From bare perusal of the ratio decided in the above judgments, it would appear that there cannot be any manner of doubt that Section 157 of the Code of Criminal Procedure (in short "the Code") requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possible improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-dated or ante-timed or investigation is not fair. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' as mentioned in Section 157 of the Code does not mean that prosecution is required to explain the delay of every hour in sending the FIR to the Magistrate. Undoubtedly, the unexplained inordinate delay in sending the copy of the FIR to the Magistrate may affect the prosecution case adversely or an adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there was every chance of manipulation in the FIR by roping innocent person as accused. In the case Ramesh Babu Rao Devaskar v. State of Maharashtra MANU/SC/8026/2007 : (2007) 13 SCC 501: (AIR 2007 SC (Supp) 1606) wherein there had been a delay of four days in sending the copy of the FIR to the Uaqa Magistrate and no satisfactory explanation could be furnished for such inordinate delay, the Hon'ble Supreme Court relying upon earlier judgments State of Rajasthan v. Teja Singh MANU/SC/0085/2001 : (2001) 3 SCC 147 : (AIR 2001 SC 990) and Jagdish Murav v. State of U.P. MANU/SC/8439/2006 : (2006) 12 SCC 626 held that the unexplaned inordinate delay may adversely affect the prosecution case. However, it would depend upon the facts of each case. In the instant case also, from the endorsement made on the FIR, there appears to be a delay of 4 days in placing the FIR before the Magistrate, but this lacuna would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution has produced reliable evidence to prove the guilt of the accused persons.
IN THE HIGH COURT OF JHARKHAND
Criminal Appeal (D.B.) Nos. 567, 719, 763, 764, 582 and 570 of 2005
Decided On: 03.02.2016
Nageshwar Mandal
Vs.
State of Jharkhand and Ors.
Vs.
State of Jharkhand and Ors.
Coram:Rakesh Ranjan Prasad and Ravi Nath Verma, JJ.
Citation: 2016 CRLJ 4283 JHAR
1. The above five appeals separately preferred by the appellants against the judgment of conviction dated 5-5-2005 and order of sentence dated 6-5-2005 have been heard together and are being disposed of by this common judgment. There are altogether 13 appellants but as they have been convicted differently under the provisions of the Indian Penal Code, it would be convenient and proper to deal with their conviction and sentences appeal wise.
Cri. Appeal (D.B.) Nos. 567 of 2005, 719 of 2005, 763 of 2005 and 764 of 2005
The four appellants namely Nageshwar Mandal, Nilkanth Mandal, Dayanand Mandal and Sanjay Mandal of the above appeals have been convicted for the offence under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,000/-each with default clause and also convicted for the offence under Section 148 of Indian Penal Code and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 1,000/- each with default clause and both the sentences have been directed to run concurrently.
Criminal Appeal (D.B.) No. 582 of 2005
The nine appellants of this appeal namely Anandi Mandal, Ranjeet Mandal, Rajiv Mandal, Ambika Mandal, Upendra Mandal alias Umesh Mandal, son of Baikunth Mandal, Muneshwar Mandal alias Nuneshwar Mandal, Sashisekhar Mandal alias Kartik Mandal, Suresh Mandal and Umesh Mandal son of Nageshwar Mandal have convicted for the offence under Sections 325/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 1,000/- each with default clause. One of the appellant Anandi Mandal has also been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 1,000/- with default clause and sentences have been directed to run concurrently.
Criminal Revision No. 570 of 2005
The informant of the case Jyotsna Mandal has preferred the revision for enhancement of the sentences awarded to the opposite party Nos. 2 to 14 of revision petition i.e. all the above appellants by the Court below in Sessions Trial No. 129 of 2003.
The background facts, as projected by the prosecution in the first information report, in a nutshell, are as follows:-- The fardbeyan of the injured-informant Jyotsna Mandal was recorded at Sadar Hospital, Deoghar by Sub-Inspector of Police R.B. Paswan on 12-8-2002 at 7.30 p.m with the allegation that at about 5:30 p.m., when her father and brother Jan Mohan Mandal went to see the field, she also followed them and at that time, the driver of tractor Subodh Singh was ploughing the field. They were watching their field, when she saw Sanjay Mandal, Amar Mandal, Dayanand Mandal, Ambik Mandal alias Karu Mandal armed with swords, Jagdish Mandal, Umesh Mandal, Sashisekhar Mandal alias Kartik Mandal, Rajiv Mandal, Baikunth Mandal armed with rod, Nageshwar Mandal and Nilkanth Mandal armed with Farsa, Suresh Mandal armed with Bhala, Anandi Mandal armed with pistol, Ranjit Mandal having Barchhi, Kameshwaw Mandal having Katari in his hand, Upendra Mandal armed with Sabal and Muneshwar Mandal by forming unlawful assembly came there and surrounded her father. Baikunth Mandal and Nageshwar Mandal ordered to kill her father. Whereafter Sanjay Mandal, Amar Mandal and Dayanand Mandal assaulted her father with Swords, Nageshwar Mandal and Jagdish Mandal with an intention to kill her father assaulted him on his head with Farsa and rod respectively. After sustaining injury, her father fell down and became unconscious. Her brother Jan Mohan Mandal when tried to save his father, Suresh Mandal, Umesh Mandal, Sashishekhar alias Kartik Mandal, Ranjit Mandal, Ambik Mandal, Rajiv Mandal, Baikunth Mandal and Kameshwar Mandal armed with sword and iron rod assaulted Jan Mohan Mandal causing several injuries. Her brother became unconscious and fell down. The informant when raised alarm and started weeping, Upendra Mandal and Nilkanth Mandal caught hold of her hand and assaulted her with iron rod causing fracture in her left hand and she also received injuries in her waist. Hearing alarm, her two sisters namely Sandhya Mandal and Bibha Mandal reached there but they were also assaulted by Upendra Mandal with rod causing injuries in their hands and legs. Seeing the villagers coming towards the place of occurrence, one of the accused Anandi Mandal fired from his pistol. Thereafter all the accused persons retreated towards the house of Nageshwar Mandal. Her another brother Jag Mohan Mandal and Shivram Mandal also came to the place of occurrence after hearing alarm. Whereafter with the help of the villagers, her father and injured brother Jan Mohan Mandal were brought to the hospital but her father was declared dead by the attending doctors. The reason as disclosed by the informant was the pendency of a case and land dispute between the parties.
