Rishi Mandal vs State of Bihar - 2023 Supreme(Pat) 954

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 954

IN THE HIGH COURT OF JUDICATURE AT PATNA
SUDHIR SINGH and CHANDRA PRAKASH SINGH, JJ.
Criminal Appeal (DB) Nos. 636, 521 of 2016
(16.10.2023)
Rishi Mandal (in 636)
Subhash Singh (in 521) ... Appellants
vs.
State of Bihar ... Respondent
(in both)

Advocates Appeared:
For the Appellants : M/s Shashi Priya Pathak, Ambrish Kumar Jha (in 636); Pratik Mishra, Vikash Kumar Jha, Davendra Kumar Pandey (in 521).
For the Respondent: Mr. Abhimanyu Sharma, APP (in both).

Headnote:
Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Life sentence – There is delay of approximately 14 hours in lodging FIR – Allegations in FIR present a coloured version of case – Inordinate delay is fatal to prosecution – Taking into account statements of all eyewitnesses and investigation made, manner in which this case transpired appears dubious – Non-examination of material witness also raises doubts regarding suppression of material facts by prosecution – Prosecution has failed to present a complete case as crucial witnesses who could potentially provide much relevant information and would have illuminated essential aspects of case were not examined – There is no medical report exhibited by prosecution in support of medical report regarding mental health condition of injured witness – Non-examination of material witness who has been withheld by prosecution caused prejudice to appellants – Prosecution has failed to establish and prove source of identification under which appellants have been identified – When place of occurrence itself has not been established, it would not be proper to accept version of prosecution – Inconsistency between ocular and medical evidence is a fundamental defect in prosecution case and unless reasonably explained, it is sufficient to discredit entire case – Judgment of conviction and order of sentence set aside – Appeals allowed. (Paras 10, 11, 12, 13, 14, 15, 16, 17 and 19)
Criminal Law – Appreciation of evidence – Non examination of a material witness, who could provide essential information or fill gaps in prosecution's case, may lead Court to draw adverse inference against prosecution – However, if overwhelming evidence has already been presented, non-examination of additional witnesses may not be significant – In such cases, Court must scrutinise value of evidence already presented and consider whether witness in question was available but withheld. (Para 17)

Sudhir Singh, J. – Both the criminal appeals arise out of common judgment of conviction dated 29.04.2016 and order of sentence dated 03.05.2016, therefore, to have been heard together and are being disposed of by this common judgment.

2. The appellants named above have preferred these appeals against the common judgment of conviction dated 29.04.2016 and the order of sentence dated 03.05.2016, passed by Shri Janardan Tripathi, 1st Additional District and Sessions Judge, Bhagalpur in Sessions Trial No.1056 of 2013 arising out of Sanhola P.S. case No.02 of 2007, whereby and whereunder the appellants have been convicted under Sections 302/34 of the Indian Penal Code (referred to ‘I.P.C.’) and have been sentenced to undergo life imprisonment with fine of Rs.1,00,000/- each for the offence under Sections 302/34 of the I.P.C. and in default of payment of fine, further to undergo imprisonment for five years.

3. The prosecution case, as per the F.I.R., is that on 01.01.2007 at 6:30 p.m. when the informant was at his house, at that time from the side of Gerua river, Rishi Mandal, Bhola Mandal, Vidya Mandal and Bindu @ Vinod came to the house of the informant after abusing, upon which the informant hide himself in the northern side of his house, which is adjacent to the land of Tanti. The children and woman of the house also ran away. Seeing the wife of informant running away, the accused chased her by hitting the eastern gate and firing. They caught her near the Bathan of Vishundev Tanti and injured her by inflicting the blow of Kunda over face. The accused pushed her on the land, where the wife of informant, namely, Babli Devi, who was 65 years, died and thereafter they went towards Gerua River. During the assault, Vishundev Tanti had asked the accused to leave the old lady, but they did not listen. The informant was seeing every thing by hiding beside. In the morning of 02.01.2017, the informant came to know that the mother of Hareram Mandal and Mahadeo Mandal were also killed and after getting this information, the informant went to see the dead body. He saw the dead body of Pago Devi. Meena Devi, daughter-in-law of Pago Devi, told that yesterday i.e. 01.01.2007 at 5:30 p.m. the named accused persons armed with katta came and started abusing and thereafter Meena Devi hide herself and she further told that Rishi Mandal after breaking handle of Handpump assaulted Pago Devi and other assaulted by fists and legs and killed Pago Devi. Thereafter the informant went to the house of Mahadeo Mandal and found him dead. Archana Devi, daughter-in-law of deceased, informed that on 01.01.2007 at about 5 p.m. Rishi Mandal, Murari Mandal, Suchit Mandal, Bindu @ Vinod Mandal, Salil @ Saligram Mandal, Vikas Mandal came abusing there and entered in the house. The mother-in-law of Archna Devi was injured by butt of katta and her father-in-law Mahadeo Mandal was taken on the roof, where he was shot dead. The cause of occurrence was disclosed as the fight for supremacy between Rishi Mandal and Hare Ram Mandal.

4. On the basis of fardbeyan of the informant, Sanhaula P.S. case No.02 of 2007 was registered under Sections 302, 307/34 of the I.P.C. After completion of investigation, the Investigating Officer submitted charge-sheet under Sections 302/34 of the I.P.C. and Section 27 of the Arms Act and thereafter cognizance was taken by the Jurisdictional Magistrate and thereafter the case was committed to the court of Sessions. Charges under Sections 302/34 of the I.P.C. were framed against the appellants to which the appellants pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined altogether ten witnesses, namely, Anita Devi (PW 1), Shamli Paswan (PW 2), Jantu Paswan (PW 3), Kaili Devi (PW 4), Archana Devi (PW 5), Mina Devi (PW 6), Jhaksu Paswan (PW 7), Renu Devi (PW 8), Dr. Arun Kumar Singh (PW 9) and Satya Narayan Mandal (PW 10). In support of its case, the prosecution has also produced exhibits as Ext.1 (postmortem report of Bab