IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.965 of 2007 ------- Against the judgment of conviction and sentence dated 19.06.2007 passed by Sri R.P.Sinha, Additional Sessions Judge, Sapaul in Sessions Trial No.89 of 2001 arising out of Raghopur P.S. Case No. 9 of 2000/G.R.No.112 of 2000. ========================================================== 1. Shivnandan Yadav @ Shiv Nandan Mandal 2. Jainandan Yadav @ Jai Nandan Mandal both are sons of Late Janak Mandal, resident of village Rampur,P.S.Raghopur,District Supaul .... .... Appellants Versus The State Of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : M/s B.Pandey, Naresh Kumar Mehta & Upendra Choubey For the Respondent : Mr. Ashwini Kumar Sinha , Addl.P.P. ========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------- ORAL JUDGMENT -------- S.K.Sharma & R.K.Mishra,JJ. Both the above appellants have filed this appeal against the judgment of conviction and order of sentence dated 19.06.2007 passed by Additional Sessions Judge, Supaul in Sessions Trial No. 89 of 2001 by which they have been convicted under Section 302 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Though they have been further convicted under Section 27 of the Arms Act but no separate sentence has been passed for the said offence. 2. Informant Ramdeo Mandal (P.W.10) gave his fardbeyan (Ext.3) to the Officer-in-Charge, Raghopur Police Station at the place of occurrence situated in the filed of Rasul Mian in village Rampur in presence of dead body of his brother Mahadeo Mandal at Noon on 4.3.2000 Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 2 2 alleging therein that he had contract of sand mines in village Dharampatti. He was selling sand after excavating it from the said sand mines. Shiv Nandan Mandal was also doing the business of sand in partnership with Rajendra Mandal and his business was being carried north-east to informant’s sand mines. It was alleged that Shiv Nandan Mandal was carrying business in clandestine manner. The informant was having all the contract papers which were required for the purpose of carrying sand business. The allegation leveled was that on 4th March, 2000 at about 10.00 A.M. two customers came on the tractors to purchase sand from the mines of the informant. Shiv Nandan Mandal forced those customers to purchase sand from his mines. When it was objected by the informant, altercation took place. In the meanwhile, Mahadeo Mandal (deceased), Shiv Dhar Mandal (P.W.9), Ramchandra Mandal (P.W.8). Indira Narayan Mandal (P.W.7), all brothers of the informant working in a nearby field came and also joined the informant in protesting the accused Shiv Nandan Mandal forcing the tractor drivers to go to his sand mines. This caused annoyance to Shiv Nandan Mandal who called his men who were hiding themselves in a nearby wheat filed. Accused Jai Nandan Mandal came out with masket. Hari Nandan with three-nut, Laxmi Mandal with lathi, Sanjay Mandal with spade, Shyam Mandal and Rajendra Mandal both with Farsa. At the behest of Shiv Nandan Mandal for killing, he himself fired first shot at Mahadeo Mandal (informant’s brother) which hit the wrist of his right fore-arm. Jai Nandan Mandal fired which hit the chest of Mahadeo Mandal who fell down and succumbed to fire arm injuries. Accused Sanjay Mandal assaulted Shiv Dhar Mandal (P.W.9) by his spade on his forehead. Rajendra Mandal and Shyam Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 3 3 Mandal assaulted Indradeo Mandal (P.W.7) by Farsa on his fore-head. Laxmi Mandal and Hari Nandan Mandal assaulted Indra Narayan Mandal by lathi and butt of three nut causing him injuries. Accused Shiv Nandan Mandal fired at informant also but he succeeded in saving himself. Umesh Singh and Pankaj Singh sons of Bindeshwari Singh of village Raghopur and Raj Kumar Chaudhary son of Bhola Choudhary of village Narayanpur and other persons were also involved in criminal activity in the offence. The fardbeyan resulted in formal F.I.R.(Ext.4) and thereafter investigation was taken up. The injured were sent for treatment and the doctor prepared injury reports of all the four injured which have been marked as Exts. 1 to 1/3. The postmortem of the deceased Mahadeo Mandal was conducted. Post mortem report has been marked as Ext.4. The Investigating Officer after completing investigation and obtaining necessary permission of superior police Officer submitted chargesheet. Cognizance was taken and case was committed to the court of sessions where charges were framed and explained to the accused persons to which they pleaded innocence and preferred to face trial. 3. The defence of the appellants was of false implication on account of enmity. The defence has denied the occurrence as alleged by the prosecution. The major cause of false implication was stated to be business rivalry and litigations which were pending before the court. 