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2002 DIGILAW 219 (JHR)

Balbhadro Biruli v. State of Bihar

2002-02-19

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2002
Judgment Lakshman Uraon, J.-This Criminal Appeal has been prefered against the judgment and order of conviction and sentence dated 17th February, 1994, passed by the learned 1st Additional Sessions Judge, Chaibasa, in Sessions Trial No. 44 of 1992, convicting all the appellants under Section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life. 2. The prosecution case, as per the Fardbeyan of the informant Mangal Singh Biruli (P.W. 9), is that on 5th August, 1991 at about 9.00 p.m. while he was at his home, he heard the cry of Kandey Biruli to save him. Then the informant informed Morang Singh Biruli, elder brother of Kandey Biruli. Morang Singh Biruli (P.W. 5) and the informant Mangal Singh Biruli (P.W.9) along with all the female members of his family, rushed towards Kandey Biruli. They saw Kandey Biruli fallen down. They also saw that appellant Duka Biruli, Balbhadro Biruli, Daso Blruli, Manki Biruli, Gere Biruli and the Lepe Biruli were assaulting Kandey Biruli, when the informant and others went there, all the assailants fled away. They saw Kandey Biwli dead, having sustained bleeding injuries on the forehead and abdomen. The alleged occurrence took place only due to ploughing of lands. Lepe Biruli was juvenile and hence was tried separately by the Juvenile Justices Court. The present five appellants were charged under Section 302/34 of the Indian Penal Code. 3. The prosecution examined altogether twelve witnesses in order to bring home the charges against the appellants. P.W. 1 (Satranjan Chatterjee) is a formal witness, who has proved the formal First Information Report (Ext. 1). P.W. 2 (Kushal Biruli) is hearsay witness, who is father of deceased Kandey Biruli and uncle of the informant (P.W. 9). P.W. 3 (Jema Kui), mother of the deceased, is also hearsay witness. P.W. 4 (Kadma Kui) is a tendered witness. P.W. 5 Maran Singh Biruli, elder brother of deceased Kandey Biruli, is also hearsay witness. P.W. 6 (Jhingi Kui), wife of P.W. 5 (Maran Singh Biruli), is also hearsay witness. P.W. 7 (Kamla Kui) and P.W. 8 (Mirabali Kui) both are also tendered witnesses. P.W. 9 (informant) is the elder brother of the deceased Kandey Biruli. P.W. 10 (Chamara Manda) is hearsay witness whereas P.W. 11 (Dr. P.W. 6 (Jhingi Kui), wife of P.W. 5 (Maran Singh Biruli), is also hearsay witness. P.W. 7 (Kamla Kui) and P.W. 8 (Mirabali Kui) both are also tendered witnesses. P.W. 9 (informant) is the elder brother of the deceased Kandey Biruli. P.W. 10 (Chamara Manda) is hearsay witness whereas P.W. 11 (Dr. Arun Kumar Gupta) is the doctor, who conducted postmortem examination of the dead body of Kandey Biruli and the last witness P.W. 12 (Ram Pratap Singh) is the Investigating Officer of this case. 4. The learned court below has only relied on the evidence• of P.W. 9 (informant), who is the only eye witness of the alleged occurrence and considering the evidence available on record, found all the appellants guilty and convicted them and sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code. 5. The point for consideration is as to whether the findings of conviction and sentence, passed by the court below, can be sustained. 6. As we have mentioned above, the informant (P.W. 9) is the only eye witness of the alleged occurrence. In the fardbeyan (Ext. 2) the informant has stated that when he heard the voice of Kandey Biruli, calling to save him, then he (P.W. 9) informed the elder brother Morang Singh Biruli. Both of them along with other female members of the family rushed there and saw all the appellants assaulting Kandey Biruli. When the appellants saw the witnesses, then they fled away. Kushal Biruli (P.W. 2) is the father of the deceased Kandey Biruli. He has admitted that he had land dispute with the appellant Duka Biruli since long. He saw the dead body of his son in the house of Duka Biruli. He did not see as to who assaulted his son, resulting in his death. Jema Kui (Pw. 3), mother of the deceased, went to the place of occurrence, which was the house of appellant Duka where she saw the dead body of her son Kandey Biruli. The Munda of the village, namely, Chamra Munda (P.W. 10) was informed by her about the alleged occurrence, who came in the next morning. He (Pw. 10) also enquired and wrote the statements of this witness (P.W. 5), her husband (P.W. 2) and Mangal Singh Biruli (P.W. 9), on which he took their L.T.ls. The Munda of the village, namely, Chamra Munda (P.W. 10) was informed by her about the alleged occurrence, who came in the next morning. He (Pw. 10) also enquired and wrote the statements of this witness (P.W. 5), her