2. On the basis of fardbeyan of the informant, Jasidih (Kunda) P.S. Case No. 117 of 2002 was instituted on 12-8-2002 under Sections 147, 148, 149, 341, 323, 324, 325, 307, 302 and 447 of the Indian Penal Code and also under Section 27 of the Arms Act. On completion of the investigation, the police charge-sheeted all the 13 accused persons for trial. Whereafter the cognizance of offence was taken and the case was committed to the Court of session. The Court concerned framed the charges against all the accused persons under Section 302/149, 148 and 307/149 of IPC. A separate charge was also framed against one of the accused Anandi Mandal under Section 27 of the Arms Act. After completion of the prosecution evidences, the statement of the accused persons were recorded under Section 313 of the Code of Criminal procedure. The appellants in their statements had only pleaded as not guilty but the defence put by them was that they have been falsely implicated in this case due to previous land dispute between the parties.
3. In course of trial, the prosecution examined altogether to witnesses. Of them, Dr. Sunil Kumar Sahi has been examined as P.W. 1, P.W. 2 Dr. Chandreshwar Kumar Sinha, P.W. 3 Dilip Mandal, P.W. 4 Nago Das, P.W. 5 Brahmchari Shivraj, P.W. 6 Mukund Bihari Mandal, P.W. 7 Subodh Kumar Singh, P.W. 8 Arjun Mandal, P.W. 9 Jag Mohan Mandal, brother of the informant, P.W. 10-Bibha Mandal, sister of the informant, P.W. 11-Sandhya Mandal another sister of the informant, P.W. 12 Jyotsna Mandal, the informant, P.W. 13 Dr. Raman Kumar, P.W. 14 Manmohan Mandal, Ras Bihari Paswan I.O. has been examined as P.W. 15 and Dr. Narendra Kumar Sahu as P.W. 16.
The defence has also examined two witnesses; D.W. 1-Shatrughan Singh, an advocate Clerk on whose attestation, few land receipts were marked as Ext. 'X' series. Dr. Sunil Kumar Bijpuria was examined as D.W. 2 and on his evidence, the injury report of one of the appellant Sanjay Mandal was marked as Ext. 'G/1'. Some documents produced on behalf of defence were marked as Ext. - A/1, B/1, C/1. C/1a, D/1 and E/1 without any objection.
4. The following document were marked as exhibits on behalf of prosecution:
"(i) Exts. 1 to 1/1 - Injury report of Jyotsna Mandal including findings given on x-ray report.
(ii) Exts. 2 to 2/1 - Injury report of Jan Mohan Mandal along with other reports.
(iii) Ext. 3 - Injury report of Sandhya Mandal.
(iv) Ext. 4 - Inquest report of deceased Harihar Mandal.
(v) Exts. 5 and 5/1 - Signatures of Jag Mohan Mandal and Jyotsna Mandal on fardbeyan respectively.
(vi) Ext. 6 - Post-mortem report of deceased Harihar Mandal.
(vii) Ext. 7 - Fardbeyan.
(viii) Exts. 8 and 9 - Endorsement on fardbeyan.
(ix) Ext. 10 Series are the requisitions for injury report of Sandhya Mandal, Jan Mohan Mandal and Jyotsna Mandal."
5. The doctor (P.W. 13) who had conducted autopsy on the dead body of the deceased Harihar Mandal had found the following injuries on the body of the deceased:
"(i) Five sharp cuts 1" to 3" long x 1/2 x 1/4 on scalp three in posterior part, one in middle and one in right side.
(ii) Abrasion 2" x 1" on left side of abdomen in upper part with bruise in left lower axilla 3" x 1" size.
(iii) One sharp cut 3" x 1/2" x 1/4" on right side of neck.
(iv) One sharp cut 2" x 1/2 x 1/4" on posterior part of right elbow.
(v) One linear abrasion on right lumbar region 6" long.
On dissection of skull - there is linear fracture 6" long in sagital line with extra dural haematoma and compression of brain.
On dissection of abdomen - There was blood in peritoneal cavity with rupture of spleen.
Viscera were pale and stomach empty.
On dissection of chest - Heart was empty and lungs pale.
According to the doctor, the death was due to haemorrhage and injury Nos. 1 and 3 to 5 were caused by sharp cutting weapon such as Talwar (sword) and Farsa and were sufficient to cause death. Injury No. 2 was caused by hard and blunt substance such as rod."
6. The other two injured Jyotsna Mandal the informant and Jan Mohan Mandal were examined by Dr. Sunil Kumar Sahi (P.W. 1) of Sadar Hospital, Deoghar and he found the following injuries on the body of the informant Jyotsana Mandal:
"(i) Swelling 4" x 2" around left arm near elbow joint.