4. In order to prove its case the prosecution examined altogether 13 witnesses. They are : P.W.1 Yogendra Mandal, P.W.2 Anup Mandal, P.W.3 Saryug Pd.Mandal, P.W.4 Dr. Anzar Ahmad, Medical Officer who examined the injured, P.W.5 Bechan Mandal, P.W.6 Jageshwr Thakur, P.W.7 Inder Narayan Mandal, P.W.8 Ramchandar Mandal, P.W.9 Sheodhar Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 4 4 Mandal, P.W.10 Ramdeo Mandal (informant of the case), P.W.11 Dr.Mihir Kumar Verma, Medical Officer who conducted autopsy over the dead body of the deceased, P.W.12 Ganeshi Mandal and P.W.13 Arbind Kumar, the Investigating Officer. 5. The defence examined four witnesses and exhibited some documents in order to prove its innocence. They are :D.W.1 Md.Ali Hussain, D.W.2 Dhannu Sada, D.W.3 Md.Nuro and D.W.4 Md.Fida. The defence exhibited some documents. Cognizance order dated 27.9.1999 of 511C of 1999 has been marked as Ext.A. Formal F.I.R. of G.R. 363 of 1999 has been marked as Ext.B. Chargesheet of G.R.363 of 1999 has been marked as Ext.C and cognizance order of G.R.363 of 1999 has been marked as Ext.D. 6. After hearing learned counsel for the parties and after perusal of the entire oral and documentary evidences on record, the trial court came to the opinion that the prosecution has been able to prove the charges against both the accused persons beyond the shadow of all reasonable doubts and thus convicted and sentenced the accused persons, as stated above. 7. This court is required to see as to whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts. 8. At the outset, P.Ws. 3 and 5 are hearsay witnesses. P.Ws. 6 and 12 have not supported any part of allegation as they have been declared hostile by the prosecution. P.Ws. 7, 8 and 9 are injured witnesses who have examined on behalf of the prosecution. Incidentally they are the brothers of the informant. 9. The Injured witnesses namely, P.Ws. 7, 8 and 9 have been Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 5 5 examined by P.W.4 Dr.Anzar Ahmad. Therefore, it would be appropriate to consider the deposition of P.W.4. 10. On 4th of March, 2000, P.W.4 Anzar Ahmad was posted as Medical Officer in Primary Health Centre, Simrahi and on that day at about 1.00 P.M. examined Sheodhar Mandal ( P.W.9) and found one incised wound 2”x1/2x skin deep over right frontal region of skull. The injury was caused within 12 hours. On the same date and time, he also examined Indra Narayan Mandal and Ram Chandra Mandal ( P.Ws. 7 and 8 respectively) and injuries upon their persons caused by hard and blunt substance were also found. The injuries were caused within 12 hours. Though the persons who have assaulted them were not before the trial court, so their injuries are not required to be discussed but injuries are relevant to the extent that they also received some injuries on the alleged date and time of occurrence. Therefore, the evidentiary value of the injury reports is only to the extent that the prosecution has been able to prove the allegation that P.Ws. 7, 8 and 9 also received injuries on the date and time as given by the prosecution. 11. The postmortem of deceased Mahadeo Mandal was conducted by Dr.Mihir Kumar Verma, P.W.11 on 5.3.2000 at 6.40 A.M. He found wound of entry over left nippple size 1”x1” shape oval tattooing and charring around the wound. He also found oval, tattooing and charring wound at dorsum of right fore-arm having wound of entry size 1”x ½” and wound of exit size 1 ½x 1” tearing of right forearm muscle between wound of entry and exit. On dissection: cartridge used was found embedded in muscle just lateral to thoracic span. The cause of death as opined by the Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 6 6 doctor was cardio respiratory arrest due to shock and haemorrhage caused by fire arm injuries from short distance and the time elapse since death was around 24 hours. Therefore the prosecution version about killing of Mahadeo Mandal by use of fire arm on the date and time of occurrence has been proved and this has also not been challenged. The defence has challenged that they have been implicated on account of enmity and except that there is no other challenge regarding death of Mahadeo Mandal. 12. Learned counsel appearing for the appellants has submitted that the independent persons working at the time of occurrence in the sand mines were not examined by the Investigating Officer and further defence of the accused persons was that 10 to 15 unknown criminals demanded rangdari at the alleged time of occurrence from the informant and when he resisted, his brother Mahdeo Mandal was shot at and his other three brothers Indradeo Mandal, Ram Chandra Mandal and Sheodhar Mandal sustained injuries. The informant has taken the benefit of this unfortunate occurrence in implicating the accused persons. It has also been submitted that the prosecution case appears to be absurd because altercation has taken place with the informant and but Mahadeo Mandal was shot dead. There was no purpose of killing Mahadeo Mandal. 