husband (P.W. 2) and Mangal Singh Biruli (P.W. 9), on which he took their L.T.ls. Thereafter, Chamra Munda (P.W. 10) informed the Officer-in-charge and brought him to the village. Again the Investigating Officer recorded the statement of her husband (P.W. 2) and others on which they also gave their L.T.ls. P.W. 5 (Maran Singh Biruli), who is also one of the family members, has stated that when he went to the house of Duka Biruli, where the dead body of Kandey Biruli was lying, he saw that the appellants had already fled away. This witness had not informed the Munda of the village as to who had assaulted Kandey Biruli, P.W. 6 (Jhingi' Kui) is also liearsay witness. She has also stated that the accused had fled away. 7. On the other hand, P.W.9 (Mangal Singh Biruli) has claimed that all the appellants, who are of one family, were assaulting Kandey Biruli and he saw the occurrence. This part of evidence of Mangal Singh Biruli (P.W. 9) does not get support from the evidence of other witnesses, who are of his own family and who are closely related with the deceased. The village Munda, namely, Chamara Munda (P.W. 10) has stated that he was not informed about the alleged occurrence by the informant and his family members. He did not find any blood at the place, where the dead body of Kandey Biruli was lying. P.W. 11 (Dr. Arun Kumar Gupta) found three penetrating wounds on the upper part of abdomen, right hypochondrium, involving viscera and right nipple respectively. He also found two incised wounds on the right mandible and frontal bone. These injuries were sufficient to cause death in ordinary course of nature, which was due to shock and haemorrhage, as a result of the above injuries. P.W. 2 (Kushal Biruli) then informed by Mangal Singh Biruli that Kandey Biruli was murdered by these appellants, he went to the house of Duka Biruli along with other witnesses where he saw the dead body and saw appellants Balbhadro, Manki, Gere, Lepe and Daso, and deposed by him in paragraph no. 11 of his deposition. P.W. 2 (Kushal Biruli) then informed by Mangal Singh Biruli that Kandey Biruli was murdered by these appellants, he went to the house of Duka Biruli along with other witnesses where he saw the dead body and saw appellants Balbhadro, Manki, Gere, Lepe and Daso, and deposed by him in paragraph no. 11 of his deposition. He did not notice as to whether other villagers, except Mangal, Daso and Mora, were present there at that time or not. 8. The only evidence of eye witness Mangal Singh Biruli (informant P.W. 9) has been contradicted by himself, as deposited by him in his Fard-beyan. In the Fardbeyan, he has mentioned that all the appellants assaulted Kandey Biruli. He along with other witnesses, who are the family members, including male and female, father and mother and their in-laws, rushed there and saw all the appellants assaulting Kandey Biruli. This part of evidence could not be corroborated by himself as he had stated that he could not see as to who had possessed Chaku (dagger) and who had possessed Bhujati. In paragraph no. 32, he has stated that on Hulla, when Maran Biruli (P.W. 5). Kushal Biruli (P.W. 2), Jema Kui (P.W. 3), Kamla Kui (P.W. 7) and Kadama Kui (P.W. 4) and others came, then he informed them about the names of the appellants. On the other hand, in the Fard-beyan (Ext. 2), he has stated that all these witnesses along with him went to the house of appellant Duka Biruli and saw that all these appellants were assaulting Kandey Biruli. The other witnesses have stated that when they went to the place of occurrence, they did not see any appellant there, as they had already fled away. 9. In view of the above considered facts regarding the evidence of sole eye witness (P.W. 9), namely, Mangal Singh Biruli, we find contradictory evidence, which could not be supported by any of the other interested and co-related witness about the alleged assault made by these appellants on the person of Kandey Biruli. None of other interested witnesses, who are of the same family, has corroborated the evidence and Fard-beyan of the informant. The informant himself has contradicted that all the family members rushed there and saw the appellants assaulting Kandey Biruli. None of other interested witnesses, who are of the same family, has corroborated the evidence and Fard-beyan of the informant. The informant himself has contradicted that all the family members rushed there and saw the appellants assaulting Kandey Biruli. In course of evidence, other witnesses have simply deposed that when they went to the house i.e. the house of Duka Biruli, all the appellants had fled' away. The Village Munda (P.W. 10) had already recorded the statements of P.W. 9, his uncle (P.W. 2) an~ aunt (P.W. 3) and had obtained their L.T.ls., which