(ii) Body ache but no sign of injuries - both the injuries were found to be caused by hard and blunt object like iron rod.
In the opinion of the doctor, injury No. 2 was simple, the opinion regarding injury No. 1 was reserved and the injured was advised for x-ray. On the basis of x-ray plate and report, injury No. 1 was found to be grievous in nature showing fracture of shaft Humerus lower 1/3rd left side.
This witness after examining injured Jan Mohan Mandal found him in semi-conscious stage and also found injuries and after providing first-aid referred his case to Bhagalpur Medical College."
7. Dr. Chandreshwar Prasad Sinha (P.W. 2), the Medical Officer of Sadar Hospital at Deoghar had examined Sandhya Mandal another sister on the same day at 9.45 p.m.and had found only swelling in the thumb of right hand and advised her for x-ray but the witness has testified that her x-ray plate and report were never produced before him.
8. Dr. Narendra Sahu (P.W. 16), the Medical Officer of New Florence Nursing Home, Deoghar, had examined the injured Jan Mohan Mandal on the basis of the outdoor slip No. 988 dated 12-8-2002 issued by the Medical Officer, Sadar Hospital, Deoghar on 14-8-2002 and the said injured remained under his treatment from 14th August, 2002 to 7th October, 2002 and on the date of admission, he had found the following injuries:--
The general condition of the body was poor and was looking pale.
(i) Fracture tibia left side stitched wound over the skin.The witness had advised the injured to check and consult in future time to time and the injured was lastly examined by this witness on 25-04-2003. The witness during cross-examination has stated that since the injured was not referred to his hospital, he had never sent his injury report to Sadar Hospital, Deoghar. The witness during cross-examination has lastly said that the patient was fit for discharge to his satisfaction but it appears from the evidence of the prosecution witnesses that this injured Jan Mohan Mandal died during treatment on 20-7-2003. So, the injured Jan Mohan Mandal could not be examined in Court."
(ii) One lacerated wound which is also stitched and infected.
(iii) Compound fracture dislocation of proximal inter phalangeal joint right middle finger, stitches were present.
(iv) Fracture in middle phalanx and proximal phalanx, left little finger.
(v) Stitched wound right forearm ulna border.
(vi) Fracture supra-condyllar right femur with gross swelling on right knee, distal neuro vascular deficit was nil.
(vii) Parallel lines multiple bruise on the back. Tenderness was also present.
9. The Additional Sessions Judge, F.T.C.-IV, Deoghar on the basis of evidences placed on record by the prosecution found that the prosecution has proved the case beyond reasonable doubt and out of 13 accused, the Court below found Nageshwar Mandal, Sanjay Mandal, Dayanand Mandal and Nilkanth Mandal as guilty of committing murder of deceased Harihar Mandal in furtherance of their common object forming unlawful assembly. The other nine accused persons were found guilty under Section 325/149 of IPC for the offence of causing injury in furtherance of their common objecty forming unlawful assembly and all the above appellants were, accordingly, convicted and sentenced. One of the accused Anandi Mandal was also found guilty and convicted under the Arms Act as indicated above.
10. Before us, Mr. Kashyap learned senior counsel appearing for the appellants assailed the impugned judgment of conviction and sentence basically on the ground that the learned trial Court has seriously erred in appreciating the evidences on record in right perspective and arriving at its finding of guilt against the appellants ignoring numerous vital contradictions in the evidence of witnesses and also ignoring the fact that P.W. 11 in her evidence has herself testified that she has weak eye-sight and cannot see beyond three metres but this witness has projected herself as an eye-witness to the occurrence. Mr. Kashyap further seriously contended that the Court below also failed to consider that no independent witness has been examined and the most important witness Jyotsna Mandal the informant (P.W. 12) has given a contradictory exaggerated version of the occurrence. It was also submitted that the ocular evidence given by the informant (P.W. 12) is not in consonance with the injuries as found in the injury reports and even her evidence is not wholly reliable or trustworthy upon she being interested witness and that prior to the instant case, another case was also filed at her instance against the accused persons.
Learned senior counsel relying upon the cases Thanedar Singh v. State of M.P. MANU/SC/0686/2001 : (2002) 1 SCC 487 : (AIR 2002 SC 175) and Shivlal v. State of Chhattisgarh MANU/SC/1106/2011 : (2011) 9 SCC 561 : (AIR 2012 SC 280) contended that adverse inference can be drawn as there was a delay of four days in sending the first information report to the Court and this casts a serious doubt on the correctness of the FIR and the trial Court has nowhere recorded any specific finding that the prosecution failed to clear the doubt regarding the delay in sending the FIR and even there is no proper explanation to that effect. This would support the defence version that the FIR would have probably come into existence much later. It was further contended that the Court below also failed to appreciate that in the first information report, there was allegation of assault against Jagdish Mandal, Baikunth Mandal and Kameshwar Mandal but they were not even charge-sheeted by the police and with almost similar allegation, the other accused persons have been convicted for the offence under Section 325 read with Section 149 of IPC. Lastly it was contended that the learned trial Court erred in not considering the possibility of false implication of the appellants by the informant on account of admitted previous enmity due to land dispute.
