Patna High Court
Chamolal Mandal @ Chamulal Mandal @ … vs The State Of Bihar on 26 June, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.654 of 2023
Arising Out of PS. Case No.-78 Year-2017 Thana- ANTICHAK District- Bhagalpur
======================================================
1. Gajadhar Kapri @ Gajadhar Mandal, S/O Late Suresh Kapri, R/O Village-
Rani Diyara, P.S- Ekchari, Distt.- Bhagalpur.
2. Jaikant Mandal, S/O Late Chamaklal Mandal, R/O Village- Authawan, P.S.-
Ekchari, Distt.- Bhagalpur.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 686 of 2023
Arising Out of PS. Case No.-78 Year-2017 Thana- ANTICHAK District- Bhagalpur
======================================================
Rajesh Mandal @ Rajeev, Son of Bajrangi Mandal, Resident of Tofil, P.S.
Antichak, Dist- Bhagalpur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
=====================================================
with
CRIMINAL APPEAL (DB) No. 692 of 2023
Arising Out of PS. Case No.-78 Year-2017 Thana- ANTICHAK District- Bhagalpur
======================================================
Chamolal Mandal @ Chamulal Mandal @ Chamaklal Mandal, Son of Late
Soti Mandal, Resident of Village- Anthawan, PS- Ekchari, Distt- Bhagalpur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 654 of 2023)
For the Appellant/s : Mr. Ranjan Kumar Jha, Advocate
Mr. Rana Pratap Singh, Advocate
Mr. Vikas Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.PP
(In CRIMINAL APPEAL (DB) No. 686 of 2023)
For the Appellant/s : Mr. Pravin Kumar Sinha, Advocate
Mr. Suresh Chand Giri, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.PP
(In CRIMINAL APPEAL (DB) No. 692 of 2023)
For the Appellant/s : Mr. Praveen Kumar, Advocate
Mr. Ravi Prakash Dwivedi, Advocate
Mr. Raushan Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.PP
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
2/28
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 26-06-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State in all the three appeals.
2. The present three appeals have been preferred for
setting aside the judgment of conviction dated 06.05.2023
(hereinafter referred to as the 'impugned judgment') and the order
of sentence dated 29.05.2023 (hereinafter referred to as the
'impugned order') passed by learned Additional Sessions Judge-II,
Bhagalpur (hereinafter called the 'learned trial court') in S.T. Case
No. 392 of 2018 arising out of Antichak P.S. Case No. 78 of 2017.
3. By the impugned judgment and order, the appellants
have been convicted and sentenced as under:-
Under (Gajadhar Kapri @
Section Gajadhar Mandal
302 read
with 149 Jaikant Mandal)
IPC appellants in Cr. Appeal
(DB) No. 654 of 2023 Life In default of
imprisonment payment of
(Rajesh Mandal @ with fine of fine, they have
Rajeev Mandal) Rs.10,000/- to further under
appellant in Cr. Appeal one year
(DB) No.686 of 2023 imprisonment
Chamolal Mandal
appellant in Cr. Appeal
(DB) No.692 of 2023
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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Under Gajadhar Kapri @ Imprisonment In default of
Section Gajadhar Mandal for Five years payment of
27(i) of with a fine of fine, they have
the Arms Jaikant Mandal Rs.5,000/- to further under
Act six (06) months
imprisonment
Prosecution Case
4. The prosecution story is based on the fardbeyan of
Sitaram Yadav (PW-4) recorded by S.I. Rajesh Kumar Antichak
P.S. on 07.11.2017 at 14:00 Hours at Nawada More P.S. Antichak.
In his fardbeyan, PW-4 has stated that on 07.11.2017 at 06:00 AM
his son Kakku Yadav @ Nilamber Yadav with two labourers
namely, (1) Lakshman Yadav and (2) Saudagar Mandal loaded
grains on his tractor and went for Kahalgaon. His son was driving.
At about 12:10 PM his bhanja Nirbhay Yadav gave information on
phone that his son Kakku Yadav has been shot and killed by
cutting with sharp weapon. Then, the informant asked him if he is
dead or alive to which his bhanja replied that he is dead.
Thereafter, the informant informed Buddhuchak Police Station
that his son has been killed near Nawada More. Thereafter, the
informant along with Chattu Mandal went near Nawad More
where he saw his son was lying in roadside field. Thereafter,
Lakshman Yadav told him that when they reached at Nawada More
at 08:00 AM, one tyre of the tractor blew out. They took out the
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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punctured tyre and sent the same to Oriop. In the meantime, Kakku
Yadav called his fua to cook food. Thereafter, they went to the
house of his fua and ate food. At around 11:00 AM, when they
returned, Kakku Yadav and Chattu Mandal went on motorcycle to
Oriop to get the tyre. At 11:45 AM, when they were fitting the tyre
then, accused persons, namely, (1) Gajadhar Kapri (2) Jaikant
Mandal (3) Rajeev Mandal (brother-in-law of Gajadhar Kapri) and
(4) Anjani Mandal came. Gajadhar took Kakku Yadav down the
road by putting gamcha thereafter Jaikant Mandal shot at the thigh
of kakku Yadav, thereafter Gajadhar shot at kanpatti of Kakku
Yadav and once again Jaikant fired as a result of which Kakku
Yadav fell on the ground. Thereafter, Rajeev Mandal cut his throat
by dabiya and Anjani Mandal cut his throat by an axe. On hulla,
people started assembling, in the meantime, two persons who were
on motorcycle was saying not to left him alive. Thereafter, all left
on two motorcycles by riding three persons on each. The two
persons who were already on the motorcycle were Manoj and
Chamolal Mandal.
5. On the basis of this written application, Antichak P.S.
Case No. 78 of 2017 dated 07.11.2017 was registered under
Sections 302/120(B)/34 IPC and Section 27 of the Arms Act. After
investigation, Police submitted chargesheet bearing No. 15 of 2018
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dated 10.05.2018 against these appellants under Sections
302/120B/34 IPC and Section 27 of the Arms Act keeping
investigation pending against (1) Manoj Tani and (2) Anjani
Mandal. On the basis of the chargesheet, learned A.C.J.M.-XIV,
Bhagalpur took cognizance of the offences vide order dated
14.05.2018
. Charges were read over and explained to the
appellants in Hindi to which they pleaded not guilty and claimed
to be tried. Accordingly, vide order dated 04.07.2018, charges
were framed under Sections 302/149 IPC and 27 of the Arms Act.
6. In course of trial, the prosecution examined as many
as thirteen witnesses and exhibited several documents to prove its’
case. The list of the prosecution witnesses and the exhibits
produced on behalf of the prosecution are being shown hereunder
in tabular form:-
List of Prosecution Witnesses
PW-1 Nirbhay Yadav
PW-2 Saudagar Mandal
PW-3 Laxman Yadav
PW-4 Ramdhari Yadav
PW-5 Sitaram Yadav
PW-6 Subodh Yadav
PW-7 Binod Kumar Yadav
PW-8 Brahmdev Chaudhary
PW-9 Sukhdeo Prasad Yadav
PW-10 Dr. Rajeev Ranjan
PW-11 Rajesh Kumar
PW-12 Sanjeev Kant
PW-13 Chiranjiv Lal Tiriya
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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Exhibit 1 Signature of witness Laxman Yadv over
seizure list
Exhibit 2 Signature of the informant Sitaram Yadav over
Fardbeyan
Exhibit 2/1 Signature of witness Laxman Yadav over
Fardbeyan
Exhibit 3 Postmortem report of the deceased
Exhibit 2/2 Contents of Fardbeyan
Exhibit 2/3 Endorsement over Fardbeyan
Exhibit 4 Formal FIR
Exhibit 5 Inquest Report
Exhibit 6 Seizure List
Exhibit 7 Map of the place of occurrence
Exhibit 8 Paragraph 63 and 64 of the case diary
Exhibit 9 Chargesheet
Exhibit 10 Test report of seized articlesList of Material Exhibits
Material Exhibit 1 Fired cartridge
Material Exhibit 2 Slipper
Material Exhibit 2/1 Mobile PhoneFindings of the learned Trial Court
7. Learned trial court after analysing the evidences on
the record found that the death of the deceased was caused due to
four injuries found on his body regarding which it has come in the
post mortem report that these injuries are grievous and dangerous
to life in ordinary course of nature and caused by sharp heavy
weapon such as dabiya, axe and firearm. Learned trial court found
that when the accused fired on temple and chest of the deceased,
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they were well aware that by their act, such bodily injury will be
caused which will result in the death of the deceased. Learned trial
court also found that the act of firing bullet on temple and chest of
the deceased as also cutting his throat by sharp edged weapon
clearly shows the intention of the accused to cause death.
Accordingly, the act of the accused comes under the purview of
Section 300 IPC i.e. the death of the deceased Kakku Yadav is
such culpable homicide which amounting to murder.
8. Learned trial court further found from the evidences
of the eye witnesses that firearms had been used by accused
Jaikant and Gajadhar. Cartridge was recovered from the place of
occurrence. Learned trial court observed that though the firearm
has not been recovered but the recovery of the firearm is not
always necessary for conviction of the accused, specifically in the
cases, where it has been proved that the accused fired the shot by
firearm and caused death of the deceased. Accordingly, the act of
using firearm by accused Gajadhar and Jaikant falls under the
ambit of first part of Section 27 of the Arms Act.
9. Learned trial court after carefully examining the
evidences available on the record convicted all the appellants
under Section 302 read with 149 IPC and further convicted
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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Gajadhar Kapri @ Gajadhar Mandal and Jaikant Mandal under
Section 27(i) of the Arms Act.
Submissions on behalf of the appellants
10. Learned counsel(s) for the appellants have assailed
the impugned judgment and order on various grounds. Mr. Ranjan
Kumar Jha, learned counsel representing the appellants in
Criminal Appeal (DB) No. 654 of 2023, submits that in this case,
the learned trial court could not appreciate that the prosecution had
not examined the FIR named witnesse, namely, Chhattu Mandal
who was said to be present with the deceased at the time and date
of occurrence. According to him, the informant is not an
eyewitness of the occurrence, he got the information from his
nephew Nirbhay Yadav about the murder of his son Kakku Yadav.
11. Learned counsel submits that Nirbhay Yadav (PW-1)
who had informed about the occurrence to the informant has been
declared hostile by the prosecution on the point of identification of
the accused persons. It is submitted that PW-2, PW-3 and PW-4,
who claimed themselves as eyewitnesses of the occurrence, are
actually not the eyewitnesses. It is submitted that PW-2 and PW-4
have stated that they fled due to fear in their cross-examination.
12. Learned counsel submits that the informant and the
deceased both were convicted in the murder case of Santosh and it
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has come in the statement of the accused recorded under section
313 CrPC that in the quarrel between the informant side and the
said Santosh over ploughing of a piece of land, the appellants had
intervened and that is the reason why the appellants have been
falsely implicated in this case.
13. Learned counsel submits that the learned trial court
could not appreciate that after getting the information about the
killing of the deceased son, the informant had informed/intimated
the Budhu Chak Police Station first and after reaching at the place
of occurrence, he had made fardbeyan before Antichak Police
Station. The information/intimation before Budhu Chak Police
Station is not available on the record.
14. Mr. Praveen Kumar Sinha, learned counsel for the
appellant in Cr. Appeal (DB) No. 686 of 2023 has assailed the
impugned judgment and order on the ground that the prosecution
has failed to properly prove the place of occurrence and there are
material contradictions in the statement of the prosecution
witnesses.
15. It is submitted that the learned trial court has not
considered the materials on the record in which it has come that
the death of the deceased was caused by gunshot injury whereas
the appellant was holding hasua which caused sharp cut wound
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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margin 3″ x 1/2″ x muscle deep over left surface of upper part of
neck behind left ear and death was caused due to hemorrhage and
shock due to firearm.
16. It is further submitted that there is no independent
witness in this case and the whole prosecution case has been
proved on the basis of the statements of interested witnesses who
are either informant or his relatives.
17. Arguing on behalf of the appellant Chamolal Mandal
@ Chamulal Mandal @ Chamaklal Mandal in Cr. Appeal (DB)
No. 692 of 2023, learned counsel submits that so far as this
appellant is concerned, he is not the assailant of the deceased. It
has also not been established that this appellant was member of the
unlawful assembly. The only witness namely PW-3 has stated that
this appellant was on a motorcycle and he asked the accused
persons to cut the neck of the deceased and bring it but this
statement of PW-3 is not corroborated by another witness namely
PW-2 who claims himself an eyewitness of the occurrence.
Submissions on behalf of the State
18. On the other hand, learned Additional Public
Prosecutor for the State submits that in this case Saudagar Mandal
(PW-2) and Laxman Yadav (PW-3) are the labourers who were
present on the tractor with the deceased, they have deposed as
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eyewitnesses of the occurrence. They have proved their presence
with the deceased and have also proved the place of occurrence. It
is submitted that while cross-examining PW-2 and PW-3, the
defence did not set up a case that they were not present on the spot
or that they could not have seen the occurrence. PW-2 has stated
that he had concealed himself beneath the tractor and from there
he had seen the occurrence. The defence has not suggested that
from beneath the tractor he could not have seen the occurrence.
PW-3 has stated about the manner of occurrence, though he claims
to have assaulted one of the assailants with an iron rod but the
defence has not questioned his presence at the place of occurrence.
19. It is submitted that Ramdhari Yadav (PW-4) is an
independent witness, though, comes in the category of a chance
witness. The defence suggested PW-4 that he was named in the
murder case of Sakhi Chand @ Prayag Mandal but the witness
denied this suggestion. The defence suggested PW-4 that he had
been sent to jail in connection with the said case and he came out
on bail in appeal but that suggestion was also denied and finally,
the witness denied this suggestion that the said case was lodged by
a relative of Gajadhar, namely, Lakhan Lal Mandal and for that
reason, Gajadhar and others have been falsely implicated in this
case. It is pointed out that the defence has not led any evidence to
Patna High Court CR. APP (DB) No.654 of 2023 dt.26-06-2025
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show that this witness was an accused in the murder case of Sakhi
Chand @ Prayag Mandal. It is also pointed out that the defence
has advanced different reasons for the lodgement of the case and
no connection has been shown between Sakhi Chand @ Prayag
Mandal and this witness.
20. Learned Additional Public Prosecutor further
submits that the plea of the defence that PW-2 and PW-3 who were
present with the deceased had not given telephonic information to
the informant about the occurrence would create doubt over their
presence is not fit to be accepted because in course of their cross-
examination, no question was put to these witnesses that whether
they were having mobiles with them, therefore, if they did not
make a call to the informant that alone cannot be said to be an
unnatural conduct. It has come in evidence that when the tractor
got punctured and it stopped near the place of occurrence then the
deceased along with two witnesses had gone to the village of his
bua (mother of Nirbhay Yadav-PW-1). On this point also, no
contradiction has been taken from the prosecution witnesses.
21. It is submitted that though PW-1 has been declared
hostile on the point of identification of the accused but he has
stated that when he was going to Kahalgaon by his motorcycle and
reached at Nawada More then he heard the sound of firing. He has
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further stated that he got frightened and stopped there, then he saw
that from the place of occurrence, six persons were fleeing away
by motorcycle and they were having hasua and gun in their hand.
When he went to the place of occurrence, he found that Kakku
Yadav was lying dead then he had given a mobile call to the father
of the deceased. He has stated to have given telephonic
information to the informant. He was also examined by the I.O. in
course of investigation. The prosecution cross-examined him
limited to the identification of the accused, however, when the
defence cross-examined this witness, he has denied the suggestion
that he had not seen the occurrence and he was not going by
motorcycle anywhere.
22. Learned Additional Public Prosecutor for the State
further submits that all incriminating materials which were brought
by the prosecution on record were brought to the notice of the
accused persons who have stated that they were implicated
because of the prior enmity. The evidence of PW-2 and PW-3 are
fully corroborated by the medical evidence.
23. So far as the appealant Chamolal Mandal @
Chamulal Mandal @ Chamaklal Mandal is concerned, the learned
APP submits that one Laxman Yadav (PW-3), who is an
eyewitness of the occurrence, has stated that Manoj Tanti and
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Chamolal Mandal were saying to cut the neck and bring it. It is,
however, not contested that so far as PW-2 is concerned, he has
not taken the name of Chamolal Mandal @ Chamulal Mandal @
Chamaklal Mandal and the chance witness (PW-4) has also not
taken the name of this appellant. It is submitted that in his
fardbeyan the informant has stated that he had informed about the
occurrence to Budhu Chak Police Station saying that his son
Kakku Yadav had been murdered near Nawada More and he was
going to the said place. The informant claimed that he requested
the said police officer to come to his house. It is submitted that the
place of occurrence, in this case falls within the jurisdiction of
Antichak Police Station, therefore, the fardbeyan of the informant
was recorded by S.I. Rajesh Kumar (PW-11) of Antichak Police
Station on the same date of occurrence at 14:00 Hrs. While cross-
examining the informant (PW-5), the defence did not invite his
attention about the information given by him to Budhu Chak
Police Station, moreover this Court finds that the informant has
well explained in his fardbeyan what he has informed to Budhu
Chak Police Station. This has not been questioned by the defence.
Consideration
24. Having heard learned counsel for the appellants and
learned Additional Public Prosecutor for the State as also on
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perusal of the records, we find that the informant (PW-5) is the
father of the deceased. He is not an eyewitness of the occurrence.
He got information about the alleged occurrence from his bhagina
Nirbhay Yadav (PW-1) on 07.11.2017 at 12:10 Hrs. The
information was given over the telephone and thereafter he
reached the place of occurrence near Nawada More. He found that
his son Kakku Yadav @ Nilambar Yadav was lying dead in the
field at the edge of the road. He was informed by Laxman Yadav
(PW-3) about the occurrence. Laxman Yadav disclosed to him the
names of four accused persons who had come at about 11:45 AM.
Gajadhar Kapri put a towel/gamcha in the neck of Kakku Yadav
and took him down to the road whereafter Jaikant Mandal shot at
the thigh of Kakku Yadav, Gajadhar Kapri fired at the temporal
region of the deceased and then second firing was again done by
Jaikant Mandal whereafter Kakku Yadav had fallen down on the
earth and after he fell down, the brother-in-law of Gajadhar Kapri
cut the neck of the deceased by a dabiya and Anjani Mandal also
cut the neck by an axe. On hulla, the accused persons fled away on
two motorcycles, three on each of the motorcycles. It is stated that
two persons were already there on the motorcycle who were (i)
Manoj Tanti; and (ii) Chamolal Mandal. The fardbeyan of Sitaram
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Yadav (PW-5) has been recorded by Rajesh Kumar, Sub-Inspector
of Police, which has been marked Exhibit ‘2/2’.
25. On the basis of the said fardbeyan, FIR was lodged
giving rise to the present case on 07.11.2017 at 5:00 PM. From the
formal FIR, it appears that information with regard to the
occurrence was received in the police station at 12:15 PM. The
village of the informant is at a distance of 4-5 km only from the
place of occurrence.
26. From the records, it appears that the four appellants
of this case were charged for the offences under Sections 302/149
IPC and Section 27 of the Arms Act.
27. From the evidences available on the record, it
appears that Saudagar Mandal (PW-2) and Laxman Mandal (PW-
3) are the two labourers who claimed that they were present with
the deceased at the time of occurrence. They had loaded the tractor
and had left with the deceased in the morning. PW-2 has stated
that at the time of occurrence, he was on the tractor at Nawada
More and he had lifted the tractor for placing the wheels, in the
meantime, Gajadhar Kapri came and put a towel in the neck of
Kakku and slammed him down and thereafter, Jaikant Mandal
fired on Kakku which hit on his thigh, Gajadhar shot at the
temporal region of the deceased and Rajiv Mandal cut the neck by
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a hasua. He has stated that Anjani Mandal had assaulted by
tengari on the backside of the neck. Being frightened of the same,
he fled away whereafter, when the public came, then he also
reached. His statement was recorded by police. In his cross-
examination, he has stated that when the accused persons came
armed with pistol, then he got frightened and he put himself
beneath the tractor. The accused Gajadhar had put towel on the
neck of the deceased and took him down the pitch road, the said
place is about five feet deep, he had seen the occurrence from
beneath the tractor. He has stated that he had no litigation with
Rajiv Mandal and he was not aware that there was any litigation
between Kakku and Gajadhar. He has further stated in his cross-
examination that he was working with Kakku for the last two years
and on the date of occurrence, he had gone to the place of Kakku
at 6:00 AM, Kakku was himself driving the tractor. They had
reached Nawada More at about 9:00 AM. They were going to
Kahalgaon by the tractor and maize and raicha (mustard) were
loaded on the tractor. The tractor had got punctured at a distance of
about one rope before Nawada More. The plot is just adjacent to
the edge of the road which was parti and ploughed. There were
signs of pulling away of the deceased in the field.
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28. PW-2 has further stated in his cross-examination that
after the occurrence police had brought him, Laxman and Chhatu
to the Police Station where papers were prepared and his thumb
impression were taken. He denied this suggestion of the defence
that before police he had stated that at the time of occurrence, he
was at Nawada More near the tractor. He also denied the
suggestion that he had made statement before police that at the
time of occurrence, he had put the tractor in lifted condition with a
jack. He denied the suggestion that because he was working with
Kakku, therefore he was falsely deposing. This witness did not
identify Chamolal Mandal. The evidence of the I.O. (PW-11)
would show that he had proved the endorsement made on the FIR
and the signature of the informant and witness Laxman Yadav and
Chhatu Mandal. At his instance, Exhibit ‘2’, Exhibit ‘2/1’ and
Exhibit ‘2/3’ had been marked. The formal FIR has been marked
as Exhibit ‘4’. He had himself investigated the case. PW-11 had
conducted the inspection of the place of occurrence and prepared
the inquest report. He has proved the inquest report which has
been marked Exhibit ‘5’.
29. PW-11 has stated that at the place of occurrence he
had seized empty cartridge on the ‘base’ of which BMS and KF
were written. On the ‘base’ there was a sign of fired tip. He had
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seized one blue, yellow and red color slipper of the left leg, he had
seized blood stained soil and one black color Samsung mobile with
SIM Number 7282851776 and SIM Number 9973249885. PW-11
has proved the seizure list (Exhibit ‘6’). He has also given the
boundary of the place of occurrence. In paragraph ‘3’ he has stated
that in the east of the place of occurrence, there is house of Prabhu
Yadav and the place of occurrence is at a distance of 50 meter
from the house of Prabhu Yadav, at the west end tractor was
standing. He had prepared the najri naksha of the place of
occurrence which has been marked Exhibit ‘7’. As regards the
statements made by Saudagar Mandal in paragraph ’15’, this
witness has stated that in course of investigation, he had not stated
that he was at Nawada More near the tractor. He had not stated that
the tractor was kept lifted on the jack and he had not stated that
Kakku was put down by a towel/gamcha rather this witness had
stated before the I.O. that Gajadhar Kapri, Jayant Mandal, Rajiv
Mandal and Anjani Mandal came and they pulled away Kakku
down the road.
30. It is evident from the statement of PW-2 and the
statement of the I.O. (PW-11) that so far as presence of PW-2 at
the place of occurrence is concerned, no doubt has been created by
the defence. There is a minor discrepancy in the statement of PW-2
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as regards the position of the tractor but it is evident that the
tractor was standing at a distance of only 50 meter from the house
of Prabhu Yadav and the plot in which the killing had taken place
was just adjacent to the road. PW-11 has duly proved the place of
occurrence and no doubt has been created by the defence with
regard to the place of occurrence as disclosed by the prosecution.
31. Laxman Yadav (PW-3) is another eyewitness of the
occurrence. This witness has also stated that they were trying to
lift the trailer with the help of jack, in the meantime, Gajadhar
Kapri put gamcha in the neck of Kakku and thereafter all the four
accused persons took Kakku to the side of the road. He has stated
that Jaikant shot at Kakku which hit his leg whereafter Kakku fell
down then Gajadhar Kapri shot at his kanpati, Jaikant Mandal shot
at his chest and then Anjani Mandal and Rajiv Mandal cut the neck
by hasua. This witness has further stated that Anjani and Chamolal
Mandal were saying to bring the chopped neck of Kakku. He is
one of the seizure list witnesses and has proved his signature on
the seizure list which has been marked Exhibit ‘1’. Again this
Court finds that the date, time, place and manner of occurrence as
stated by PW-3 is consistent with the evidence of PW-2. His
statement that he had assaulted Jaikant by iron rod has been
contradicted by the I.O. that he had not stated so in course of
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investigation but that would not result in disbelieving the witness
as a whole. In India, the legal maxim ‘Falsus in uno, falsus in
omnibus’ i.e. false in one thing, false in everything does not apply
as a rule of law in India. To this Court, it appears that the
eyewitness testimony of PW-2 and PW-3 are not in doubt. The
defence is not able to draw any material contradiction in the
evidence of PW-2 and PW-3. Once again referring to the evidence
of PW-11, this Court finds that the defence has not taken any
contradiction from the I.O. with regard to the material part of the
evidence of PW-3. His presence at the place of occurrence and the
manner of occurrence as stated by him remained intact.
32. Ramdhari Yadav (PW-4) is a chance witness. He has
stated that he was going to his home in Taufil Diyara and when he
reached near Nawada More, he found that four persons had caught
Kakku Yadav and one person was sitting on the bike whose name
was Manoj Tanti. He has identified Jaikant Mandal, Gajadhar
Mandal, Anjani Mandal and Rajesh Mandal. He has stated that
Jaikant Mandal shot at first which hit Kakku at his thigh, the
second fire was done by Jaikant which hit on the chest of the
Kakku and Gajadhar Mandal shot at the kanpati whereafter Anjani
and Rajesh assaulted Kakku by kulhari and hasua. Manoj Tanti
was saying to bring the chopped neck of the deceased. His
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statement was recorded before the I.O. In his cross-examination,
he has stated that he was standing at a distance of 25 feet from the
place of occurrence and the plot is three feet down from the road.
He is not related to Kakku Yadav and he was not a friend of Kakku
Yadav, he was not even on visiting terms with Kakku Yadav. His
attention was drawn towards his previous statements made before
police, however, this Court finds that PW-11 has contradicted PW-
5 only on a trivial issue that he had not stated in course of
investigation that four persons were hanging with the deceased.
PW-11 has stated that the witness had stated before him in course
of investigation that Gajadhar Kapri had put a towel in the neck of
Kakku Yadav and took him down to the road and the accused
Jaikant Mandal present at that place shot at Kakku whereafter
Gajadhar Kapri had also shot at Kakku.
33. The informant has been examined as PW-5. He is
not an eyewitness of the occurrence but he has deposed as to the
circumstances which were present at the place of occurrence when
he reached there. He has stated in his cross-examination that he
and his son Kakku Yadav were convicted in the murder case of
Santosh Kumar. PW-6, PW-7, PW-8 and PW-9 have been declared
hostile.
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34. Dr. Rajiv Ranjan (PW-10) was posted at Jawaharlal
Nehru Medical College and Hospital, Bhagalpur on 07.11.2017, he
conducted postmortem on the dead body of Kakku Yadav. He
found the following injuries:-
(1) One sharp cut 1″ x 1/8″ was present over top of left
middle finger.
(2) One sharp cut wound 3″ x 1/8″ was present over left
forearm
(3) One sharp cut wound with inverted margin 3″ x 1/2″ x
muscle deep was present over left surface of upper part of
neck behind left ear.
(4) One blackened, burned hand like parchment area 3″ x 2″
was present over anterior surface of left upper chest wall.
(5) One wound of entry with inverted margin and blackened
margin 1/4″ x 1/4″ prime prime was present over lateral
surface of mid of right thigh. Bullet was pierced muscle and
exit through wound 2″ x 1″ with everted margin over medial
surface of right thigh.
(6) One wound of entry 1/4″ x 1/4″ with inverted and
blackened margin was present over left side of omipetal bone
behind left ear. Bullet pierced brain matter base of skull and
breaked zygomatic bone and exit through wound 1/2″ x 1/2″
with everted margin over right surface of face and situated 1½
anterior to right ear.
(7) One wound of entry 1/4″ x 1/4″ with inverted and
blackened margin was present over anterior surface of right
chest wall. 4″ above right nipple. Bullet pierced subcutaneous
tissue and exit through wound 1/2″ x 1/2″ over right armpit.
In his deposition, PW-10 has stated that all the above injuries
were antemortem. Injury nos. 1, 2 and 4 were simple but injury
nos. 3, 5, 6 and 7 were grievous and dangerous to life in ordinary
course of nature and caused by sharp heavy weapon and firearm
such as dabiya and axe. Time since death has been assessed
between six to twelve hours from time of postmortem
examination. Postmortem report has been proved as Exhibit ‘3’. In
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his cross-examination, he has stated that he had not mentioned
bullet because he had not found the bullet into the body and further
he had given the time of postmortem as 8:40 PM in his report. He
denied the suggestion that he had conducted the autopsy in
unscientific manner and his report is collusive.
35. The I.O. (PW-11) has stated that in course of
investigation he had recorded the statement of the prosecution
witnesses who supported the prosecution case. He had sent the
dead body for postmortem which he had received. He had obtained
the criminal antecedent of Gajadhar Kapri and Jaikant Mandal
which is mentioned in paragraph ’63’ and ’64’ of the case diary.
He has proved the same as Exhibit ‘8’. On perusal of Exhibit ‘8’ it
appears that Gajadhar Kapri has got as many as nine criminal
antecedents including cases under Sections 386/ 323/ 34 and cases
under Sections 302/201/34 IPC and Section 27 of the Arms Act.
These cases have been lodged and he has been chargesheeted in
these cases which are during the period of 2005 to 2019. The
criminal antecedent of Jaikant Mandal has been mentioned in
paragraph ’64’ which is part of the evidence and according to this,
the appellant Jaikant Mandal has got five criminal antecedent of
similar kind.
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36. Sanjeev Kant (PW-12) was the Deputy
Superintendent of Police in Police Centre, Bhagalpur on
27.03.2018. The seized empty cartridge was produced before him
for physical examination. He has examined the Exhibit ‘A’ which
is a 315 mm bore empty cartridge on the base of which AF 8mm
was inscribed and there was sign of firing pin on the base of it. He
had given the report on Exhibit ‘A’ which has been marked Exhibit
’10’.
37. Chiranjeev Lal Tiriya (PW-13) has proved three
material exhibits which were in sealed conditions in two envelopes
and one bag of cloth which were duly sealed. In the cloth bag
M.R.-05/17 was written and there was a brass fired cartridge of
rifle on the base of which BMM and KF was written. In the second
material exhibit, one slipper and in the third material exhibit, one
black colour Samsung mobile phone were found which were
marked material exhibit ‘2’ and material exhibit ‘3’ respectively.
38. This Court further finds that the materials brought by
the prosecution in course of trial were brought to the notice of the
accused persons-appellants who denied the same and pleaded
innocence. Accused Rajesh Mandal @ Rajeev has stated that when
Kakku Yadav and Sitaram Mandal were ploughing the field of
Santosh Yadav then he had opposed the same. Similar statement
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has been given by Gajadhar Kapri, Chamolal Mandal and Jaikant
Mandal.
39. We have reappraised the entire evidences available
on the record and have also gone through the judgment of the
learned trial court. To this Court, it appears that so far as the
complicity of the three appellants Gajadhar Kapri, Jaikant Mandal
and Rajeev Mandal are concerned, the prosecution witnesses
particularly the eyewitnesses are consistent about their role in the
alleged occurrence. The prosecution has not been able to create
any dent in the evidence of PW-2 and PW-3 who are the
eyewitnesses of the occurrence. The date and time of occurrence as
well as the place and manner of occurrence have been duly proved
by the prosecution. The inquest report (Exhibit ‘5’) and
postmortem report (Exhibit ‘3’) are fully corroborating the ocular
evidence of PW-2 and PW-3. There is no iota of doubt that the
injuries inflicted on the body of the deceased were caused with
intention and knowledge of having such bodily injury which
resulted in the death of the son of the informant.
40. The impugned judgment and order of the learned
trial court insofar as it relates to Gajadhar Kapri, Jaikant Mandal
and Rajesh Mandal are concerned, this Court finds no reason to
interfere with the same.
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41. This Court would, however, record that so far as the
complicity of appellant Chamolal Mandal is concerned, the
prosecution is not able to prove the charges against him beyond all
reasonable doubts. In the fardbeyan the informant has stated that
when he reached at the place of occurrence, he was told about the
occurrence by Laxman Yadav (PW-3). In the fardbeyan, only four
persons have been named who had allegedly committed the
occurrence. Chamolal Mandal is not named in the fardbeyan.
42. So far as Saudagar Mandal (PW-2) is concerned, in
his examination-in-chief he has not named Chamolal Mandal. It is
Laxman Yadav (PW-3) who has stated in his examination-in-chief
that Manoj Tanti and Chamolal Mandal were asking to bring the
chopped neck of Kakku. As regards this statement he was cross-
examined on behalf of Chamolal Mandal. In his cross-examination
his attention was drawn towards his statements made before the
I.O. in which he had not stated that Chamolal Mandal was asking
to bring the chopped neck of the deceased. PW-3 denied the
suggestion but then the I.O. (PW-11) has stated that the witness
Ramdhari Yadav had not stated before him that Manoj was asking
to bring the chopped neck of Kakku Yadav. At this stage, this
Court would notice that Ramdhari Yadav (PW-4) has also not
named Chamolal Mandal in his examination-in-chief. In the
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opinion of this Court so far as the guilt of Chamolal Mandal is
concerned, it has not been duly proved by the prosecution beyond
all reasonable doubts, hence the judgment of conviction and order
of sentence as regards Chamolal Mandal @ Chamulal Mandal @
Chamaklal Mandal cannot sustain the test of law.
43. In result, Cr. Appeal (DB) No. 654 of 2023 and Cr.
Appeal (DB) No. 686 of 2023 are dismissed. The appellants
Gajadhar Kapri @ Gajadhar Mandal, Jaikant Mandal and Rajesh
Mandal @ Rajeev would undergo the remaining sentence.
44. Cr. Appeal (DB) No. 692 of 2023 (Chamolal Mandal
@ Chamulal Mandal @ Chamaklal Mandal) is allowed. The
impugned judgment as regards this appellant is set aside. The
appellant is already on bail, he and his sureties are discharged from
the liability of their bail bonds.
45. A copy of the judgment of this Court together with
the trial court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 01.07.2025 Transmission Date 01.07.2025