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2002 DIGILAW 463 (JHR)

Santosh Tiu v. State of Bihar (Now Jharkhand)

2002-04-05

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
JUDGMENT : Lakshman Uraon, J.-The appellants have preferred this appeal against the judgment and order of conviction and sentence dated 29.1.1996 and 30.1.1996 respectively, passed by the learned Sessions Judge, Singhbhum West, Chaibasa, in Sessions Trial No. 33 of 1989, convicting both the appellants under Sections 302/34 and 201/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code. However, no separate sentence was passed under Section 201/ 34 of the Indian Penal Code. 2. The prosecution case, as per the Fard-beyan of the informant Mohan Lal Tiu (PW 1), is that in the night of 16.8.1988 at about 10.00 p.m. he (the informant) and his wife Sarswati Tiu (PW 5) had slept inside the room. On the verandah, his mother Radha Tiu and sister Sumitra Tiu' (both deceased) were sleeping on a khat towards west of verandah. On the same varandah towards eastern portion his Mama Saluka Khandegeya (PW 4) was also sleeping on a khat in a drunken state, as he had taken excess Haria on that day. The door of the room, in which the informant and his wife were sleeping was slightly open. At about 11.30 p.m. he heard the cry of his mother and sister. He lit the Diya and in the light of Diya through the slightly opened door, he saw that his mother and sister were being taken away by force by some persons. He identified in the light of Diya both the appellants, namely Suresh Tiu and Santosh Tiu. As the light of the Diya was dim hence he could not identify the other persons. Out of fear, he did not come out of his room. He remained inside his home and raised Hulla of Char-Char. After sometimes he came out of his home and saw that Suresh Tiu and Santosh Tiu along with others had already taken away his mother and sister. The informant went to his Mama Saluka Khandegeya (PW 4) and awoke him. He also went to the neighbour's home, awoke them, brought them to his home and narrated the story. He along with his Mama and villagers Mangra Tiu and Harish Sawaiya went in search of his mother and sister, but at night they failed to trace them out and returned home. He also went to the neighbour's home, awoke them, brought them to his home and narrated the story. He along with his Mama and villagers Mangra Tiu and Harish Sawaiya went in search of his mother and sister, but at night they failed to trace them out and returned home. On the next morning on 17.8.1988 at about 6.00 a.m. again he went in search of his mother and sister along with his Mama and villagers. They found the dead body of his mother Radha Tiu at Horlo village, near Jatra Gutu, in a field. There were injuries on her head with oozed blood. At a distance of 1 km. away, they found the dead body of Sumitra Tiu. She had also sustained piercing like injury near her mouth and her neck was tied with a rope. He asked his Mama (PW. 4) to watch the dead bodies. He went to inform his elder brother Bikram Tiu (PW. 3), who was in service at Tata Nagar. He came with his elder brother Bikram Tiu and by that time the police had also arrived at the place of occurrence. The informant gave Fard-beyan to the police. He has alleged that about 1 and 1/2 months ago on 9.7.1988 both these appellants had come to his home and were calling his mother and sister to be Dians (witch) and had picked up a quarrel and had threatened to kill them. 3. Both the appellants' were charged under Sections 302/34 as also 201/34 of the Indian Penal Code, to which they pleaded not guilty. In course of their examination also, there is total denial of their involvement in causing murder of the mother and sister of the informant. 4. The learned Sessions Judge, Singhbhum West, Chaibasa, after considering the evidence available on record, convicted both the appellants and sentenced them to undergo rigorous imprisonment for life under section 302/34 of the Indian Penal Code. However, no separate sentence was awarded for the charge under Section 201/34 of the Indian Penal Code, although they have been convicted on this count also. 5. The point for consideration before me is as to whether the order of conviction and sentence, passed by the learned court below can be sustained. 6. However, no separate sentence was awarded for the charge under Section 201/34 of the Indian Penal Code, although they have been convicted on this count also. 5. The point for consideration before me is as to whether the order of conviction and sentence, passed by the learned court below can be sustained. 