11. Contrary to the above submissions, the learned counsel for the State, on the other hand, strongly defended the impugned judgment of conviction and sentence as recorded by the trial Court and contended that P.W. 12 the informant is a reliable and trustworthy witness and merely because she and other eye-witnesses are members of the family of the deceased, cannot be a ground to declare them as not trustworthy and it is totally misconceived that P.W. 12 and other eye-witnesses were not present at the place of occurrence and had no occasion to see the entire occurrence. They being the natural witnesses, there is no reason why their testimony should not be relied upon. As regard to the submission of learned senior counsel for the appellants that there was delay in sending the first information report, learned counsel for the State submitted that every delay in sending the report to the Court would not necessarily lead to infer that FIR has not been lodged at the time stated or is ante-dated and any lapse on the part of the I.O., would not confer any benefit on accused and the said delay shall be examined with other contemporaneous circumstances involved in the case.
12. Now, first referring to the contention raised on behalf of the appellants regarding the purported delay in transmission of the FIR to the Court and also the submission that the delay in forwarding the same to the Magistrate would lead to the conclusion that the FIR has been recorded much later than one as shown in the document and as such the very genesis of the prosecution case belies and cannot be relied to convict the accused-appellants, we would like to discuss the case Shivlal and another v. State of Chhattisgarh MANU/SC/1106/2011 : (2011) 9 SCC 561 : (AIR 2012 SC 280, para 9) where in a similar situation of delay in sending the FIR to the concerned Magistrate, the Hon'ble Supreme Court relying upon the judgment of Bhajan Singh v. State of Haryana; MANU/SC/0710/2011 : (2011) 7 SCC 421 : (AIR 2011 SC 2552) held in paragraph 18 as follows:--
"18. This Court in Bhajan Singh v. State of Haryana has elaborately dealt with the issue of sending the copy of the FIR to the Ilaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Ram v. State of U.P. (MANU/SC/0813/1998 : AIR 1998 SC 49) and Arun Kumar Sharma v. State of Bihar (AIR 2009 SC (Supp) 2882), came to the conclusion that Cr.P.C. provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159, Cr. P.C. if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case."
The Hon'ble Supreme Court in the above case Shivlal (MANU/SC/1106/2011 : AIR 2012 SC 280, para 11) (supra) while considering the same issue further relied on another judgment State v. N. Raja Manickam MANU/SC/8058/2008 : (2008) 13 SCC 303 : (AIR 2008 SC (Supp) 802 and held in paragraph 21 as follows:--
"21. In State v. N. Raja Manickam this Court dealt with a similar case wherein a lot of lapses had been noted on the part of the prosecution. In the said case, originally 16 persons were named in the charge-sheet out of which one had died, one had absconded and the rest 14 persons faced trial. The trial Court convicted only six out of them. Those six persons preferred the criminal appeal and the High Court found that there were certain vital factors which rendered the prosecution version improbable. One of the factors noted was delay in dispatch and receipt of the FIR and connected documents in the Court of the Magistrate. The factional village rivalry was shown to be the cause of concern therein also. The High Court found that evidence of some of the prosecution witnesses lacked credibility and credence and, thus, all the persons were acquitted. This Court dismissed the appeal of the State observing as under:
"9. Delay in receipt of FIR and the connected documents in all cases cannot be a factor corroding the credibility of the prosecution version. But that is not the only factor which weighed with the High Court. Added to that, the High Court has noted the artificiality of the evidence of P.W. 1 and the non-explanation of injuries on the accused persons which were very serious in nature. The combined effect of these factors certainly deserved consideration and, according to us, the High Court has rightly emphasised on them to hold that the prosecution has not been able to establish the accusations. Singularly, the facts may not have an adverse effect on the prosecution version. But when a combined effect of the factors noted by the High Court are taken into consideration, the inevitable conclusion is that these are cases where no interference is called for."
13. Here, we would like to refer paragraph 17 of the impugned judgment of Court below wherein a reasonable explanation has been given that the FIR was dispatched promptly to the Court after registration of the case and there was no delay on the part of the Investigating Officer. On 12-8-2002 at about 6.45 p.m., the I.O. received an information on telephone that one injured Harihar Mandal had been brought to Sadar Hospital but subsequently he succumbed to his injuries whereafter he lodged a Sanha bearing No. 232 dated 12-8-2002 and for verification, he went to the hospital where he recorded the fardbeyan of the informant Jyotsna Mandal and forwarded the same to Jasidih Police Station for instituting formal FIR, which was lodged at about 11.30 p.m. Apparently, the fardbeyan was forwarded to the Jasidih police station on 12-8-2002 and the formal FIR was lodged on the same date. So it is not that the case was not instituted on the same date rather it was ante-dated.
14. From bare perusal of the ratio decided in the above judgments, it would appear that there cannot be any manner of doubt that Section 157 of the Code of Criminal Procedure (in short "the Code") requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possible improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-dated or ante-timed or investigation is not fair. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' as mentioned in Section 157 of the Code does not mean that prosecution is required to explain the delay of every hour in sending the FIR to the Magistrate. Undoubtedly, the unexplained inordinate delay in sending the copy of the FIR to the Magistrate may affect the prosecution case adversely or an adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there was every chance of manipulation in the FIR by roping innocent person as accused. In the case Ramesh Babu Rao Devaskar v. State of Maharashtra MANU/SC/8026/2007 : (2007) 13 SCC 501: (AIR 2007 SC (Supp) 1606) wherein there had been a delay of four days in sending the copy of the FIR to the Uaqa Magistrate and no satisfactory explanation could be furnished for such inordinate delay, the Hon'ble Supreme Court relying upon earlier judgments State of Rajasthan v. Teja Singh MANU/SC/0085/2001 : (2001) 3 SCC 147 : (AIR 2001 SC 990) and Jagdish Murav v. State of U.P. MANU/SC/8439/2006 : (2006) 12 SCC 626 held that the unexplaned inordinate delay may adversely affect the prosecution case. However, it would depend upon the facts of each case. In the instant case also, from the endorsement made on the FIR, there appears to be a delay of 4 days in placing the FIR before the Magistrate, but this lacuna would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution has produced reliable evidence to prove the guilt of the accused persons. The submission of the learned senior counsel regarding ante-dating or possibility of improvement in FIR would be falsified from the date mentioned on the injury reports, which clearly shows that the injured persons were examined by the doctors on the date of occurrence itself. However, it may be pertinent to point out that the defence did not put any question on this issue while cross-examining the Investigating Officer, providing him an opportunity to explain the delay, if any. Hence, we do not find any force in the submissions made by the learned senior counsel for the appellants in this regard. Even then the view expressed in the above two judgments and relied upon by the learned senior counsel for appellants would be taken into consideration while appreciating the evidences on record with other contemporaneous circumstances involved in the case.
