Makuni Mandal lying in the pool of blood. They could not speak anything nor could make any gesture. The dead body of his father was lying on the bullock cart. This witness has clearly stated that no one informed them as to who had assaulted the victims. He is also a witness to the inquest report of the dead body of his father and he has identified his signature and the signature of the witness Prabharkar Manjhi, which were marked Exhibits. This witness was declared hostile at this point and in his cross-examination by the prosecution he had denied the suggestion to have given the statement before the police that Bhola Chaudhary had informed him that Anil Chaudhary and Binod Chaudhary had assaulted his father, Kanti and Makuni by Barchi and Tanga. He has 9 also denied the suggestion to have given the statement before the police that Kanti Mandal had informed that Binod Mandal (sic., should be Chaudhary) and Anil Mandal (sic., should be Chaudhary) had assaulted them. In his cross-examination by the defence this witness has clarified that Indu Mandal, who is the accused, had also gone to the place of occurrence along with them. 11. P.W.-2 Jagnath Chaudhary and P.W.-7 Naresh Chaudhary are the other hostile witnesses who have stated that when they went to the place of occurrence they saw Makuni Mandal and Kanti Mandal injured in pool of blood and Rohan Chaudhary was dead. Makuni and Kanti were not in a position to speak and no one informed them as to who had assaulted them. Similarly P.W.-8 Govind Chaudhary is also a hostile witness, who has deposed that both the injured were unconscious and neither Bhola, nor Kanti informed them as to who had assaulted them. 12. P.W.-11 is Dr. Ramanand Sah, who had conducted the post- mortem examinations on the dead bodies of all the three deceased on 18.6.1990. On the dead body of Makuni Mandal he found the following ante-mortem injuries:- i) Incised wound 4” x 1/2” x bone deep over the left parietal region of the scalp. ii) Incised wound 4” x ½" x bone deep over left side of lambdoid region of the scalp. iii) Incised wound 2” x ½" x bone beep over the mid of the scalp. On dissection there was fracture of the left parietal bone about 4” long, fracture of occipital bone about 3 ½” long and fracture of occipital bone 2” long. On further dissection connecting brains and maninges were found lacerated and blood clot was present in the cranium. 10 He has stated that the death was caused due to shock and hemorrhage as a result of injuries No. (i), (ii) and (iii), either singularly or collectively, which were sufficient in ordinary course of nature to cause the death. He has identified the post-mortem report of Makuni Mandal to be in his pen and signature which was marked Exhibit-2. On the dead body of Kanti Mandal he had found following ante- mortem injuries:- i) Incised wound 2”x ½" x 1/8” over the temporal region of scalp on left side, ii) Incised would 4” x ½" x bone deep over the right side of the scalp. iii) Incised would 2” x ½" x ¼" over the forehead. On dissection there was fracture on the left temporal bone about 2” long. Fracture of right parietal bone 4” long and fracture of frontal bone 2” long. On further dissection there was laceration of connecting brain and maninges and blood clots were found present in the cranium. iv) Lacerated wound 2” x 1” x bone deep over right side of face with fracture of right mandible. v) Lacerated wound 2” X ½" x ¼" over right forearm in the middle with fracture of radius and ulna. He has stated that the death was caused due to assault and hemorrhage as a result of injuries No. (i), (ii) and (iii), either singularly or collectively, which were sufficient to cause death in ordinary course of nature. He has identified the post-mortem report of Kanti Mandal to be in his pen and signature which was marked Exhibit-2/1. On the dead body of Rohan Chaudhary he had found the following ante-mortem injuries:- 11 i) Incised wound 4” x ½" x bone deep over the right temporal region of the scalp. On dissection there was fracture of right temporal bone 4” long. On further dissection connecting brain and maninges were found lacerated and blood clots were found present in the cranium. ii) Diffused swelling over the front of chest. On dissection there was fracture of 2nd to 4th ribs of right side and 2nd and 3rd ribs of left side. On further dissection, connecting pleura and lungs were found lacerated and blood clots were found in the chest cavity. He has stated that the death was due to shock and hemorrhage as a result of injury No. (i) and (ii), either one of which was sufficient to cause death in the ordinary course of nature. He has identified the post-mortem report of Rohan Chaudhary to be in his pen and signature which was marked Ext-2/2. There is nothing of much importance in his cross-examination. 13. P.W.-12 is Bharat Lal Tiwari, who is the Investigating Officer of the case. He has stated that at the police station at about 5:15 A.M. he got the news about the occurrence which he entered into the station diary being entry No. 349 dated 18.06.90 which he has proved and marked Exhibit-3. Thereafter, he went towards the place of occurrence where he reached at 6:45 A.M. He has given the description of the place of occurrence and has stated that he had found blood stains there and the dead body of Rohan Chaudhary was on a bullock cart. He collected the blood stained earth and prepared the seizure list and he also prepared the inquest report of the dead body of the deceased Rohan Chaudhary which he identified to be in his pen and signature and also bearing the signatures of the witnesses which was marked Exhibit-4. This witness has stated that he was informed at the place of occurrence that two other injured Makuni Mandal and Kanti Mandal were taken to hospital, as such he 12 sent the dead body of Rohan Chaudhary to the police station through police constable and followed the other injured. At about 8:30 A.M., when he reached near Motihara River he recorded the fardbeyan of Bhola Mandal. He has identified the fardbeyan and the formal F.I.R. to be in his pen and signature which were marked Exhibit-5 and Exhibit-6 respectively. This witness has stated that while he was recording the fardbeyan of Bhola Mandal, he sent the injured Makuni Mandal to Jarmundi hospital on police jeep, but he also died in the way. Thereafter they came to police station at 9:20 A.M., and prepared the inquest reports of the dead bodies of Makuni Mandal and Kanti Mandal, which were marked Exhibits 4/1 and 4/2 respectively. This witness has stated about the investigations made by him and his attention was also drawn towards the statements made before him by the hostile witnesses. In his cross- examination he has stated that it is not a fact that the witness Dhaneshwar Layak had given any information at the police station. He has also stated that he had not recorded the statement of Madan Choudhary, who is the son of the deceased Rohan Choudhary, and was a witness to the inquest report. He had also not recorded the statement of any villager of Narhibaran village and he had not recorded the fardbeyan of Sitaram Mandal. This witness has also stated that Bhola Mandal had not stated in his fardbeyan that he had seen Dilip Chaudhary, Anil Chaudhary, Suresh Chaudhary, Sarjug Mamrik and other three to four persons assaulting Kanti and Makuni by Lathi, Tanga and Barchi, rather he had stated that till he heard the voice of the villagers of Narhibaran village, he was concealing himself in the bushes and he came out only after hearing the voices of his villagers. He had not stated in the fardbeyan that his son Kanti Mandal had named Binod Chaudhary and Anil Chaudhary nor had he stated that his son had informed that these accused persons had assaulted them. 13 14. In their statements recorded under Section 313 of the Cr.P.C. the accused persons have stated that they have been falsely implicated in this case due to land disputes. The defence has also proved the certified copies of the judgements and decrees relating to the land dispute between the parties, as also the map of the village which were marked Exhibits-A series, B-series and C, respectively. 15. Learned counsel for the appellants has submitted that both these accused have been falsely implicated in this case due to previous enmity for the