6. In the present case, I find that the informant (PW 1-Mohan Lal Tiu) and his wife (PW 5-Sarswati Tiu) are the only eye witnesses, who were sleeping inside the room at the night of the alleged occurrence. The informant in his Fard-beyan has alleged that on 9.7.1988 i.e. one and half months prior to the alleged date of occurrence, both the appellants had gone to his house and had threatened to kill his mother and sister as they were Dians. The alleged occurrence took place at night when Saluka Khandegeya (P.W. 4) after taking excess Haria was sleeping on the eastern portion of the Varandah and on the western portion of the varandah both the deceased were sleeping on a khat. When the mother, sister and Mama were on the varandah, in that situation the informant (PW 1) was sleeping inside the room along with his wife (PW 5). It is alleged by the informant that the door was half opened. In such a situation, when the wife and husband were inside the room and in the outer varandah his mother, sister and Mama were sleeping, then it is not supposed that the door was left half opened by the informant and his wife, who were sleeping inside. It is against the human conduct of a married family to keep the door opened in such situation. However, PW 1 and P.W. 5 are the only eye witnesses of the alleged taking away of Radha Tiu and Sumitra Tiu out of their home. It was dark night. The informant has stated that out of fear he did not come out of his room. He claimed that he saw through the half opened door that both these appellants took away Radha Tiu (his mother) and Sumitra Tiu (his sister) out of the home. He claimed to have identified both the appellants only in the light of Diya. That Diya has not been seized by the Investigating Officer. He took the plea that as the light of the Diya was dim, hence he could not identify the others. He claimed to have identified both the appellants only in the light of Diya. That Diya has not been seized by the Investigating Officer. He took the plea that as the light of the Diya was dim, hence he could not identify the others. Out of fear the informant (PW. 1) raised Hulla of Char-Char by remaining inside his home. On Hulla 5 to 10 Mahalia people went there. He did not disclose them the names of these appellants, who took his mother and sister out of his home. At night, his mother and sister, on search, could not be traced out. On the next day, at Jatra Gutu on the boundary of village-Horlo, the dead body of his mother was found, having injuries on her hand and at some distance the dead body of his sister Sumitra Tiu was also found, having rope tied on her neck. Both the dead bodies were kept under the watch of his Mama (PW. 4). PW. 1 did not inform his Mama about the names of the assailants and went to inform his elder brother Bikram Tiu (PW. 3), who was in service at Tata Nagar. When he went to Tata Nagar and met his brother Bikram Tiu, even he did not disclose the name of the appellants to his brother Bikram Tiu. When he came back along with his brother Bikram Tiu, then the police had already arrived at the place of occurrence. His Fard-beyan was recorded at the place of occurrence on which he signed (Ext. 1). In his cross-examination in paragraph no. 14, the informant has stated that the door of his room was fully opened and through that fully opened door he saw that these appellants took his mother and sister out of the varandah. He denied that he had stated before the police that the door was half opened. In paragraph no. 18 he has again stated that when he informed the villagers about the alleged occurrence, he had not named these appellants, namely, Santosh Tiu and Suresh Tiu as they were the persons amongst others who took his mother and sister, as he was in hurry in search of his mother and sister. In the next morning Hari Sawaya and Nata Tiu, who have not been examined as witnesses in this case, went in search of the mother and sister of the informant along with other villagers. In the next morning Hari Sawaya and Nata Tiu, who have not been examined as witnesses in this case, went in search of the mother and sister of the informant along with other villagers. The informant (PW. 1) even in the morning did not disclose the names of these appellants to them as they took his mother and sister in the night. He also informed the Munda of the Village through a villager of village-Horlo. Even to them, the informant did not disclose the name of these appellants, stating that they took his mother and sister at night and since thereafter, the deed bodies were found. P.W. 3 (Bikram Tiu), elder brother of the informant, was simply informed that his mother and sister were murdered. The informant did not inform him about the names of these appellants who took them out of their home. P.W. 4 (Saluka Khandegeya) is the Mama of the informant, who was awakened by the informant, when the criminals along with the alleged appellants took Radha Tiu and Sumitra Tiu out of thier home. This witness in paragraph no. 3 has developed the story by saying that P.W.1 had informed him that both the appellants Suresh Tiu and Santosh Tiu took Radha Tiu and Sumitra Tiu. But the informant (PW. 1), namely, Mohan Lal . Tiu, has deposed that he did not inform his Mama (this Pw. 4) that both the appellants Suresh Tiu and Santosh Tiu took his mother and sister. In view of this fact, the evidence of this witness Saluka Khandegeya to this extent is inadmissible in the eyes of law. Moreover, Saluka Khandegeya (PW. 4) has deposed that both the deceased had informed him prior to the alleged occurrence that these appellants were calling them to be Oians. This witness has also deposed in paragraph no. 10 that before the Investigating Officer he has stated that PW. 1 (Mohan Lal Tiu) had named these appellants, who took both Radha Tiu and Sumitra Tiu out of their home. In this case, the Investigating Officer has not been examined and hence the contradictions in this respect could not be drawn by the defence. In view of this fact also, this part of evidence of P.W.4 is inadmissible. 