13. Oral evidences adduced on behalf of the prosecution can be discussed and firstly the version given by the informant is being discussed. The informant Ramdeo Mandal is P.W.10. He has stated in his deposition that on 4.3.2000 at 10.00 A.M. two tractors came for purchasing sand from the mines of the informant. In the meanwhile, Sheo Nandan Yadav reached there and asked the tractors’ drivers to take their tractors to his sand mines. It Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 7 7 was protested by the informant. Thereafter Shiv Nandan Mandal pushed and abused the informant. After Seeing this, the informant’s brother Mahadeo Mandal (deceased), Shivdhar Mandal, Ramchandra Mandal and Indar Narayan Mandal ( all injured ) came there but Shiv Nandan Mandal continued his highhandedness and called his men and when his persons namely Jainandan Mandal armed with Masket, Harinandan Mandal armed with three-nut, Jagat Mandal armed with three-nut, Laxmi Mandal armed with lathi, Sanjay Mandal with spade, Shyam Mandal armed with farsa and Rajendra Mandal armed with farsa who were hiding themselves came, Shiv Nandan Mandal exhorted for killing and he took out three-nut from his waist and fired which hit the right wrist of Mahadeo Mandal and in the meanwhile his brother Jai Nandan Mandal fired which hit in left side of chest of Mahadeo Mandal. The three brothers of the informant also sustained injuries by the rest of the accused persons. In the meantime, Shiv Nandan Mandal fired upon the informant but he saved himself. The police came at the place of occurrence, recorded the fardbeyan of the informant, read over the same to him and after the informant found the same to be correct, then he put his signature on the fardbeyan on which Sarjug Prasad Mandal, Mukhiya also signed. Blood stained soil was seized by the Sub-Inspector of Police and seizure list was prepared on which the informant singed. This witness has been cross-examined in detail by the defence and various suggestions have been given to him that due to enmity false implication has been made. Suggestion was also given that killing was by the stranger and taking the benefit of enmity from before, the appellants have been implicated in this case. The informant has denied the suggestions given and has stated Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 8 8 that on the date and time of occurrence, offence was committed as alleged in which Mahadeo Mandal has been killed. 14. Injured witnesses have deposed and they have stated that on 4th March, 2000 Mahadeo Mandal was killed and they sustained injuries. There are consistencies so far as their evidences are concerned. P.W.13, the Investigating Officer, had come at the place of occurrence and recorded the fardbeyan of the informant and had taken the statements of other witnesses. The place of occurrence was kacchi road of village Rampur Tola Dharampatti which goes towards railway bridge and towards south there was a parti paddy field of Rasool Mian where the dead body of Mahadeo Mandal was found. The Investigating Officer had found blood at the place of occurrence. Therefore, the witnesses are consistent that on the date of occurrence, Mahadeo Mandal was killed by the accused persons. 15. Learned counsel for the appellants has submitted that the inquest report is not on the record, so it caused prejudice to the defence. The Investigating Officer in paragraph 5 of his evidence has deposed that in presence of two independent witnesses namely, Jogindra Mandal and Ram Narayan Mandal, he prepared the inquest report. He has also stated that this fact has been noted in the case diary. Therefore, the evidence of Investigating Officer comes to the extent that inquest report was prepared. It has also not been challenged that the shot was on account of use of fire arm. The deceased was having fire arm injuries. This fact has been supported in the post mortem report. Therefore, in the facts of the case, it cannot bee said that non- production of the inquest report in any manner prejudiced the defence. 16. Learned counsel for the appellants has further submitted that Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 9 9 there was delay in despatching the F. I.R. In this connection he has relied upon a decision in the case of State of Rajasthan Vrs.Teja Singh and others reported in A.I.R. 2001 SC 990 and has submitted that if there is delay in sending the F.I.R. to the court then it caused prejudice to the defence and also it caused doubt on the prosecution version of the occurrence. Once a doubt is created, the benefit of the same will go in favour of the accused persons. It has also been argued that the delay cannot be condoned as it will give unnecessary latitude to the prosecution agency. So the Apex Court has decided that such cases should be disbelieved. 17. The facts of the above case were different. In that case, there were lacking of corroboration of evidence of the eye witnesses. In that case, first eye witnesses were very old having problem in eyes and as such it was difficult for him to identify the correct person. The evidence of second eye witness was also suspected because though he was available in the village but his statement was even recorded after five days. In the present case, eye witnesses are injured and the evidence of the doctor is that almost on the same date and time Mahadeo Mandal was killed and they have received injuries. The delay in dispatching the F.I.R. in each case cannot be said to be fatal. Undoubtedly, inordinate delay in despatching the F.I.R. will cause suspicion in the prosecution version but in the present case the fardbeyan was recorded at home on 4.3.2000 and it had reached the court on 6th of March, 2000. The formal F.I.R.was drawn up when the Officer-in-charge reached the police station and thereafter the F.I.R. was dispatched to the court. The F.I.R. in the present case was prepared in the afternoon of 4th March, 2000 and thereafter it was sent to court which was received there on Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 10 10 6th March, 2000. If the injured were taken to Hospital for treatment soon after the occurrence and the dead body was sent for postmortem promptly, then it cannot be said that there could be any suspicion of delay in sending the F.I.R. In a case of Dharamveer and Ors.Vrs.The state of U.P. reported in 2010(2) P.L.J.R. (SC) 20 this legal question was raised and it was observed that the prosecution case cannot be rejected merely on the ground of delay in despatching the F.,I.R. In the said case it was considered that the F.R.I. was drawn up, statements of witnesses were recorded and the dead body was sent for autopsy. So the delay was condoned. In the present case, there is no such delay because F.I.R. was drawn up and dead body was sent for postmortem after recording statements of witnesses. This shows that there was no delay which could have any doubt regarding veracity of the prosecution case. 18. Learned counsel for the appellants has submitted that non- examination of the independent witnesses and examination of related and interested witnesses has caused prejudice to the defence. In this connection, reliance has been placed to the decision in the case of State of U.P.vrs. Madan Mohan and others reported in 1989 S.C.1519. 19. This question was also considered in the case of Dharamveer and Others.Vrs.State of U.P. (supra) and it was observed that related and interested witnesses cannot be rejected only on the ground of enmity and also on the ground of non-examination of independent witnesses. In the present case, the witnesses examined are none else but the injured. 20. The defence by adducing the witnesses has raised its case Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 11 11 that there was fight between the parties and in course of said fight, Mahadeo Mandal died. This is the version of the defence and for that it has led the evidence of four witnesses. In the present case, the prosecution has come with the version that some persons were working in the sand mines but those persons were not examined by the Investigating Officer and they were not relied by the prosecution. Therefore, the prosecution case can be doubted due to non-examination of any independent witnesses. 21. The witnesses brought on the record by the prosecution are natural witnesses and no doubt, in any manner, can be raised upon their testimony, so they are worth reliance. Taking into consideration the evidences of the witnesses, we are of the opinion that the prosecution has proved the prosecution case that on 4th of March, 2000 at village Rampur, P.S.Raghopur District Supaul, Mahadeo Mandal was killed by use of fire arm by both the appellants namely, Shivnandan Mandal and Jainandan Mandal. Therefore, the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts. Accordingly, the conviction of the appellants passed by Additional Sessions Judge, Supaul under Section 302 of the Indian Penal Code and 27 of the Arms Act is hereby confirmed and the order of sentence under Section 302 of the Indian Penal Code to undergo rigorous imprisonment for life and order regarding no separate sentence under Section 27 of the Indian Arms Act are upheld. 22. In the result, there being no merit, the appeal is dismissed. One of the appellants namely, Shivnandan Yadav alias Shiv Nandan Mandal has been admitted to bail on 19.08.2008 by this Court. His bail bond is cancelled and he is directed to surrender forthwith before the court below to Patna High Court CR. APP (DB) No.965 of 2007 dt.11-07-2011 12 12 serve out the sentence. The court below is also directed to take all coercive steps to take him into custody. Another appellant Jainandan Yadav alias Jai Nandan Mandal is already in custody and he will serve out the remaining period of his sentence. ( Shyam Kishore Sharma, J. ) ( Rajendra Kumar Mishra, J.) Patna High Court, Patna Dated, the 11th July, 2011 Tahir/-(AFR)