15. Referring now to the issue relating to the appellants' contention that the conviction of the four appellants namely Nageshwar Mandal, Nilkanth Mandal, Dayanand Mandal and Sanjay Mandal under Section 302 read with Section 149 of IPC is not legally sustainable, it is necessary to examine the scope of Section 149 of the IPC, which has been explained by the Hon'ble Supreme Court in the case Mizaji v. State of U.P., MANU/SC/0040/1958 : AIR 1959 SC 572 in the following manner:--
"The first part of Section 149, IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object, it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part."
16. Thus from the mandates given in the above judgment, it is clear that Section 149 of IPC makes every member of the unlawful assembly responsible as a member for the act of each and all. At the same time, one has to keep in mind that the mere presence in the unlawful assembly cannot render a person liable unless there was a common object that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case. Now, we would like to discuss the evidence of prosecution witnesses.
17. The prosecution, as we have stated above, in order to prove the case had examined 16 witnesses but out of the them, P.W. 3 Dilip Mandal, P.W. 4 Nago Mandal, P.W. 5 Brahmchari Shivraj, P.W. 6 Mukund Bihari Mandal and P.W. 8 Arjun Mandal have been declared hostile.
P.W. 1 Dr. Sunil Kumari Sahi, P.W. 2 Dr. Chandreshwar Prasad Sinha, P.W. 13 Dr. Raman Kumar and P.W. 16 Dr. Narendra Kumar Singh have been examined as medical experts and they had examined the injured witnesses and one of them P.W. 13 had conducted autopsy on the dead body of the deceased, Harihar Mandal.
P.W. 9 Jag Mohan Mandal, one of the brothers of the informant, and P.W. 14 Man Mohan Mandal are the hearsay witnesses. So, the entire case hinges around the evidence of the informant P.W. 12, the two sisters P.W. 10 and P.W. 11 and to some extent one independent eye-witness of the occurrence P.W. 7 Subodh Kumar Singh, the driver of the tractor, who was ploughing the field of the informant party when the occurrence took place.
18. Referring now to the witnesses, who have been projected as eye-witnesses to the occurrence, the evidence of the informant P.W. 12 is relevant as she had gone to the field along with the deceased Harihar Mandal-her father and one brother Jan Mohan Mandal, who also subsequently died during treatment. This witness while confirming the time and place of occurrence as given in her fardbeyan further confirmed that they were watching the field when she saw the accused persons armed with various weapons coming towards them. When they came near, she identified Sanjay Mandal, Amar Mandal, Dayanand Mandal, Ambik Mandal alias Karu Mandal armed with swords, Jagdish Mandal, Umesh Mandal, Sashi Sekhar Mandal alias Kartik Mandal, Baikunth Mandal, Bhuneshwar and Rajiv Mandal armed with rod, Nageshwar Mandal and Nilkanth Mandal armed with Farsa, Anandi Mandal having pistol in his hand, Suresh with Bhala, Kameshwar Mandal armed with Katari, Umesh alias Upendra Mandal armed with Sabal and Ranjeet Mandal armed with Barchhi. Baikunth Mandal and Nageshwar Mandal pointing towards her father ordered the accused persons to kill him. Whereafter Sanjay Mandal with intention to kill her father assaulted him on his head with sword which her father tried to save with his right hand but the same caused injury in his right elbow. Amar Mandal assaulted her father from behind on his head with sword causing injury in his head and Dayanand Mandal and Sanjay Mandal again assaulted her father with sword on his head. Umesh alias Upendra Mandal assaulted with his Sabal on his head. After sustaining injury, her father fell down whereafter Nilkanth Mandal assaulted on his neck with his Farsi causing injury in his neck and Nageshwar Mandal assaulted her father on his head with Farsa. After the above, Baikunth Mandal and Jagdish Mandal assaulted her father with rod. She has also testified that she along with her brother Jan Mohan Mandal tried to save father but all the accused persons surrounded her brother and on the order of Jagdish Mandal, accused Anandi Mandal put his pistol on the chest of her brother and threatened not to move ahead, whereafter Nilkanth Mandal assaulted Jan Mohan on his head with Farsa to which her brother tried to save but he sustained injury in his fingers and blood started oozing out. Thereafter, Umesh alias Upendra Mandal assaulted her brother on his head with Sabal causing injury in his head and blood started professing from the injury place and her brother fell down. Ranjit Mandal then assaulted him with Barchhi, Ambika Mandal with sword, Suresh Mandal with Bhala, Nilkanth Mandal with Farsa and Kameshwar Mandal assaulted her brother with Katari causing multiple injury in the hands and leg of her brother. The other persons Baikunth Mandal, Umesh Mandal, Shashi Shekhar Mandal and Raju Mandal also assaulted her brother with rod, Umesh alias Upendra assaulted with Sabal and when this witness tried to save her brother Nilkanth with intention to kill her assaulted her with Farsa but anyhow she could save herself. However, Umesh alias Upendra assaulted on her head with Sabal which she tried to save with her left hand but the same caused a fracture in her hand and she also fell down. The witness has further testified that soon after hearing alarm, her two sisters Sandhya and Bibha came to the place of occurrence and when they entreat objecting to the accused persons not to assault, Umesh alias Upendra and Shashi Shekhar assaulted them also. She has also testified that hearing alarm and noise, several villagers tried to assemble near the place of occurrence but Anandi Mandal fired from his pistol and