Ghanshyam Mandal and Ors. v. The State of Bihar

1. The appellants are aggrieved by the judgment dated 09.05.2019 passed by the Division Bench of the Jharkhand High Court in Criminal Appeal No.533 of 1996. By that judgment, the conviction of the appellants by the Sessions Court in Sessions Case No.342 of 1986 under Section 302 read with Section 34 of the Indian Penal Code[1] has been upheld.

2. The case of the prosecution in brief is that as per the informant-Chetan Mandal on 15.08.1985 at about 03.30 P.M, while he was cutting grass at his courtyard, he heard shouts raised by his brother Bulaki Mandal. On coming out of his house and approaching the passage outside, he saw Shiv Prasad Mandal and For short, the Penal Code Dindayal Mandal having garasas in their hands, Anirudh Mandal having a sword in his hand, who were all entering the courtyard of his brother’s house. After raising slogans, they started assaulting him. The informant further saw that his brother Bulaki and nephew Hriday were being dragged out of the house and taken near the house of Jahazi in the passage by the aforesaid persons. He also saw Ghanshyam Mandal who was having a pistol and Gupti in his hand; Bijay Mandal having a farsa alongwith Sanjay Mandal having a bhala and Manoj Mandal having an axe in his hand. With these weapons, the aforesaid persons assaulted the informant’s brother and nephew, due to which both of them fell on the ground. The assault continued till the victims died on the spot. According to the informant, the occurrence was witnessed by various villagers. After the assault, the assailants fled away. He further stated that on the same day at about 06.00 A.M, two goats of Shiv Parsad Mandal had grazed the crops of Bulaki Mandal, due to which an altercation had taken place between them. At that time, Shiv Prasad Mandal had given threats of dire consequences to Bulaki Mandal. On the basis of such information, the case was registered on 15.08.1985. On completion of the investigation, the charge sheet was filed and the case was committed for trial.

3. The appellants denied the charges and were accordingly tried. The prosecution examined eight witnesses in support of the charges while the accused examined three witnesses in their defence. At the conclusion of the trial, the learned Judge of the Sessions Court came to the conclusion that it was the accused who were guilty of having committed the murder of Bulaki Mandal and Hriday Mandal. On being found guilty, they were convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with 34 of the Penal Code. The appellants preferred an appeal challenging their conviction. The High Court on a re-consideration of the entire evidence held that the occurrence had been duly proved by the four eye-witnesses examined by the prosecution. The motive behind the attack had been established. The High Court, therefore, upheld the conviction of the appellants and dismissed the appeal. Being aggrieved, the appellants have filed the present appeal.

4. Ms. Anjana Parkash, learned Senior Advocate for the appellants while assailing the judgment of the High Court submitted that both the Courts erred in believing the case of the prosecution on the basis of evidence led by the prosecution. All the witnesses examined were related to the deceased and hence were interested in the conviction of the appellants. Though independent witnesses were available, as was claimed by the prosecution, they had not been examined. The evidence of PW-1 to PW-4 was full of material contradictions and was, thus, inconsistent with the case of the prosecution. Such evidence was not liable to be accepted. It was further submitted that the weapons of assault had not been recovered and this created a doubt about the case of the prosecution. In absence of recovery of the weapons of assault, the guilt of the appellants could not be established. Moreover, the copy of the post-mortem report was sought to be relied upon without producing the original certificate. It was further submitted that the plea of alibi raised by the appellants had been duly established by examining defence witnesses. The same was however brushed away by the Courts without assigning any reason. It was then submitted that while examining the appellants under Section 313 of the Code of Criminal Procedure, 1972[2], similar questions of general nature were put to all the accused without specifically indicating any material circumstances appearing in the evidence against them. Placing reliance upon the decisions in Raj Kumar @ Suman Vs. State (NCT of Delhi)3, Shambhu Choudhary Vs. State of Bihar[4], Asraf Ali Vs. State of Assam[5] and Raj Kumar For short, the Code 2023 INSC 520 SLP (CRL) NO.8688/2023 Order 23.04.2025 2008 INSC 840 Singh Vs. State of Rajasthan[6], it was submitted that this had caused prejudice to the appellants and they were liable to be acquitted on this sole count. It was, thus, submitted that the incident having occurred more than four decades ago and the appellants being senior citizens were liable to be acquitted as the prosecution had failed to prove its case beyond reasonable doubt. The appeal was, thus, liable to be allowed.