he handed over to the police but that part of the document has not been produced to show as to which is the First Information Report given to the police. P.W. 12 (Ram Pratap Singh) has stated that while he was the Officer-in-Charge of Tonto Police Station, then in the morning of 6.8.1991 at about 8.15 a.m. he heard rumour that one person was murdered at Village-Durita. He entered S.C Entry No. 66 dated 6.8.1991 and proceeded for village Durita. That S.D. Diary No. 66 dated 6.8.1991 has also not beer brought on record. Therefore, it is not clear as to whether the Investigating Officer heard rumour in the morning of 6.8.1991 or he was informed about the same by the Village Munda (P.W. 10) and the informant in the night of 5.8.1991. This also create doubt in the prosecution story. The inform ant and others went to the house of Village Munda in the night itself and the matter was reported to him and their statement were recorded as per the evidence of the interested prosecution witnesses, who are co-related, on which their L.T.ls. were obtained. That part of the document should have been the First Information Report but that was suppressed by the Investigating Officer by stating that on the next morning he heard rumour at about 8.15 a.m. and accordingly, he entered S.D. Entry and thereafter, he proceeded to Village-Durita and recorded the Fard-beyan of the informant Mangal Singh Biruli (Ext. 2). Thus, I find that this Ext. 2 (Fard-beyan of Mangal Singh Biruli), recorded in the morning of 6.8.1991 at about 9.30 a.m. is not the First Information Report of this case, as is evident from the evidences of the prosecution witnesses. 10. 2). Thus, I find that this Ext. 2 (Fard-beyan of Mangal Singh Biruli), recorded in the morning of 6.8.1991 at about 9.30 a.m. is not the First Information Report of this case, as is evident from the evidences of the prosecution witnesses. 10. Admittedly there was land dispute since long and the alleged occurrence took place only because the appellants had gone to plough the land, which was objected by the prosecution party. Due to enmity it seems that finding on opportunity, all the appellants who are father and sons of the same family have been implicated in this case of murder. Thus I find that the prosecution case is doubtful. The Village Munda, namely Chamara Munda (P.W. 10) did not find any blood at the place where the dead body of Kandey Biruli was found on the Sahan of the house of Duka Biruli. I therefore, come to the conclusion that there is no one, who is the eye witness, to say that who caused murder of Kandey Siruli. P.W. 9 (the informant) has claimed himself to be the eye witness but he has contradicted his statement from the very beginning regarding the information given to the police and the Fard-beyan recorded by him in the next morning and thereafter, running of all the family members, who are witnesses, to the house of Duka Biruli. They did not see there assaulting anybody else, as stated in the Fard-beyan, which is very clear from their evidence. Mangal Singh Biruli (informant) has' also stated that when the appellants saw them, they fled away. This part of evidence has not been corroborated by the evidence of other witnesses, who are of the same family. 11. In view of the considered facts, I come to the conclusion that the prosecution case itself is doubtful. The evidence of the informant (P.W. 9), who claims himself to be the sole eye witness, is also doubtful. The place where Kandey Biruli had fallen down and whether there was any blood or not, is also doubtful, as the Investigation Officer himself did not disclose the fact that the alleged occurrence was reported by the Village Munda at Thana. That matter was suppressed and a fresh story regarding rumour and Sanha Entry and thereafter, proceeding to Village-Durita and recording the Fard-beyan of eye witness (P.W. 9) is full of doubts. That matter was suppressed and a fresh story regarding rumour and Sanha Entry and thereafter, proceeding to Village-Durita and recording the Fard-beyan of eye witness (P.W. 9) is full of doubts. Hence the appellants must be given the benefit of doubts in the facts and circumstances and the evidences available on the record. 12. In the result, this Criminal Appeal is allowed and the impugned order of conviction and sentence, passed by the learned court below, is hereby set aside. Since appellant nos. 1 and 2, namely, Balbhadro Biruli and Duka Biruli respectively are on ball, they are discharged from liabilities of their bail bonds. So far appellant nos. 3, 4 and 5, namely Gere Biruli, Manki Biruli and Daso Biruli, respectively are concerned, as they are in custody, they are directed to be set at liberty forthwith, if not wanted in any other case. S.J. Mukhopadhaya, J.-I agree.