7. P.W. 5 is Sarswati Tiu (Wife of the informant-P.W. 1), who claims herself to be the eye witness, stating that she and her husband (PW. In view of this fact also, this part of evidence of P.W.4 is inadmissible. 7. P.W. 5 is Sarswati Tiu (Wife of the informant-P.W. 1), who claims herself to be the eye witness, stating that she and her husband (PW. 1) were sleeping inside the inner room of the house. His mother-in-law (late Radha Tiu) and Nanad (late Sumitra Tiu) were sleeping on the varandah. The door, opening towards the varandah, was closed at that night and the inner door of that room was opened. At about mid might she came out by opening the door and saw Suresh Tiu and Santosh Tiu along with eight others, who had entered. In the light d Ohibri she identified only Suresh and Santosh (the appellants), who took her mother-in-law and Nanad. Her husband (P.W. 1) raised Hulla. She also raised Hulla. Saluka Khandegeya (P.W. 4) was also awakened. They went in search of Radha Tiu and Sumitra Tiu, but failed to trace them out in the night. In the morning their dead bodies were found. 8. The evidence of this witness (P.W. 5), who is wife of the informant (PW. 1) shows that there were two doors in the room in which they were sleeping at night. That room was opening with one door towards the varandah. As per the statement, that door was closed at night. On the other hand, the inner door was half opened. She has stated that she and her husband came out of the varandah by opening the door. This evidence of PW. 5 falsifies the evidence of her husband (PW. 1) that the door opening towards varandah was half opened and through that half opened door he saw these appellants, who took Radha Tiu and Sumitra Tiu. If it is supposed that PW. 1 and P.W. 5 were sleeping inside the room and heard the cry of Radha Tiu and Sumitra Tiu, then they lit the Diya. The husband Mohan Lal Tiu has deposed that out of fear he did not come out of the room and raised Hulla of Char-Char and claimed to have identified these appellants through the half opened door. On the other hand, the evidence of another eye witness (P.W. 5) indicates that the door towards varandah was closed and the inner door i.e. another second door was half opened. On the other hand, the evidence of another eye witness (P.W. 5) indicates that the door towards varandah was closed and the inner door i.e. another second door was half opened. When she (P.W. 5) heard the cry of her mother-in-law and Nanad then the Diya was burnt. She came out of the room by opening the door. In the light of Diya she also identified only these two appellants and none else as the light of Diya was dim. The doctor Bijai Kr. Singh (P.W. 6) has conducted post mortem examination on the dead bodies of Radha Tiu and Sumitra Tiu and has prepared the post-mortem examination report in his pen and signature (Exts. 3 and 3/1). He found injuries on the dead bodies of both the deceased. As there is no dispute regarding the death of Radha Tiu and Sumitra Tiu, hence I do not want to discuss in detail the medical evidence regarding injuries sustained on the dead boches. The only defence is that they are not the persons, who took Radha Tiu and Sumitra Tiu out of their home and thereafter, their dead bodies were found in the next morning. 9. In the present case, the prosecution has not examined the Investigating Officer. On the other hand, a formal witness (P.W. 7 Babu Ram Eichagutu) has proved the formal First Information Report (Ext. 4). 10. As in this case, the prosecution has not examined the Investigating Officer, hence the description of the house of the informant is not clear. As per the deposition of two eye witnesses, who are interested and husband and wife, they have given contradictory statements regarding the position of the house, opening of the door and the place where they were sleeping at three different places. Inside the room P.W. 1 (Mohan Lal Tiu) and P.W. 5 (Sarswati Tiu) were sleeping. On the varandah in the eastern portion P.W. 4 (Saluka Khandegeya) was sleeping and on the same varandah towards western portion Radha Tiu and Sumitra Tiu were sleeping on a khat. As per the deposition of P.W. 1, the door which was opening towards varandah was half opened but in course of evidence he has deposed that the door was fully opened. He has developed this story only because he did not come out of the room on hearing some sound of his mother and sister. As per the deposition of P.W. 1, the door which was opening towards varandah was half opened but in course of evidence he has deposed that the door was fully opened. He has developed this story only because he did not come out of the room on hearing some sound of his mother and sister. On the other hand, he has deposed that he simply lit the Diya and from inside his house he saw that his sister and mother were being taken away by these appellants. It is not possible that the half opened door was so nearer to the bed of his mother and sister that in a dim light of Diya he could have identified both these appellants. This so happens that towards the west of the varandah Radha Tiu and Sumitra Tiu were sleeping on a khat. The light through the half opened door could not have travelled towards west of the varandah. If this is the situation, then there was no possibility of identifying both the appellants in the dim light of Diya. Due to previous allegation as against these appellants, that they were calling Radha Tiu and Sumitra Tiu as Dians, he claimed to have identified only these two appellants in the dim light of Diya. As the Investigating Officer in this case has not been examined, hence the contradictions, which are there in the evidence of P.W. 1 and P.W. 5 (husband and wife), the only eye witnesses, could not be taken by the appellants. Moreover the house of the informant, which is the place of occurrence itself, has also not been established by the prosecution. The alleged occurrence took place in the night. Both the deceased namely Radha Tiu and Sumitra Tiu were taken out of that house (place of occurrence). At night PW 1 claims that he did not come out of his house when his mother and sister were taken away when the appellants had left that place then he awakened his Mama (P.W. 4). He did not inform him the names of these appellants at night. The other villagers were also informed, who came and went in search of Radha Tiu and Sumitra Tiu. Before them also P.W. 1 did not disclose the names of these appellants, taking plea that he was in hurry. He did not inform him the names of these appellants at night. The other villagers were also informed, who came and went in search of Radha Tiu and Sumitra Tiu. Before them also P.W. 1 did not disclose the names of these appellants, taking plea that he was in hurry. In the next morning the villagers went in search of Radha Tiu and Sumitra Tiu and the dead bodies of both Radha Tiu and Sumitra Tiu were found in Horlo village. In the morning also the informant (P.W. 1) did not disclose the names of these appellants before the villagers, who had gone in search of Rahda Tiu and Sumitra Tiu. When the dead bodies were found, he left his Mama (Saluka Khandegeya) there. He himself went to Tata Nagar to inform his elder brother Bikram Tiu. He even did not disclose the name of these appellants to his brother Bikram Tiu either at Tata Nagar or in the way before the village home. 11. Thus, in view of the above considered evidence, the facts regarding the door, whether it was fully closed or half opened and identification in the light of dim Diya of only these two appellants and none else as also the facts as to whether P.W. 1 and P.W. 5 had come out of their rooms at that time when Radha Tiu and Sumitra Tiu were being taken away by these appellants and other villagers, are also not clear. It is also not clear as to whether they saw these appellants from there itself or when they came out of the room, as stated by PW 5 (Sarswati Tiu), they saw these appellants in the dim light of Diya. All these contradictory evidences of these two interested eye witnesses, namely P.W. 1 and PW 5 create doubt in the mind about the identification as alleged by them in the dim light of Diya, in view of the fact that neither any villager nor any independent witnesses has come forward to support the prosecution. The elder brother of the informant (P.W. 1) is also a hearsay witness. The investigating Officer has also not been examined in this case. Thus, I find that there is doubt in view of the above contradictory statements, as discussed by me, and deposed by the two eye witnesses i.e. the informant (P.W. 1) and his wife Sarswati Tiu (P.W. 5). The investigating Officer has also not been examined in this case. Thus, I find that there is doubt in view of the above contradictory statements, as discussed by me, and deposed by the two eye witnesses i.e. the informant (P.W. 1) and his wife Sarswati Tiu (P.W. 5). Accordingly, I come to the conclusion that it was not possible to identify these appellants, in the circumstances, as discussed by me in the above paragraphs. In my view, there is doubt regarding involvements of these appellants in taking away Radha Tiu and Sumitra Tiu at night. At night the villagers could not trace out them rather in the morning at 6.00 a.m. the dead bodies of Radha Tiu and Sumitra Tiu were found. The doctor (P.W. 6) who conducted the post-mortem examinations, has found injuries on their person, which were the cause of their death. Thus, the death is there, which has not been challenged. But the involvement of these appellants in the alleged dragging of Radha Tiu and Sumitra Tiu and later on causing their murder and the dead bodies having been found far away from the village, creates doubt in my mind. Thus, benefit of doubt must go to these appellants. 12. In the result, this Criminal Appeal is allowed and the impugned judgment and order of conviction and sentence, passed by the learned court below vide Sessions Trial No. 33 of 1999 are hereby set aside. As both the appellants are in custody, they are ordered to be released forthwith from the custody, if not required in any other case. " Vikramaditya Prasad, J.-I agree.