5. On the other hand, Mr. Vishnu Sharma, learned counsel for the respondent supported the impugned judgment. According to him, the testimony of all the four eye-witnesses was consistent and reliable. Their presence at the site of the occurrence was natural and merely on the ground that they were related to the deceased, could not be made the reason to discard their evidence. Said witnesses had been duly cross-examined and nothing adverse had been found therein. The prosecution had established the motive for the crime and in furtherance of their common intention, the appellants had caused the death of the two victims. The postmortem report revealed various injuries caused by sharp weapons and the cause of death had been established to be homicidal. As regards the examination of the appellants under Section 313 of the Code, it was submitted that the incriminating circumstances 2013 INSC 313 relating to the role of the appellants had been put to them. There was an opportunity for the appellants to deny their joint participation but they failed to do so. No prejudice was caused to the appellants in that regard and, hence, they could not seek any benefit in that regard. Reliance was placed on the decision in Suresh Sahu and anr. Vs. The State of Bihar (now Jharkhand)7. It was, thus, submitted that the Sessions Court and thereafter the High Court had considered the entire evidence on record and had found the involvement of the appellants to be proved beyond reasonable doubt. There was no reason, whatsoever, to interfere with the said adjudication. The appeal was, therefore, liable to be dismissed.

6. We have heard the learned counsel for the parties at length and with their assistance, we have also gone through the records of the case. We have also perused the evidence on record. On giving due consideration to the material on record, we find the version of the four eye-witnesses to be consistent and also acknowledging the presence of each other at the spot of the incident. The manner in which the appellants assaulted Bulaki Mandal and Hriday Mandal has been clearly indicated. These witnesses were cross-examined but nothing contrary to the prosecution case has been elicited from 2025 INSC 1382 them. Minor inconsistencies therein does not weaken the prosecution case. The Sessions Court and thereafter the High Court have appreciated this ocular evidence and we find no reason to take a different view of the matter.

7. It was urged on behalf of the appellants that in the absence of recovery of any weapons of assault, the prosecution had failed to establish the guilt of the appellants. It is true that the Investigating Officer failed to bring on record any material indicating recovery of the weapons of assault that were described by the eye-witnesses. However, this aspect cannot enable the appellants to seek any benefit in the light of the fact that the version of the eye-witnesses as regards the assault has been found to be reliable. It may be observed that recovery of the weapons of assault is not the sine qua non for convicting an accused as the entire evidence on record is required to be taken into consideration. In this regard, we may refer to the decision in Rakesh and anr. Vs. State of U.P. and anr.8. In paragraph 11, it has been observed as under:

8. We may also refer to a recent decision in Om Pal and Ors. Vs. State of U.P. (now State of Uttarakhand)9. In paragraphs 49 and 50 thereof, it has been observed as under:

50. Also in Nankaunoo vs. State of Uttar Pradesh17, this Court held that where in light of unimpeachable oral evidence is corroborated by the medical evidence, non-recovery of murder weapon does not materially affect the case of the prosecution. Any omission on the part of the investigating officer cannot go against the prosecution’s case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.” From the aforesaid, it is clear that the absence of recovery of the weapons of assault would not weaken the case of the prosecution in the presence of other evidence on record that is found reliable.

9. Much emphasis was sought to be placed by the learned Senior Advocate for the appellants as regards the examination of the appellants under Section 313 of the Code. It was submitted that all the appellants were asked similar questions without specifically putting the material adverse to them. In that regard, we have perused the examination of the appellants under Section 313 of the Code. We find that the incriminating circumstances appearing against the appellants were put to them, though in general terms. There is some similarity in the questions put to the appellants. However, such examination by itself cannot be the basis for upholding the contention of the appellants in that regard unless it is shown that prejudice was caused to them on account of such examination. In the facts of the present case, when the entire material brought by the prosecution is considered, we find that the evidence led by the eye-witnesses inspires confidence and clearly establishes the guilt of the appellants. The nature of prejudice caused to the appellants has not been indicated. In this regard, we may refer to the decision in Fainul Khan Vs. State of Jharkhand and anr.10. While dealing with a similar contention raised therein, it was held as under: