Naresh Bhuiyan v. State Of Bihar — 1999 DIGILAW 888 (PAT)

Judgment D.N.Prasad, J. 1. This death reference case and criminal appeal arise out of the same judgement and order passed by Sri Dhruvdeo Pandey, 3rd Addl. Sessions Judge, Dhanbad in Sessions Trial no.29/95 convicting the appellant under sections 302/201 IPC and sentenced him to death for the offence under section 302 IPC and also sentenced him for four years rigorous imprisonment under section 201 IPC. The learned Sessions Judge has made reference of the case for confirmation of the death sentence. The case of the prosecution in brief as stated that the informant Rukwa Bhuin was sleeping in the night of 30.6.94 at her Darwaza after taking meal with her son Birju (deceased). Her husband Rajendra had gone to his duty. It is further alleged that the appellant, Naresh Bhuiyan came at her Darwaza two times at about 10 P.M., but he left. Thereafter she, alongwith her son, slept there. Her husband, Rajendra came in the night at about 1 A.M. from the duty and she was awakened. She did not find her son, Birju, aged about eight years at that place and she enquired about her son from her husband. Thereafter she started searching her son in her house and in the house of her sister, Chamelwa, but her son, Birju was not traced and she, alongwith her husband and sister started searching her son. It is further alleged that in the morning at about 7.30 A.M. one Sitwa, the daughter of her sister who went for easing in the side of bush, came and informed that the dead body of Birju is lying in the ditch. Then they rushed to the spot and found the dead body of Birju whose neck was found to be cut. According to her, one knife and one blanket were found lying at the place of occurrence. It is also alleged that the deceased, Birju and Ishwariya, son of Naresh Bhuiyan (appellant) were playing in the last month of Kartik when Ishwariya sustained injuries in her eyes which was caused due to throwing arrow by Birju and Naresh was demanding money for treatment of the eyes of Ishwariya and for which Naresh, the appellant was also threatening for dire consequences. It is further alleged that Naresh Bhuiyan the appellant committed murder of her son, Birju out of vengeance and the dead body was thrown in the ditch. It is further alleged that Naresh Bhuiyan the appellant committed murder of her son, Birju out of vengeance and the dead body was thrown in the ditch. The FIR was lodged against the appellant for the offences under section 302 and 201 IPC and the police investigated into the case and submitted the chargesheet against the appellant. 2. The case was committed to the court of sessions. The appellant appeared before the Sessions Court and the charges under section 302 and 201 IPC were framed to which the appellant denied the charges. The witnesses were examined in the lower court. After hearing both sides and considering the evidence on record the learned court below convicted the appellant for the offences under section 302 and 201 IPC and sentenced him in the manner aforementioned. 3. Being dissatisfied with the judgement of conviction and sentence, the appellant preferred this appeal on the ground that the learned Sessions Judge committed error in convicting the appellant without any legal evidence. It is also claimed that there is no eye-witness to the occurrence and the whole prosecution case has been concocted in order to harass the appellant out of enmity. Neither the said blanket nor the knife belonged to the appellant. 4. The sole question arises for determination as to whether the prosecution has been able to establish the charge against the appellant beyond all reasonable doubts. 5. Before dealing with the evidence on record, I would like to mention at the very outset that the whole prosecution case rests upon the circumstantial evidence as there is no eye-witness to the occurrence. It is evident that the dead body of Birju was found lying in the ditch and it was detected in the next morning at about 7.30 A.M. 6. Altogether seven witnesses have been examined in this case from the side of the prosecution. Of whom P.W.7 is the doctor who held the post-mortem on the dead body of Birju. 7. P.W.1, Naresh Bhuiyan came to know about the death of Birju in the morning from his daughter, Sitwa who disclosed that the dead body of Birju is lying near the bush. According to him the blanket which was lying near the bush belonged to Naresh Bhuiyan, the appellant. He deposed that Naresh Bhuiyan, the appellant, used to threaten to take revenge for the injury caused in the eyes of ishwariya. According to him the blanket which was lying near the bush belonged to Naresh Bhuiyan, the appellant. He deposed that Naresh Bhuiyan, the appellant, used to threaten to take revenge for the injury caused in the eyes of ishwariya. He admitted in his cross-examination that he could not meet with Rajendra and his wife at the place of occurrence. He further claimed in para 1 of his cross-examination that he had seen Naresh the appellant coming to the house of Rajendra at 6/7 P.M. According to him, there was no Panchayati held in respect of the injuries caused in the eyes of Ishwariya, or any information was given to the police station in this respect. He further stated that Naresh Bhuiyan used to demand money for the said injuries from Rajendra. 8. P.W.2, Sitwa stated that she had seen the dead body of Birju in the morning. She also found one blanket of brown colour and one knife lying at the place of occurrence and she had informed her father. She admitted clearly that she was alone at the relevant time. 9. P.W.3 Peru Bhuiyan stated that he came to know from Sitwa about the death of Birju and thereafter he had visited the place of occurrence and saw the dead- body of Birju. According to him, Ishwariya sustained injuries in the eyes due to throwing arrow by Birju and for which there was dispute. He is the witness of inquest report as well as the seizure list and proved his signature Exts. 1/1, 1/2, 1/3, 1/4 and 1/5. He had visited the place of occurrence after ten minutes of the information and saw the dead body of Birju. He clearly deposed in paragraph 8 of his cross-examination that he was called to the police station where he put his signature on the said seizure list. He also proved the material Ext. VI but he admitted that such type of knife is also available in the market and he had not signed over the said knife. The police did not seal the said knife in his presence. 10. P.W.4 Chamelwa Devi also stated that she came to know from her daughter, Sitwa about the death of Birju in the next morning and she rushed to the spot and the dead body was lying in the bush. The police did not seal the said knife in his presence. 10. P.W.4 Chamelwa Devi also stated that she came to know from her daughter, Sitwa about the death of Birju in the next morning and she rushed to the spot and the dead body was lying in the bush. She further stated that she was sleeping in her Angan wheras her sister, Rukwa Bhuin was sleeping with her son, Birju and Naresh Bhuiyan, the appellant came to Angan twice in the said night. She further deposed that Naresh came at 10 P.M. next time and he also sat there and prepared Khaini and ate the same and he also gave her khaini and thereafter Naresh left the place. She also stated that Rajendra came at about 1.30 A.M. in the night from duty and they started searching Birju. She visited the house of Naresh in the night to search out Birju and also enquired about Birju, but Naresh told her that he had not brought Birju from there. This statement clearly goes to indicate that Naresh, the appellant, was present in his house in the said night when this witness, P.W.4 visited his house. She deposed in her cross-examination that Sitwa informed in the morning about the death of Birju to her father and she also rushed to the place where the dead body was lying. 11. P.W.5, Rajendra Bhuiyan, the father of the deceased stated that he came to his house in the night from duty and he was taking meal when he found that Birju was not there and thereafter he enquired about Birju from his wife, Rukwa. He started searching Birju in the night, but he could not be traced and he came to know about the death of Birju in the morning from Sitwa. According to him, the appellant, Naresh used to demand money for the treatment of the eyes of his son and he also got him treated but the injuries of the eyes could not be recovered and Naresh Bhuiyan the appellant was demanding money but he had not paid the money to him. He admitted in his cross-examination that he had not gone to the side of the said bush to search out of his son and the said bush is situated at a distance of 200 feet from his house. He admitted in his cross-examination that he had not gone to the side of the said bush to search out of his son and the said bush is situated at a distance of 200 feet from his house. He deposed in para 15 that other persons of his Mohalla are also possessing blankets but he cannot say the names of the said persons. He further stated that the appellant used to wrap the said blanket and sometimes he also used the said blanket as Chadar for sleeping but admittedly the occurrence took place in the month of June when the temperature remains high in general, particularly in the District of Dhanbad. According to him, the appellant used to take the said blanket to his duty and also used to wrap the same there but such story does not appear to be convincing when admittedly the temperature remains high in the month of June. 12. P.W.6, Rukwa Bhuin, the informant stated that she was sleeping in the night alongwith her son Birju. She further stated that the appellant Naresh also came there who was in the drunken state. ;She further deposed that her husband returned from the duty at 1 A.M. in the night and he enquired about Birju. Thereafter she went inside the house to search out Birju but Birju was not traced in the night. She came to know in the morning from Sitwa that Birju had been murdered. Thereafter she rushed to the site and found the dead body of Birju. She also found there a blanket and a knife. According to her it was summer day and the house of Naresh Bhuiyan the appellant is also situated near her house. She further deposed that Naresh Bhuiyan came there first time at 8 P.M. when she could not cast any suspicion and again Naresh came there at 10 P.M. and shedid not ask anything. She also remained silent about this fact. The said blanket and knife have not been produced in the court before the witnesses. 13. P.W.7, Md.Ishak, the Investigating Officer, claimed to have investigated into the case and also visited the place of occurrence. He prepared the inquest report, Ext.3 and recorded the evidence of witnesses. He also seized one blood-stained blanket and one blood-stained knife and prepared seizure list, Ext.4. 13. P.W.7, Md.Ishak, the Investigating Officer, claimed to have investigated into the case and also visited the place of occurrence. He prepared the inquest report, Ext.3 and recorded the evidence of witnesses. He also seized one blood-stained blanket and one blood-stained knife and prepared seizure list, Ext.4. He proved the said blanket in the court, the material Ext.l. He did not enquire about the possibility if other persons are also possessing such type of brown blanket. He further admitted after verifying the said blanket in the court that it is not brown blanket and there is no blood stain over the said blanket. 14. P.W.8, Dr. D.K.Dhiraj held the post mortem on the dead body of Birju and found the following ante mortem injuries: (i) "incised wound 3 1/2" x 2" bone deep with enduce of at least three strokes seen in the middle portion of the front of neck cutting soft tissue big vessel trachea gullet survical 3 and 4 with joint and body of 3 survical vertebra." (ii) "incised wound 2 1/2" x 1" muscle deep lower part of the back of neck. The neck was connected with the body with tag of skin and subcuta tissue 1" wide on the back on right side spinal chord was cut. Internal injuries were of pale. Both sides of the heart and urinary bladder were empty. The stomach confined approximate to 50 CC partially." The death resulted from the shock due to aforementioned sharp cutting injuries. He proved the post-mortem report, Ext.5. He stated in his cross-examination that no dust mark was found on the dead-body. No any other witness from the side of the prosecution has been examined and as such the appellant/accused was examined under section 313 Cr.P.C. and he denied the allegation. He denied specifically in his statement under section 313 Cr.P.C. as to be the owner of the said blanket. Except the family members of two sisters no any independent witness has been examined from the side of the prosecution and there is nothing except the circumstantial evidence. 15. None of the witnesses examined on behalf of the prosecution is the eye-witness of the occurrence and the whole prosecution case based upon the circumstantial evidence. There is no direct or specific evidence to establish that the said blanket and knife found near the deadbody belonged to the appellant. 15. None of the witnesses examined on behalf of the prosecution is the eye-witness of the occurrence and the whole prosecution case based upon the circumstantial evidence. There is no direct or specific evidence to establish that the said blanket and knife found near the deadbody belonged to the appellant. The blood stain of the knife was examined by the chemical examiner who proved the group of blood A B but the said blood has never been tallied with the blood of the deceased. No any evidence has been cited from the side of the prosecution to establish that the blood of the deceased comes under the group of A B. It is significant to note that the blood of the earth could not be determined by the chemical analyst. It is consistently stated by the witnesses that the blanket found near the dead body was brown in colour but the I.O. (P.W.7), before whom . the said blanket was produced in the court for identification said in clear terms that the blanket was not brown in colour and there was no blood stain in the said blanket. Thus, this statement itself makes the whole prosecution case very doubtful. Moreover, the said blanket has never been identified by any of the witnesses in the court. 16. As noticed above P.W.4 admitted in para 2 that he had rushed to the house of Naresh/appellant in the said night at the time of searching of Birju, the deceased when the appellant/Naresh denied to bring Birju which also goes to prove without doubt that Naresh/appellant was present at the relevant time in his house which proves about his innocence and throw a light of suspicion in respect of his involvement. The natural conduct of the person, who is said to have committed such offence will be that he would try to abscond from the scene of occurrence after committing the offence, but it appears from the instant case that the appellant/Naresh was found present in his house even after the occurrence. 17. The natural conduct of the person, who is said to have committed such offence will be that he would try to abscond from the scene of occurrence after committing the offence, but it appears from the instant case that the appellant/Naresh was found present in his house even after the occurrence. 17. The prosecution has come with a motive behind the occurrence claiming that 9/10 months ago there was an occurrence by which the son of the appellant sustained injury in his eyes with broom stick but admittedly no any information was given either to the police station or to the panchayat in this respect nor any document has been produced to show that the husband of the informant had ever got the son of the appellant treated by any doctor. In this view of the matter, the motive in the manner as assigned also appears to be very shaky and weak which cannot be relied upon without any cogent evidence. Moreover, obviously there is no eye witness of the occurrence and there is no cogent evidence to cbnnect the appellant for the alleged offence. 18. It is well settled that the circumstantial evidence must satisfy three tests for the conviction. (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly, established. (ii) Those circumstances should be a definite tendency unerringly pointing towards the guilt of the accused. (iii) The circumstances taken cumulatively should form a chain so completed that there is no scope from the conclusion that with all human probabilities the crime was committed by the accused and none else. 19. In the instant case, there is no eye witness of the occurrence nor any definite evidence coming forward to infer that the crime actually and definitely committed by the appellant. As it is discussed above that the appellant denied to be the owner of the said blanket. There is definite case of the prosecution that brown blanket was found at the place of occurrence, whereas the I.O., before whom the said blanket was produced in the court, said that the said blanket was not brown in colour and there was no blood stain over the said blanket. There is definite case of the prosecution that brown blanket was found at the place of occurrence, whereas the I.O., before whom the said blanket was produced in the court, said that the said blanket was not brown in colour and there was no blood stain over the said blanket. Other witnesses have not identified the said blanket in the court as admittedly the said blanket was not produced in the court to be identified by the witnesses which makes the whole story of the appellants ownership suspicious. The blood stain of the knife has never been proved to be the blood of the deceased nor the said knife was ever produced in the court for indentification. It is a cardinal principle of criminal jurisprudence that the circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt. But the instant case does not come under the said parameter. 20. The learned counsel for the appellant submitted that the witnesses examined by the prosecution are own relative and there is no cogent evidence produced to show that the appellant had ever threatened. It is further argued that the said blanket alleged to have been found in the side of the dead body has never been brought in the court in presence of the witnesses examined rather for the first time the said blanket brought in the court when the I.O. was examined on behalf of the prosecution as well as the said blanket has never been sent to the analyst for the examination of the blood, if any. So, the whole story of the prosecution becomes suspicious and doubtful which cannot be relied upon and the evidence collected by the prosecution does not warrant the conviction of the appellant. After carefully considering the submissions and the evidence which have been brought on the record, as already noticed above, I find great force and substance in the submissions of the learned counsel of the appellant. 21. In view of the discussions held above, it is apparent that there is no eye witness of the occurrence and there is also much contradiction as regards to the said blanket when the I.O., P.W.7 admitted in his evidence that the said blanket was not brown in colour and there was no blood stain over the same. 21. In view of the discussions held above, it is apparent that there is no eye witness of the occurrence and there is also much contradiction as regards to the said blanket when the I.O., P.W.7 admitted in his evidence that the said blanket was not brown in colour and there was no blood stain over the same. Thus, the circumstances from which an inference of guilt is said to be drawn has not been cogently and firmly established in the instant case and the circumstances taken for a chain has also not been completed. It is settled that each of the circumstances relied upon must be firmly established and the chain of the proved circumstances must also be completed but obviously the circumstances relied upon by the prosecution in the instant case have not been established conclusively and the conviction of the appellant cannot be sustained on any hypothesis or vague story. Mere seizure of the blanket and knife from the place of occurrence will definitely not lead to irresistible inference that the appellant committed murder when admittedly there is no cogent evidence that the appellant is the owner of the said articles. The blood stain of the knife has also not been tallied with the blood of the deceased, nor the blood of the deceased was examined by the chemical analyst. The said chemical analyst, who is said to have examined the blood stain of the knife has also not been examined by the prosecution in the instant case. 22. Having regard to the whole facts and circumstances of the case and also considering the aforementioned features it is evident that the prosecution has utterly failed to establish the charge against the appellant beyond all reasonable doubts. In the result, I find that the learned court below has committed error in convicting the appellant and as such the judgement of conviction and sentence is fit to be set aside, 23. In view of my findings on the point for decision, I set aside the conviction and sentence passed by the impugned judgement against the appellant and direct that the appellant be acquitted of the offences under section 302 and 201 of the Indian Penal Code. The reference for confirmation of death sentence is rejected. The criminal appeal is accordingly allowed. The appellant, Naresh Bhuiya shall be released forth with, if not required in any other case. The reference for confirmation of death sentence is rejected. The criminal appeal is accordingly allowed. The appellant, Naresh Bhuiya shall be released forth with, if not required in any other case. R.A.Sharma, J. 24 I agree.