threatened them not to save the injured persons otherwise they would also have to face the same consequence and after giving threatening, the accused persons were trying to run away, her another brother Jag Mohan Mandal was coming from the same direction and he had also witnessed the accused persons fleeing away with blood stained arms. Thereafter, her brother with the help of villagers brought the injured persons to Sadar Hospital, Deoghar on tempo where the doctors declared her father dead. All injured persons were treated by the doctors. Her statement was recorded by the police in presence of her brother Jag Mohan Mandal and he had also put his signature on the fardbeyan. She also testified that seeing the seriousness of injury, subsequently her injured brother Jag Mohan Mandal was referred to Bhagalpur Medical College but as strike was going on in the said hospital, he was referred to RMCH, Ranchi but seeing his condition, he was brought to Asansol where he was treated by the doctors for almost two months but, he died on 20th July, 2003 during treatment.
19. Apparently, on meticulous examination of the evidence of P.W. 12, it appears that the two sisters P.W.10 and P.W.11 came to the place of occurrence while the accused persons were assaulting the informant, her father and brother Jan Mohan Mandal. Hence, the evidence of P.Ws. 10 and 11 are also necessary to be discussed.
P.W. 10 Bibha Mandal and P.W. 11 Sandhya Mandal have projected themselves as eye-witnesses to the occurrence by confirming their presence near the place of occurrence after hearing alarm and further confirmed that they had seen her father Harihar Mandal, brother Jan Mohan Mandal and sister Jyotsna Mandal going to see the field, which was being ploughed with the help of tractor, the said field is approximately 250 yards away from their house and both came to the place of occurrence after hearing alarm and saw accused persons assaulting their father, who was lying on the ground. Both the witnesses have given description as to which accused was armed with which weapon and how they assaulted their father, Jyotsna and Jan Mohan Mandal and also how they received injuries.
To appreciate the evidences of the two witnesses P.Ws. 10 and 11 along with P.W. 12 the informant regarding arms used by appellants and injuries sustained by deceased and other injured, a tabular chart is given herein below:
20. As regards the genesis of the occurrence, all the three witnesses have confirmed that when the deceased, Jan Mohan Mandal and the informant had gone to watch the ploughing of the field, the appellants variously armed and forming unlawful assembly came and assaulted Harihar Mandal (the deceased), Jan Mohan Mandal and the above three witnesses.
So far the submission of the learned counsel for the appellants that there are contradictions in the evidence of the three witnesses, it is but natural that in their narration, there may occur some contradictions but on perusal of the above tabular chart, it would appear that those contradictions in the evidence of the witnesses regarding the use of arms and injuries are minor and negligible. P.W. 13 the doctor, who had conducted the post-mortem of the body of the deceased. Harihar Mandal, has shown five sharp cut injuries of different sizes on the posterior part of his scalp, in the middle and on the right side, which confirms the assault made by Sanjay Mandal, Amar Mandal, Dayanand Mandal, Nageshwar Mandal with sharp cutting weaspons like sword and Farsa on head. P.W. 13 has also reported abrasion on upper part of the abdoman with bruises in left lower axilla. The witness has also reported one sharp cut injury on the right side of neck, which confirms the assault made by Nilkanth Mandal with Farsa on neck, one sharp cut injury on posterior part of right elbow, one linear abrasion on right lumber region. After dissection of the scalp, the witness had found one linear fracture of 6" long with extra dural haematoma with compression of brain, which confirms the assault made by Umesh alias Upendra with Sabal on head and in the opinion of the doctor, injuries were caused by sharp cutting weapon such as Talwar and Farsa and one of the injury was caused by hard and blunt substance such as rod. So, the medical evidence fully corroborates the injuries and assault as narrated by the P.W. 12 the informant and two sisters P.W. 10 and P.W. 11. The witnesses are not expected to retain a photographic memory in their narration of the occurrence in sequence consistently.
Admittedly, the witnesses were examined almost after a year and it was difficult for a witness to give a vivid picture of the occurrence as to which accused was armed with which weapon and who assaulted whom. Though attention of the three witnesses had been drawn by the defence towards their earlier version rendered before the Police to impeach credibility of the witnesses but there was no vital discrepancy or material, which could impair credibility of the witnesses even if such detailed narrations were not made before the Police during investigation. However, it has come in evidence of P.W. 12 that when the accused persons were assaulting the deceased, she raised alarm but the said alarm was raised at which stage is nowhere mentioned. P.Ws. 10 and 11 came to the place of occurrence after having alarm but those two witnesses have been emphatically stating to have witnessed the occurrence. Narrations made by the two witnesses have been amply corroborated by the positive finding recorded by the doctors who had examined the deceased Harihar Mandal, Jan Mohan and Jyotsna. We are of the view that as the prosecution was launched against the appellants with all promptitude that too suggests bona fide of this incident.
21. So far as the injuries sustained by Jan Mohan Mandal, who subsequently died during treatment after several months of the occurrence, P.W. 16, the doctor, who had examined Jan Mohan Mandal had found (i) fracture in tibia left side, (ii) compound fracture and dislocation of proximal inter phalangeal joint right middle finger, (iii) fracture in phalanx and proximal phalanx (iv) fracture in supra-condullar right femur, besides the lacerated wounds and stitched wounds on other parts of the body. The witness in paragraph 6 of his cross-examination has testified that on enquiry from the patient, he disclosed that he has received these injuries in assault but none of the injury was on the vital part of the body. Here, we would like to say that the injuries reported by P.W. 16 are all in consonance with the assault narrated by the P.W. 12 and her sisters i.e. P.W. 10 and P.W. 11. In such a brutal attack and assault by several persons, it would not be possible for any witness to count the number of assault but apparently all the three witnesses have almost corroborated the narration of each other. In such a fact situation, the injured witness is not supposed to be perfectionist to give the exact account of the assault and injuries. Some sort of contradiction, improvement or exaggeration or embellishment is quite natural and bound to occur in their testimonies.
It is true that the injury reports of P.Ws. 10 and 11 have not been produced by the prosecution but the injury report of P.W. 12 is on record. The testimony of injured witness (P.W. 12) has its own relevance and efficacy as she has sustained injuries at the time and place of occurrence. The Hon'ble Supreme Court in case Ramvilas v. State of Madhya Pradesh, reported in MANU/SC/0876/2015 : 2015 AIR SCW 4811 : (AIR 2015 SC 3362) while considering a similar circumstance has held that the evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard the evidence of the injured witnesses.
We are of the opinion that such witness comes with a built in guarantee of her presence near the scene of crime. Thus, her evidence should be relied upon unless there are grounds for the rejection on the basis of major contradiction and discrepancies therein. It is will settled that in any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. When the medical evidence completely rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. We have said above, medical evidence fully corroborates the ocular evidence.
22. A scathing comment has been made by the learned senior counsel for appellants that one of the injured witness (P.W. 11) during her cross-examination has admitted that she has some problem in her eye-sight and she cannot look beyond three metres, we find that all the accused persons were known to this witness being Gotias and not strangers to make their identification difficult by the witness.
23. As we have noticed, there had been evidence of other witnesses too, who though did not claim to be the ocular witnesses to the incident but lent substantial assurance to the prosecution allegations and they happen to be P.W. 7 and P.W. 9. We wish to examine the credibility of these two witnesses for whom scathing comments have been made by the learned counsel for the appellants.
24. Now, adverting to the evidence of P.W. 9, we find that on the date of occurrence, when he reached his house from Deoghar, he heard the sound of cry and alarm from the field side and when he came out of his house and moved towards the said place, he saw 15-20 persons coming towards the house of Nageshwar Mandal and out of them, Sanjay Mandal, Amar Mandal, Dayanand Mandal and Ambika Mandal were having swords in their hands, Nageshwar Mandal having a blood stained Farsa in his hand, Jagdish Mandal, Baikunth Mandal, Umesh Mandal, Rajiv Mandal, Bhuneshwar Mandal and Sashi Shekhar alias Kartik Mandal having rods in their hands, Ranjit having Barchhi in his hand, Anandi with pistol, Nilkanth with Farsa, Kameshwar having Katari in his hand. The witness ran towards the place of occurrence but he heard the voice of Anandi, who was abusing and saying that he had killed Harihar Mandal and Jan Mohan Mandal and whoever gives any assistance, he would also have to face the same consequence. He found his younger sisters Jyotsna Mandal, Bibha Mandal and Sandhya Mandal on the ground in injured condition. Thereafter, he ran towards, the main road and with the help of villagers, he brought his father, brother and three injured sisters to Sadar Hospital, Deoghar on tempo where the doctor declared his father as dead but the treatment was given to his brother and sisters and in the hospital. The officer-in-charge of Kunda Police Station came and recorded the fardbeyan of his sister Jyotsna. His sister narrated the entire occurrence to him as to how the accused persons assaulted his father, brother and sisters.
25. Apparenly, the presence of this witness (P.W.9) cannot be denied in hospital as his signature was also obtained by the officer-in-charge on the fardbeyan of the informant. This witness was extensively cross-examined but nothing could be extracted from him to declare this witness untrustworthy. Hence, this witness appears to be true with regard to his narration after the occurrence when the accused persons were returning back after committing the offence.
26. P.W. 7 is Subodh Kumar Singh, the driver of the tractor, who was ploughing the field of the informant's party at the time of the alleged occurrence. This witness while confirming the time and the place of occurrence has further testified that he was ploughing the field of Harihar Mandal when Harihar Mandal and Jan Mohan Mandal came there, at the same time, 5-6 persons also came there and they assaulted Harihar Mandal but they were not known to him. The witness has further deposed that Nageshwar Mandal and Sanjay Mandal are known to him but they were not present at the time of occurrence. In a short cross-examination, the witness has testified that while he was ploughing the land, the deceased Harihar Mandal, his son Jan Mohan Mandal, daughters Sandhya Mandal, Bibha Mandal and Jyotsna Mandal were all present and watching the ploughing of field.
27. P.W. 15 Ras Bihari Paswan, the I.O. of the case, stated to have taken up the investigation of the case after recording fardbeyan of Jyotsna Mandal (P.W. 12). He stated to have prepared the inquest report of the dead body of the deceased, visited the place of occurrence, noticed the sign of legs at the place of occurrence and also found that the sisters of Jan Mohan Mandal were getting treatment in the hospital and during investigation, he recorded the statement of witnesses. This witness during cross-examination has testified that the witness Jyotsna Mandal had not stated before him that Sanjay Mandal with an intention to kill his father assaulted on his head but his father tried to save the said blow with the hand but the said blow caused injury in the elbow of his father and, thereafter, Dayanand Mandal and Sanjay Mandal again assaulted the deceased with sword and Upendra Mandal assaulted the deceased on his head from back whereafter, her father fell down. The witness has also denied that Jyotsna had ever stated before him that while her father fell down, Nilkanth Mandal assaulted on the neck of her father causing injury. Here, we would like to say that the first information report is not an encyclopedia of the entire occurrence but even then there is a clear allegation in the FIR that Sanjay Mandal, Amar Mandal and Dayanand Mandal assaulted her father with sword and Nageshwar Mandal assaulted her father with Farsa and Jagdish Mandal assaulted with rod on his head, whereafter her father fell down and became unconscious.
28. Referring to the stray statements made by the witnesses, learned senior counsel for the appellants wants to dig a hole in the prosecution case and submits that none of the witness appears to be a truthful and trustworthy as there is contradiction and exaggeration with regard to the assault and use of weapon in their evidences and in the statements recorded during investigation.
From perusal of the impugned judgment, we find that the learned trial Court has duly considered the evidence of each witness examined by the prosecution and assigned reason for placing reliance on the testimony of the witnesses particularly the evidence of the informant and the injured witnesses. The prominent facts, emerging from the evidence of the witnesses on record are that there was a land dispute between the parties and except some of the appellants, all other appellants are the 'Gotias' of the deceased and the partition suit between the parties was decided in favour of the appellants and during pendency of the trial of this case in Court below, the appeal preferred before this Court was also decided in their favour. They were the decree holders and the deceased was the judgment-debtor. However, it has come in the evidence that on the date of occurrence, the driver Subodh Kumar Singh (P.W. 7) was ploughing the land on the direction of the deceased and his family members which they claimed to be there, whereafter the appellants armed with different weapons assembled there to vindicate their right to the land by show of force or use of force and assaulted the deceased Harihar Mandal, the informant, the two daughters of Harihar Mandal and one son. All the appellants came together armed with weapons. The nature of injuries found on the deceased and other injured persons gives clear indication of a common intent of the assembly to go to the extent of causing death. In the facts and circumstances, we safely infer the common object of the unlawful assembly. The members reaching to the plot together armed with weapons and immediate attack on the persons present there clearly exhibits the intention of the unlawful assembly and all the appellants assaulted the injured. We have been taken through the evidence and we do not find any reason to disbelieve the version of the witnesses which found approval of the trial Court.
29. Refuting to another submission of learned senior counsel that it has come in the evidence that a large number of persons had garnered near the place of occurrence after hearing the alarm and cry but no independent witness has been examined by the prosecution for me reasons best known to it, in a case like this, where due to previous land dispute, one person has been killed and several persons got injury whereafter one of the injured died during treatment, even if co-villagers had witnessed the occurrence but as it has come in the evidence that while fleeing away, the appellants had threatened the co-villagers not to assist any of me injured otherwise they would have to face the same consequences it is natural that no one would come forward to depose against those assailants in Court. Moreso, the defence, as it appears from the evidence of the Investigating Officer, did not ask any question from the Investigating Officer (P.W. 15) as to why he could not have furnished the explanation for not examining the independent witness. In that view of the matter, we are of the considered opinion that the appellants are not entitled to take any benefit of that situation.
Apparently, the witnesses examined in this case are all injured witnesses and belong to the same family. The evidence of a relative witness can be relied upon provided it is trustworthy. We have already explained and discussed in preceding paragraphs me effect of examination of a related injured witness. Undoubtedly, such evidence is carefully scrutinized and appreciated by the Court below before reaching to a conclusion on the conviction of the accused. It is also well settled that while appreciating the evidence of a witness or witnesses, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. Thus, we are also of the opinion that undue importance should not be attached to omissions, minor contradictions and discrepancies, which do not go to the bottom of the matter and shake the basic version of the prosecution witness. In the instant case, we could not find any major contradiction either in the evidence of witnesses or conflict in medical evidence, which tilt the balance in favour of the appellants.
30. After going through the materials on record, we are of the view that the prosecution has led reliable evidence the veracity of which is not dislodged by delay in sending the same to the Magistrate in the facts and circumstances of this case. At best, it can be taken to be an infirmity in investigation.
31. One criminal revision was also filed by the informant for enhancement of the sentences awarded to the accused persons, who were convicted under Section 325 read with Section 149 of the Indian Penal Code but none appeared to press the said revision application. Hence, the said revision application is dismissed as not pressed. In view of the above, we do not find any force in either of these appeals. The same are dismissed. The judgment of conviction of the trial Court dated 5-5-2005 and order of sentence dated 6-5-2005 are, hereby, affirmed in its totality. The bail bonds of the appellants, who are on bail, are, thus, cancelled and they are directed to surrender in the Court below within a period of three weeks from today, failing which the Court concerned shall ensure to take them into custody and send them to jail to serve the remaining part of their sentences.
Rakesh Ranjan Prasad, J.
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